Turnbo v. Ryan

Filing 23

ORDER that the Petition for Habeas Corpus is DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED because Mr. Turnbo has not "made a substantial showing of the denial of a constitutional right" as required by 28 U.S.C. § 2253(c)(2). The Clerk of Court shall enter a final judgment accordingly. Signed by Judge Sharon L Gleason on 10/7/2015. (KMG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

Shane Marcus Turnbo,
Petitioner,
vs.
Charles L. Ryan, DOC Director, and
State of Arizona,

Case No. 2:14-cv-00113-PHX-SLG

Respondents.

ORDER DENYING PETITION FOR HABEAS CORPUS
Before the Court at Docket 1 is the Petition for Writ of Habeas Corpus filed by
Petitioner Shane Marcus Turnbo pursuant to 28 U.S.C. § 2254. An Answer to the Petition
was filed at Docket 18. On April 24, 2015, at Docket 19, Magistrate Judge Michelle H.
Burns issued a Report and Recommendation. The Magistrate Judge concluded that
Mr. Turnbo’s petition was time-barred and recommended that this action be dismissed
with prejudice. Mr. Turnbo filed Objections to the Report and Recommendation (Docket
22).
The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1). That statute
provides that a district court “may accept, reject, or modify, in whole or in part, the findings

or recommendations made by the magistrate judge.” 1 The court is to “make a de novo
determination of those portions of the [magistrate judge’s] report or specified proposed
findings or recommendations to which objection is made.”2 But when no objections are
filed, “[n]either the Constitution nor [28 U.S.C. § 636(b)(1)] requires a district judge to
review, de novo, findings and recommendations that the parties themselves accept as
correct.” 3
The Antiterrorism and Effective Death Penalty Act (AEDPA) creates a one year
statute of limitations for an application for a writ of habeas corpus to be filed by a person
in custody pursuant to the judgment of a state court. 4 The Report and Recommendation
thoroughly sets out the applicable law on the standards for habeas relief, as well as the
law on statutory and equitable tolling. It concludes that Mr. Turnbo filed his habeas
petition approximately four years after the one year statute of limitations expired and that
the statute of limitations was not equitably tolled during this period.
Mr. Turnbo does not object to the magistrate’s conclusion that his petition falls
outside of AEDPA’s one year statute of limitations. Instead, he asserts that there is a
rebuttable presumption that equitable tolling applies.

But the cases upon which

Mr. Turnbo relies hold only that equitable tolling is available in AEDPA cases; they do not

1

28 U.S.C. § 636(b)(1).

2

Id.

3

United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); see also Thomas v. Arn,
474 U.S. 140, 150 (1985) (“It does not appear that Congress intended to require district court
review of a magistrate’s factual or legal conclusions, under a de novo or any other standard,
when neither party objects to those findings.”).

4

28 U.S.C. § 2244(d)(1).

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presume that equitable tolling applies in this habeas action without any showing by the
petitioner. 5 Although the main case on which Mr. Turnbo relies, Holland v. Florida, uses
the term “rebuttable presumption” which Mr. Turnbo quotes, 6 the Supreme Court
appeared to be using that term in the context of adding doctrinal support for its holding
that equitable tolling should be available. The Court does not read Holland as granting a
rebuttable presumption to each litigant that equitable tolling applies. Rather, in Holland
the Supreme Court held, as Mr. Turbo acknowledges, that before a petitioner is entitled
to equitable tolling, the petitioner must show “ ‘(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented
timely filing.” 7 Moreover, a “high threshold [for] extraordinary circumstances is necessary
‘lest the exceptions swallow the rule.’ ”8 Accordingly, Mr. Turnbo must demonstrate each
of these two requirements in order for equitable tolling to apply in his case.
Mr. Turnbo also asserts that the Magistrate Judge failed to consider as a whole
the circumstances supporting his argument that equitably tolling should apply during the
four year period. He asserts that the evidence and his allegations show that he was

Holland v. Florida, 560 U.S. 631, 649 (2010) (holding that the AEDPA is subject to equitable
tolling so long as the petitioner shows that he was diligent and extraordinary circumstance
prevented him filing); Lawrence v. Florida, 549 U.S. 327, 336-37 (2007) (declining to apply
equitable tolling based on attorney’s miscalculation of deadline); Irwin v. Dep’t of Veterans
Affairs, 498 U.S. 89, 95 (1990) (allowing equitable tolling to be applied against the government
as well as private parties in an employment discrimination action).

5

6

560 U.S. at 645-46.

7

Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).

Lakey v. Hickman, 633 F.3d 782, 786 (9th Cir. 2011) (quoting Mendoza v. Carey, 449 F.3d
1065, 1068 (9th Cir. 2006)).

8

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“pursuing his rights diligently” and was delayed by “exceptional circumstances.”9 But the
Magistrate Judge carefully considered and evaluated each of Mr. Turnbo’s reasons for
equitable tolling, and this Court, on de novo review, concludes that these reasons, when
considered together, do not demonstrate that Mr. Turnbo is entitled to equitable tolling. 10
Based on this Court’s review, and on de novo consideration of Mr. Turnbo’s

objections, the Court finds that Mr. Turnbo’s action for habeas relief is untimely and that
equitable tolling is not warranted.

The Court thereby ACCEPTS the Report and

Recommendation of Magistrate Judge Michelle H. Burns in its entirety.
Accordingly, IT IS ORDERED that the Petition for Habeas Corpus is DISMISSED
WITH PREJUDICE.
IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED because
Mr. Turnbo has not “made a substantial showing of the denial of a constitutional right” as
required by 28 U.S.C. § 2253(c)(2). 11

9

See, e.g., Pace, 544 U.S. at 418 (“A litigant seeking equitable tolling bears the burden of
establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way.”).
Mr. Turnbo’s request for an evidentiary hearing is also denied because his allegations, even if
proven, would be insufficient to provide a basis for equitable tolling. See Laws v. Lamarque, 351
F.3d 919, 919 (9th Cir. 2003) (holding that a habeas petitioner “should receive an evidentiary
hearing when he makes ‘a good-faith allegation that would, if true, entitle him to equitable
tolling’ ” (quoting Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006))).

10

11

See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (a certificate of appealability may be
granted only if the applicant has made “a substantial showing of the denial of a constitutional
right,” i.e., a showing that “reasonable jurists could debate whether . . . the petition should have
been resolved in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further” (internal quotation marks and citations omitted)).

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The Clerk of Court shall enter a final judgment accordingly.
Dated this 7th day of October, 2015.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

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