Fizer v. Ryan et al

Filing 12

ORDER: The Report and Recommendation 10 is ADOPTED and the Petition for Writ of Habeas Corpus is DENIED and DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED a Certificate of Appealability and leave to proceed in forma pauperis on appeal is DENIED because the dismissal of the Amended Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable. Signed by Senior Judge Roslyn O Silver on 3/23/2017. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Terrance Andrei Fizer,
Petitioner,

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ORDER

v.

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No. CV-16-03174-PHX-ROS

Charles L Ryan, et al.,

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Respondents.

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Magistrate Judge John Z. Boyle issued a Report and Recommendation concluding

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Petitioner Terrance Andrei Fizer’s petition for writ of habeas corpus was filed eight days

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too late. In his objections Petitioner argues he was unable to file his petition on time

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because he had been transferred between facilities and he is unfamiliar with “the Arizona

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Prison System.” (Doc. 11 at 3). These arguments appears to be an attempt to establish

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equitable tolling. But “the threshold necessary to trigger equitable tolling . . . is very

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high, lest the exceptions swallow the rule.” Waldron-Ramsey v. Pacholke, 556 F.3d

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1008, 1011 (9th Cir. 2009) (quotation marks and citation omitted). Petitioner does not

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explain when his transfer occurred or how it prevented him from filing his petition on

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time. And Petitioner’s unfamiliarity with the criminal justice system is not sufficient to

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justify equitable tolling. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006)

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(“[A] pro se petitioner’s lack of legal sophistication is not, by itself, an extraordinary

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circumstance warranting equitable tolling.”).

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Accordingly,

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IT IS ORDERED the Report and Recommendation (Doc. 10) is ADOPTED and

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the Petition for Writ of Habeas Corpus is DENIED and DISMISSED WITH

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PREJUDICE.

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IT IS FURTHER ORDERED a Certificate of Appealability and leave to proceed

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in forma pauperis on appeal is DENIED because the dismissal of the Amended Petition

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is justified by a plain procedural bar and jurists of reason would not find the procedural

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ruling debatable.

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Dated this 23rd day of March, 2017.

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Honorable Roslyn O. Silver
Senior United States District Judge

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