Dutcher v. Stewart, et. al

Filing 21

ORDER adopting 18 Report and Recommendations. Objections raised by the Petitioner are Overruled. Petition for Writ of Habeas Corpus is DENIED with Prejudice. Final Judgment to be entered. This action is closed. Signed by Judge David C Bury on 7/6/09.(LSI, )

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This matter was referred to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b) and the local rules of practice of this Robert William Dutcher, ) ) Petitioner, ) v. ) ) ) Robert Stewart, et al., ) ) Respondents. ) ______________________________________ ) CV-08-015-TUC-DCB UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

ORDER

Court for a Report and Recommendation (R&R) on the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §2254. Before the Court is the Magistrate Judge's Report and Recommendation, which recommends that the Petition be denied and dismissed. The Petitioner filed Objections to a Response to

Report and Recommendation and the Respondents filed Objections. PETITIONER'S OBJECTIONS

Petitioner objects to the Report and Recommendation because: (1) "There is nothing in the controlling statute setting forth the period of time in which a person in custody in a state court is required to file for post-conviction relief", (Objections at 2); and (2) "Although not previously put before this Honorable Court, Petitioner was mentally unable to pursue relief in any court...Petitioner now asserts that his

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mental health coupled with the lack of reference materials and inability to obtain his legal file demonstrate adequate diligence and extraordinary circumstances to permit equitable tolling." STANDARD OF REVIEW When objection is made to the findings and recommendation of a magistrate judge, the district court must conduct a de novo review. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). DISCUSSION Petitioner must file a federal habeas petition in a district court within 1 year of the conviction's finality, and not a single day of that 1-year period will be deemed to have run during any period in which a properly filed application for State post-conviction relief remained "pending" in State court under § 2244(d)(2). See Duncan v. Walker, 533 U.S. 167, 172­74 (2001). That Petitioner timely applied for State postconviction relief after the federal limitations period ended cannot transform that limitations period into something that unfairly closes the federal courthouse doors. Ferguson v. Palmateer, 321 F.3d 820 (9th Cir. 2003) . Petitioner's objection contradicts the explicit language of § (Objections at 4-5.)

2244(d)(2) that tolls the federal 1-year limitations period for a properly filed post-conviction petition that is "pending" during the federal limitations period. That Petitioner properly and timely filed his post-conviction petition after the federal limitations period expired means that the federal limitations period did, in fact, expire. See Ferguson, 321 F.3d at 823. This objection is meritless. The documentation attached to the Objections does not account for the period of time in which Petitioner seeks equitable tolling (April 24, 1997 through May 3, 2004). In addition, a review of the entire record
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before the Court belies the assertions of mental health issues and inability to obtain records. prove equitable tolling. CONCLUSION Accordingly, after conducting a de novo review of the record, IT IS ORDERED that the Court ADOPTS the Report and Recommendation (Doc. No. 18) in its entirety. are OVERRULED. IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus is DENIED and this action is DISMISSED with prejudice. to enter separately. This action is closed. Final Judgment The Objections raised by the Petitioner Petitioner has not satisfied his burden to

DATED this 6th day of July, 2009.

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