Michael v. Ryan et al

Filing 15

ORDER ACCEPTING REPORT AND RECOMMENDATIONS 13 . Accordingly, IT IS ORDERED DENYING AND DISMISSING WITH PREJUDICE the petition for writ of habeas corpus (doc. 7) and DENYING the motion to stay (doc. 1). IT IS FURTHER ORDERED DENYING a certificate of appealability and leave to proceed in forma pauperis on appeal because dismissal of the petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable. Signed by Judge Frederick J Martone on 1/7/13. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Petitioner,
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vs.
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Charles L. Ryan; Attorney General of the)
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State of Arizona,
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Respondents.
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John Vincent Michael, II,

No. CV 12-08148-PCT-FJM
ORDER

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The court has before it petitioner’s petition for writ of habeas corpus pursuant to 28
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U.S.C. § 2254 (doc. 7), petitioner’s motion to stay the petition for writ of habeas corpus (doc.
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1), respondents’ answer to the petition and opposition to the motion to stay (doc. 11), and
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petitioner’s reply (doc. 12). We also have before us the United States Magistrate Judge’s
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report and recommendation (doc. 13) and petitioner’s objections (doc. 14).
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Pursuant to a plea agreement, petitioner pled guilty to 2 counts of vehicular
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manslaughter with prior felony convictions, and to 3 counts of felony endangerment. He was
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sentenced to 2 concurrent 25-year terms of imprisonment on the manslaughter counts and to
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3 consecutive 3-year terms of imprisonment for each of the endangerment counts, for a total
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of 34 years.
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The Magistrate Judge found that the habeas petition is barred by the statute of
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limitations set forth in the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28

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U.S.C. § 2244(d)(1). The statute of limitations expired on October 16, 2006, but petitioner

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did not file this habeas petition until July 30, 2012, almost 6 years late. Therefore the

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Magistrate Judge recommends that the habeas petition and the motion for stay be denied.

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Petitioner does not argue that his habeas petition is timely. Instead, he challenges the

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constitutionality of AEDPA’s statute of limitations and argues that he is entitled to equitable

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tolling. We disagree.

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It is well established that AEDPA’s one-year statute of limitations is not per se

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unconstitutional. See Green v. White, 223 F.3d 1001, 1003 (9th Cir. 2000) (holding that

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AEDPA’s statute of limitations is not unconstitutional under the Suspension Clause). To be

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unconstitutional, the statute of limitations would have to bar habeas relief entirely or

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otherwise render relief “inadequate or ineffective.” Id. Although the statute of limitations

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restricts the time period for filing a habeas petition, it does not render habeas relief

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ineffective. Moreover, AEDPA allows “equitable tolling” when a petitioner can show that

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he has been pursuing his rights diligently and that some extraordinary circumstance stood in

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the way of his filing a timely petition. Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S. Ct.

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1807, 1814 (2005).

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Here, petitioner argues that he is entitled to equitable tolling because he received

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ineffective assistance of counsel and because he was in a coma for 6 weeks in 2012. He does

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not demonstrate, however, that his counsel’s failure to seek state post-conviction relief

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prevented him from filing a timely petition, nor does he explain how his injury in 2012 posed

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an impediment to filing his habeas petition before October 16, 2006. We agree with the

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Magistrate Judge that petitioner is not entitled to equitable tolling.

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IT IS ORDERED ACCEPTING the recommended decision of the United States

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Magistrate Judge pursuant to Rule 8(b), Rules Governing § 2254 Cases. Accordingly, IT IS

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ORDERED DENYING AND DISMISSING WITH PREJUDICE the petition for writ of

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habeas corpus (doc. 7) and DENYING the motion to stay (doc. 1).

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IT IS FURTHER ORDERED DENYING a certificate of appealability and leave
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to proceed in forma pauperis on appeal because dismissal of the petition is justified by a

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plain procedural bar and jurists of reason would not find the procedural ruling debatable.

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DATED this 7th day of January, 2013.

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