Isham v. Ryan et al

Filing 19

ORDER ACCEPTING REPORT AND RECOMMENDATION 17 - The Objection (Doc. 18 ) is overruled as specified above. The Petition (Doc. 1 ) is denied and dismissed with prejudice and the Clerk of the Court shall enter judgment accordingly. IT IS FUTHER ORD ERED that pursuant to Rule 11 of the Rules Governing Section 2254 Cases, in the event Petitioner files an appeal, the Court denies issuance of a certificate of appealability because dismissal of the petition is based on a plain procedural bar and jurists of reason would not find this court's procedural ruling debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). (See document for further details). Signed by Senior Judge James A Teilborg on 7/7/17. (LAD)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Michael Darrin Isham, Petitioner, 10 11 ORDER v. 12 No. CV-16-02918-PHX-JAT Charles L Ryan, et al., 13 Respondents. 14 15 Pending before this Court is Petitioner’s Petition for Writ of Habeas Corpus 16 (“Petition”). (Doc. 1). Respondent has filed a Response to which the Petitioner filed a 17 Reply. (Docs. 14; 16). The Magistrate Judge to whom this case was assigned issued a 18 Report and Recommendation. (“R&R”) (Doc. 17). In the R&R, the Magistrate Judge 19 recommended that that the Petition be denied and dismissed because it is barred by the 20 statute of limitations. The R&R further recommended that a certificate of appealability 21 be denied. In response, Petitioner filed an Objection to the R&R. (Doc. 18). 22 This Court “may accept, reject, or modify, in whole or in part, the findings or 23 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Further, this 24 court must review the “portions of the [Magistrate Judge’s] report to which objection is 25 made” by either party. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 26 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 27 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that de novo review of 28 factual and legal issues is required if objections are made, ‘but not otherwise.’”). 1 I. 2 Objection Petitioner’s Petition and Reply asserted the following single ground for relief: He claims that the prosecutor has refused to disclose a videotape that would exonerate Petitioner and that Petitioner’s counsel has failed to request the videotape. Petitioner asserts that this violates his Fourth, Fifth, Sixth, and Fourteenth Amendment rights, as well as his rights under Brady v. Maryland, 373 U.S. 83 (1963). 3 4 5 6 (Doc. 5 at 2). 7 made in his Petition and Reply. (Docs. 1; 16; 18). The only new, cognizable claim the 8 Court was able to identify in the Objection was Petitioner’s argument that the purported 9 destruction of the videotape on October 15, 2015 constituted newly discovered evidence 10 and would be a factual predicate that would reset the limitations period to start running 11 from that date. (Doc. 18 at 3). Petitioner’s Objection to the R&R essentially reargues claims already 12 The R&R based its decision solely on the statute of limitations and did not address 13 Respondents other defenses. (Doc. 17 at 13). Therefore, in accordance with Reyna- 14 Tapia, the Court will limit its de novo review to the sole objected to issue of whether or 15 not the videotape’s purported destruction will impact the commencement of the 16 limitations period. 17 II. Statute of Limitations 18 Petitions for writs of habeas corpus are governed by the Anti-Terrorism and 19 Effective Death Penalty Act (“AEDPA”) which provides a one-year statute of limitations 20 for petitioners to state their claims. 21 limitations period begins “when the judgment became final by the conclusion of direct 22 review of the expiration of the time for seeking such review,” but it can be reset to “the 23 date on which the factual predicate of the claim or claims presented could have been 24 discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(A),(D). The 25 period of direct review before the judgment becomes final includes a “90-day period 26 within which a petitioner can file for a writ of certiorari from the United States Supreme 27 Court, even if the petitioner does not actually file such a petition.” Spitsyn v. Moore, 28 345 F.3d 796, 798 (9th Cir. 2003) (citing Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 28 U.S.C. § 2244(d) (2006). -2- Normally the 1 1999). 2 Here, Petitioner’s judgment became final on July 28, 2013, 90 days after the 3 Arizona Supreme Court denied review of Petitioner’s direct appeal on April 29, 2013. 4 (Docs. 1 at 3; 17 at 3). AEDPA’s one-year statute of limitations began to run the next 5 day giving Petitioner until July 29, 2014 to file his Petition, absent any factors which 6 would provide tolling. 7 A. 8 Petitioner argues that a videotape he claims was suppressed by the prosecution 9 would exonerate him and that the destruction of the videotape on October 15, 2015 10 qualifies as newly discovered evidence that would be a factual predicate of this claim and 11 reset the start date of the one year limitations period. (Doc. 18 at 3). Factual Predicates 12 “Section 2244(d)(1)(D) provides a petitioner with a later accrual date than section 13 2244(d)(1)(A) only if vital facts could not have been known by the date the appellate 14 process ended. The due diligence clock starts ticking when a person knows or through 15 diligence could discover the vital facts, regardless of when their legal significance is 16 actually discovered.” Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir. 2012) (citations 17 omitted). 18 While Petitioner’s claim relies on the videotape, it does not qualify as the factual 19 predicate of the claim. Rather, the factual predicate of his claim is his discovery of the 20 videotape’s existence, which occurred on July 2, 2012, more than a year before his 21 judgment became final and two years before the limitations period ended as per section 22 2244(d)(1)(A). (Doc. 1 at 6). Because Petitioner was aware of the videotape for more 23 than two years prior to the limitations period ending, the Court finds that its alleged 24 destruction cannot be a newly discovered factual predicate that would reset the start date 25 of the limitations period. See, e.g., United States v. Lockett, 919 F.2d 585, 591 (9th Cir. 26 1990) (in the context of Federal Rule of Criminal Procedure 41, “newly discovered 27 evidence” does not mean “newly available evidence”); Flanagan v. Johnson, 28 154 F.3d 196, 199 (5th Cir. 1998) (“[Petitioner] is confusing his knowledge of the factual -3- 1 predicate of his claim with the time permitted for gathering evidence in support of that 2 claim”). 3 B. 4 The Court agrees with the R&R’s finding that Petitioner is not entitled to statutory 5 or equitable tolling. (Doc. 17 at 8, 12). As determined in subsection (A) above, Petitioner 6 cannot receive a later accrual date under § 2244(d)(1)(D) due to a newly discovered 7 factual predicate. Absent any tolling, Petitioner’s one year period to file commenced on 8 July 29, 2013 and expired on July 29, 2014. Therefore, Petitioner’s August 22, 2016 9 Petition was more than two years delinquent. (Doc. 1). Petitions filed beyond this one Timeliness 10 year limitations period are barred and must be dismissed. 28 U.S.C. § 2244(d). 11 III. Conclusion 12 Based on the foregoing, 13 IT IS ORDERED that the Report and Recommendation (Doc. 17) is accepted. 14 The Objection (Doc. 18) is overruled as specified above. The Petition (Doc. 1) is denied 15 and dismissed with prejudice and the Clerk of the Court shall enter judgment accordingly. 16 IT IS FUTHER ORDERED that pursuant to Rule 11 of the Rules Governing 17 Section 2254 Cases, in the event Petitioner files an appeal, the Court denies issuance of a 18 certificate of appealability because dismissal of the petition is based on a plain procedural 19 bar and jurists of reason would not find this court’s procedural ruling debatable. See 20 Slack v. McDaniel, 529 U.S. 473, 484 (2000). 21 Dated this 7th day of July, 2017. 22 23 24 25 26 27 28 -4-

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