Rossum v. Ryan et al

Filing 11

REPORT AND RECOMMENDATION: The Magistrate Judge recommends that the District Court enter an order dismissing the 1 Petition for Writ of Habeas Corpus (State/2254) filed by Tristan Desmond Rossum. Any party may serve and file written objections within 14 days of being served with a copy of this report and recommendation. Signed by Magistrate Judge Leslie A Bowman on 7/26/2013. (BAR) Modified on 7/29/2013 to reflect WO (BAR).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Tristan Desmond Rossum,
Petitioner,

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vs.

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Charles L. Ryan; et al.,

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Respondents.

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No. CIV 12-391-TUC-CKJ (LAB)
REPORT AND
RECOMMENDATION

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Pending before the court is a petition for writ of habeas corpus filed on May 21, 2012,
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by Tristan Desmond Rossum, an inmate confined in the Arizona State Prison Complex in
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Florence, Arizona. (Doc. 1) Rossum claims his trial counsel and appellate counsel were
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ineffective. Id. He further claims the prosecutor committed misconduct at his trial. Id.
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Pursuant to the Rules of Practice of this court, this matter was referred to Magistrate
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Judge Bowman for report and recommendation. LRCiv 72.2(a)(2).
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The Magistrate Judge recommends the District Court, after its independent review of the
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record, enter an order dismissing the petition. It is time-barred.
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Summary of the Case
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Rossum was convicted after a jury trial of “second-degree murder, drive-by shooting, and
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two counts of aggravated assault.” (Doc. 10-1, p. 6) On June 12, 1996, the trial court gave
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Rossum sentences totaling 35 years’ imprisonment. (Doc. 10-1, pp. 10-15)
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On direct appeal, Rossum argued his statements to police should have been suppressed

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because they were not given voluntarily. (Doc. 10-1, p. 6) Nevertheless, the Arizona Court of

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Appeals affirmed Rossum’s convictions and sentences on February 12, 1998. (Doc. 10, p. 2)

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Rossum did not file a petition for review before the Arizona Supreme Court. (Doc. 10, p. 3)

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On March 23, 1998, Rossum filed notice of post-conviction relief. (Doc. 10, p. 2) After

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a considerable delay, on June 5, 2001, counsel filed notice that he could find no meritorious

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issues to raise. (Doc. 10, p. 2-3) On March 10, 2003, Rossum filed his petition pro se arguing

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(1) his Sixth Amendment right to counsel was violated because counsel was not present at the

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jailhouse interview shortly after his arrest, (2) appellate counsel was ineffective for failing to

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argue his confession was involuntary in violation of A.R.S. § 13-3988, (3) his right to equal

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protection was violated because counsel’s failure to be present at the jailhouse interview was

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due to the fact that Rossum was indigent and counsel was court-appointed, (4) the jury was

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selected on the basis of race violating his right to equal protection, and (5) his right to a fair trial

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was violated by the prosecutor’s attempt to tamper with the testimony of a witness. (Doc. 10,

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p. 3); (Doc. 10-1, pp. 61-65)

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The trial court found claims (4) and (5) precluded because they should have been raised

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at trial or on direct appeal. (Doc. 10-1, pp. 61-65) The trial court denied claims (1), (2), and

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(3) on the merits. Id. Rossum’s motion for reconsideration was denied by the trial court on

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January 16, 2004. (Doc. 10-2, p 6) The Arizona Court of Appeals granted review but denied

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relief on December 16, 2004. (Doc. 10-2, p. 26) Rossum did not seek further review. (Doc. 10,

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p. 3)

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More than three years later, on June 23, 2008, Rossum filed a second notice of post-

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conviction relief. (Doc. 10, p. 3) He filed a petition on December 31, 2008. (Doc. 10-4, p. 2)

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On May 26, 2009, the trial court denied the petition. (Doc. 10-4, p. 35) Rossum did not seek

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review from the court of appeals. (Doc. 10, p. 3)

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Approximately three years later, on May 21, 2012, Rossum filed the pending petition for

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writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1) He argues (1) trial counsel was

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ineffective because (a) she was unable to secure a plea bargain with the state and (b) she did not
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object to the consecutive sentences given for the two aggravated assault charges, (2) appellate

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counsel was ineffective for failing to argue that the defendant had no attorney present when he

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made incriminating statements to the police, and (3) the prosecutor committed misconduct by

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meeting with a witness just before he testified and suggesting that he change his story. (Doc.

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1, pp. 87, 97, 103)

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On July 30, 2012, the respondents filed an answer arguing, among other things, that the
petition is time-barred. (Doc. 10) Rossum did not file a reply.
The respondents are correct. The petition is time-barred.

