Moss #43775 v. Ryan et al

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATION: Judge Burns' 13 Report and Recommendation is accepted; the petition for writ of habeas corpus 1 is denied with prejudice; the Clerk is directed to terminate this action. Signed by Judge David G Campbell on 5/24/16. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Edward Paul Moss,

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No. CV15-2600-PHX-DGC
ORDER

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Petitioner,

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v.

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Charles L Ryan, et al.,

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Respondents.

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On December 21, 2015, Petitioner Edward Paul Moss filed a pro se petition for

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writ of habeas corpus pursuant to 28 U.S.C. § 2254. Doc. 1. The Court referred the

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petition to Magistrate Judge Michelle H. Burns. Doc. 5. On April 14, 2016, Judge Burns

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issued a report and recommendation (“R&R”) that the Court dismiss the petition as

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untimely. Doc. 13. Moss filed pro se objections to the R&R. Doc. 14. The Court will

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overrule these objections and adopt Judge Burns’s recommendation.

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The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

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establishes a one-year statute of limitations for habeas petitions filed by state prisoners.

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28 U.S.C. § 2244(d)(1). As relevant here, the limitations period runs from “the date on

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which the judgment became final by the conclusion of direct review or the expiration of

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the time for seeking such review.” § 2244(d)(1)(A). The limitations period is subject to

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both statutory and equitable tolling. Statutory tolling is available for “[t]he time during

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which a properly filed application for State post-conviction or other collateral review

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with respect to the pertinent judgment or claim is pending.” § 2244(d)(2). Equitable

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tolling is available where “extraordinary circumstances beyond a prisoner’s control

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ma[d]e it impossible to file a petition on time.” Roy v. Lampert, 465 F.3d 964, 968 (9th

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Cir. 2006). In addition, a petitioner is entitled to an equitable exception to the AEDPA’s

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statute of limitations if he makes “a credible showing of actual innocence.” McQuiggin

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v. Perkins, 133 S. Ct. 1924, 1931 (2013).

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Judge Burns recommended that the Court dismiss Moss’s petition as untimely.

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She found that (1) the statute of limitations began to run on January 3, 2009, when the

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Maricopa County Superior Court denied Moss’s petition for post-conviction review;

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(2) the limitations period ran uninterrupted for one year until it expired; and (3) Moss was

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not entitled to equitable tolling because “nothing in the record suggest[ed] that [he]

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pursued his rights diligently, or that an external force prevented him from timely filing a

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federal habeas petition.” Doc. 13 at 7-8.

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Moss does not dispute that his petition is untimely, nor does he contend that he is

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actually innocent. Instead, Moss argues that he is entitled to equitable tolling because he

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diligently pursued his rights and faced extraordinary circumstances that prevented him

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from timely filing his petition. Doc. 14 at 3.

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“[E]quitable tolling is unavailable in most cases.” Miranda v. Castro, 292 F.3d

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1063, 1066 (9th Cir. 2002) (citation and quotation marks omitted). “[T]he threshold

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necessary to trigger equitable tolling under AEDPA is very high, lest the exceptions

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swallow the rule.” Id. (citation omitted, alterations incorporated). Moss argues that he

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faced extraordinary circumstances because he was unable to access a law library, he was

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ignorant of the AEDPA, and he was limited in his ability to interact with other inmates

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who might have been more knowledgeable about the law. These do not constitute

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extraordinary circumstances. See Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir. 2009)

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(ordinary prison limitations on access to legal materials, including limitations related to

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administrative segregation, do not constitute extraordinary circumstances); Rasberry v.

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Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (“a pro se petitioner’s lack of legal

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sophistication is not, by itself, an extraordinary circumstance warranting equitable

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tolling”); Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998) (the fact that petitioner

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“simply did not know about the [statute of limitations] in the AEDPA until it was too

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late” was not an extraordinary circumstance). Moss’s petition is nearly six years late and

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he not identified any extraordinary circumstances which explain this delay. The Court

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will therefore accept the R&R and deny the petition as untimely.

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IT IS ORDERED:

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Judge Burns’s R&R (Doc. 13) is accepted.

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2.

The petition for writ of habeas corpus (Doc. 1) is denied with prejudice.

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3.

The Clerk of the Court is directed to terminate this action.

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Dated this 24th day of May, 2016.

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