Sapp v. Blair, et al

Filing 29

*ORDER ADOPTING 25 REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus : Recommending that Dismiss the Petition for Writ of Habeas Corpus. Motions terminated: 28 MOTION for Disposition and Final Decision Order. Petition for Writ of Habeas Corpus is DENIED, Judgement to be entered accordingly. Signed by Senior Judge Frank R Zapata on 9/14/11. (SMBE) Modified on 9/15/2011 to correct typo (enteren to entered) (SMBE).*

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Steven L. Sapp,
Petitioner,

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vs.

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Charles Ryan, et al.,

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Respondents.

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No. CV 05-050-TUC-FRZ
ORDER

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Before the Court for consideration is the Petition for Writ of Habeas Corpus pursuant

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to 28 U.S.C. § 2254 filed by Petitioner Steven L. Sapp in this action and the Report and

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Recommendation of the Magistrate Judge, recommending the dismissal of the Petition.

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This matter was referred to Magistrate Judge D. Thomas Ferraro pursuant to Rules

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72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and report and

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recommendation.

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Magistrate Judge Ferraro issued his Report and Recommendation, recommending that

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the Court enter an order denying the Petition for Writ of Habeas Corpus and dismissing this

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action in its entirely as untimely under the Antiterrorism and Effective Death Penalty Act of

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1996, 28 U.S.C. § 22543(d)(“AEDPA”), based on Petitioner’s failure to establish entitlement

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of statutory or equitable tolling.

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The Report and Recommendation sets forth the factual and procedural history of
Petitioner’s state court proceedings and the conviction at issue.

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Petitioner seeks review on 12 separate grounds of his conviction in Cochise County

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Superior Court of Arizona, case number CR–98000325, in which Petitioner was convicted

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by jury on March 24, 1999 of (1) possession for sale of a dangerous drug

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(methamphetamine), a class 2 felony; (2) possession of drug paraphernalia, a class 6 felony;

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and (3) driving on a suspended license, a class 1 misdemeanor, all which occurred on July

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6, 1998.

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Based on a prior conviction, Petitioner was sentenced on June 14, 1999 to a nine-year-

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three-month prison term on the drug possession charge, a concurrent 1one year and nine

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months on the paraphernalia possession charge. He also received a consecutive one year

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probation term on the misdemeanor charge.

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As set forth in detail in the Report and Recommendation, Petitioner has not

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demonstrated that an extraordinary circumstance prevented him from timely filing, and

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therefore, Petitioner failed to reach the high threshold to establish entitlement to statutory or

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equitable tolling.

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Petitioner filed his objections to the Report and Recommendation pursuant to 28

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U.S.C. §636(b), arguing both that the present petition and accompanying habeas petitions1

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were timely and also “that an extraordinary circumstance prevented him from timely filing

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as he diligently pursued his rights,” challenging the state court rulings on both procedural and

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substantive grounds, alleging innocence and miscarriage of justice.

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The Court finds, after consideration of the matters presented and an independent

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review of the record herein, that the Petition should be denied and this action be dismissed

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as recommended.

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Based on the foregoing,

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Petitioner filed CV 05-050-TUC-FRZ; CV 05-051-TUC-FRZ and CV 05-052-TUCFRZ on January 27, 2005, challenging the unrelated, unconsolidated convictions in Cochise
County Superior Court in case numbers CR–98000325, CR–98000452 and
CR–97000484(B), respectively.
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IT IS ORDERED that Magistrate Judge Ferraro’s Report and Recommendation [Doc.

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25] is hereby ACCEPTED AND ADOPTED as the findings of fact and conclusions of law

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by this Court;

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IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus is DENIED;

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IT IS FURTHER ORDERED that judgment be entered accordingly.

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DATED this 14th day of September, 2011.

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