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Discussion

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The writ of habeas corpus affords relief to persons in custody in violation of the

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Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). A one-year limitation

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period applies to persons in custody pursuant to a state court judgment. 28 U.S.C. § 2244(d).

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The statute reads in pertinent part as follows:

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A 1-year period of limitation shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State
court. The limitation period shall run from the latest of--

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(A)

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(1)

the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;

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(2)

The time during which a properly filed application for State
post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any period of
limitation under this subsection.

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28 U.S.C. § 2244(d).
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The limitation period for Rossum’s claims was triggered on “the date on which the
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judgment became final by the conclusion of direct review or the expiration of the time for
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seeking such review.” 28 U.S.C. § 2244(d)(1)(A). On February 12, 1998, the Arizona Court
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of Appeals affirmed Rossum’s convictions and sentences. (Doc. 10-1, p. 5) He then had 30
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days to file a petition for review with the Arizona Supreme Court. Ariz.R.Crim.P. 31.19(a).
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His judgment became final when he failed to do so on March 16, 19981. See Hemmerle v.

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Schriro, 495 F.3d 1069, 1073-74 (9th Cir. 2007), cert. denied, 555 U.S. 829 (2008).

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The one-year limitation period began running the next day and ran for 6 days until it was

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tolled on March 23, 1998, when Rossum filed notice of post-conviction relief. See 28 U.S.C.

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§ 2244(d)(2). Tolling pursuant to § 2244(d)(2) continued until his petition for review from the

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Arizona Court of Appeals was denied on December 16, 2004. (Doc. 10-2, p. 26) The limitation

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period began running again the next day and expired 359 days later on December 12, 2005.2

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See Hemmerle, 495 F.3d at 1077. Rossum filed his petition in this court on May 21, 2012. It

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is time-barred.

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In his petition, Rossum argues the limitation period should be equitably tolled because

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he “lost paper work due to moves from institution to institution.” (Doc. 1, p. 139) Also, he has

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no attorney, knowledge of the law, legal books, or other help. Id. He further states, “I have also

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been in special education all my life.” Id..

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“[A] petitioner is entitled to equitable tolling [of the limitation statute] only if he shows

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(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance

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stood in his way and prevented timely filing.” Lakey v. Hickman, 633 F.3d 782, 786 (9th Cir.

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2011) (punctuation modified), cert. denied, 131 S.Ct. 3039 (2011). “The petitioner must

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additionally show that the extraordinary circumstances were the cause of his untimeliness and

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that the extraordinary circumstances made it impossible to file a petition on time.” Id. “The

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high threshold of extraordinary circumstances is necessary lest the exceptions swallow the rule.”

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Id.

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Rossum asserts that he has no attorney, knowledge of the law, legal books, or other help.

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(Doc. 1, p. 139) While that may be the case, “a pro se petitioner’s lack of legal sophistication

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Because the 30th day, March 14, 1998, is a Saturday, the deadline ends on the next Monday,
March 16, 1998. Ariz.R.Crim.P. 1.3 (a).
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Because the 359th day, December 10, 2005, is a Saturday, the deadline ends on the next
Monday, December 12, 2005. Fed.R.Civ.P. 6(a)(1)(C).
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is not, by itself, an extraordinary circumstance warranting equitable tolling.” Rasberry v.

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Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006).

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Rossum further argues that he has lost paperwork due to moves between institutions. He

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does not, however, explain what paperwork was lost, when it was lost, and when he recovered

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it (if he did). Accordingly, he has not shown how the loss of that paperwork “made it

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impossible to file [his] petition on time.” See Lakey v. Hickman, 633 F.3d at 786.

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Finally, Rossum states that he has “been in special education all my life,” but he does not

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explain why this is an “extraordinary circumstance” that “stood in his way and prevented timely

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filing.” See Lakey, 633 F.3d at 786; see also Bills v. Clark, 628 F.3d 1092, 1100 (9th Cir. 2010)

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(Equitable tolling is available only where mental impairment is so severe that “petitioner was

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unable rationally or factually to personally understand the need to timely file” or “petitioner’s

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mental state rendered him unable personally to prepare a habeas petition and effectuate its

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filing.”). Rossum is not entitled to equitable tolling.

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RECOMMENDATION

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The Magistrate Judge recommends that the District Court, after its independent review

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of the record, enter an order DISMISSING the petition for writ of habeas corpus. (Doc. 1) It

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is time-barred.

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Pursuant to 28 U.S.C. §636 (b), any party may serve and file written objections within

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14 days of being served with a copy of this report and recommendation. If objections are not

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timely filed, they may be deemed waived.

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The Clerk is directed to send a copy of this report and recommendation to the petitioner
and the respondents.
DATED this 26th day of July, 2013.

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