Schlosser v. Ryan et al

Filing 11

ORDER ADOPTING 9 REPORT AND RECOMMENDATION in its entirety. The 10 Objections raised by the Petitioner are OVERRULED. IT IS FURTHER ORDERED that the 1 Petition for Writ of Habeas Corpus is DENIED and this action is DISMISSED with prejudice. Final Judgment to enter separately by the Clerk's Office. A Certificate of Appealability is likewise DENIED. This action is closed. Signed by Senior Judge David C Bury on 10/28/15. (BAC)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF ARIZONA 6 7 Odis Dietrich Schlosser, 8 9 10 11 12 ) ) Petitioner, ) v. ) ) ) Charles L. Ryan, et al., ) ) Respondents. ) ______________________________________ ) CV-14-2085-TUC-DCB ORDER 13 This matter was referred to the United States Magistrate Judge 14 pursuant to 28 U.S.C. §636(b) and the local rules of practice of this 15 Court for a Report and Recommendation (R&R) on the Petition for Writ of 16 Habeas Corpus pursuant to 28 U.S.C. §2254. Before the Court is the 17 Magistrate Judge’s Report and Recommendation (Doc. 9), which recommends 18 that the Petition be denied and dismissed. The Petitioner filed 19 Objections to the Report and Recommendation. (Doc. 10.) 20 SUMMARY 21 Petitioner was convicted in Pima County Superior Court, case #CR- 22 063443, of first-degree murder and was sentenced to imprisonment for 23 life, without the possibility of parole. In his Petition, Petitioner 24 names Charles Ryan as Respondent and the Arizona Attorney General as an 25 Additional Respondent. Petitioner raises one ground for relief. He 26 alleges his due process rights have been violated because the Arizona 27 Supreme Court has declared the premeditation instruction given by the 28 1 trial court to be erroneous and, therefore, he was convicted of violating 2 a statute that was unconstitutionally vague. Petitioner claims he has 3 presented this issue to the Arizona Court of Appeals and Arizona Supreme 4 Court. 5 STANDARD OF REVIEW 6 When objection is made to the findings and recommendation of a 7 magistrate judge, the district court must conduct a de novo review. 8 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). 9 OBJECTIONS 10 The R&R concluded that the habeas petition was time-barred 11 12 13 14 15 16 17 18 19 20 21 22 23 by at least ten years, as follows: [T]he Arizona Supreme Court denied review of the Memorandum Decision in Schlosser’s direct appeal on March 22, 2001... Schlosser had until June 30, 2001 to file a petition for writ of certiorari. Schlosser did not petition for certiorari. One year later, on June 30, 2002, his petition for a writ of habeas corpus became time-barred. Almost twelve years later, on May 12, 2014, Schlosser filed his federal petition for writ of habeas corpus. Title 8 U.S.C. § 2244(d)(2) does allow for statutory tolling during the pendency of a state post-conviction release proceeding. But here, by the time Schlosser filed his state Notice of PostConviction Relief on February 21, 2012, the statute of limitations had already run so the statutory tolling provisions do not apply. * * * In his Reply, Schlosser only briefly touches on the reasons for the ten year delay in filing his habeas petition. He explains that he thought his direct appeal in state court proceedings was actually a petition under Rule 32, Ariz.R.Crim.P., and that was “the reason for the 10 year gap in filing.” Reply, p. 3. However, even if his confusion could somehow constitute an “extraordinary circumstance,” the ten year delay establishes without question that he has not pursued his rights diligently. 24 (R&R at 4-5.) 25 Petitioner’s Objections do not highlight any new or pertinent law 26 or facts that were left unconsidered or unresolved by the R&R. More 27 28 2 1 importantly, they do nothing to challenge the R&R’s conclusion that this 2 habeas petition is untimely by at least ten years with no equitable or 3 legal tolling applicable. 4 CONCLUSION 5 Accordingly, after conducting a de novo review of the record, 6 IT IS ORDERED that the Court ADOPTS the Report and Recommendation 7 (Doc. 9) in its entirety. 8 Petitioner are OVERRULED. The Objections (Doc. 10) raised by the 9 IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus 10 (Doc. No. 1) is DENIED and this action is DISMISSED with prejudice. 11 Final Judgment to enter separately by the Clerk’s Office. A Certificate 12 of Appealability is likewise DENIED. 13 DATED this 28th day of October, 2015. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 This action is closed.

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