Leighton #252380 v. Ryan et al

Filing 20

ORDER ADOPTING REPORT AND RECOMMENDATION: Petitioner's Objection to the Report and Recommendation (Doc. 16) is OVERRULED. Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) is DISMISSED with prejudice. A certificate of appealability is DENIED. The Clerk of Court shall enter judgment accordingly and close the file in this action. Signed by Judge Jennifer G Zipps on 11/13/2018. (MCO)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Robert William Leighton,
Plaintiff,

10
11

ORDER

v.

12

No. CV-18-00058-TUC-JGZ (LAB)

Charles L. Ryan, et al.,

13

Defendants.

14
15

Pending before the Court is Magistrate Judge Leslie A. Bowman’s Report

16

recommending that the Court dismiss, or in the alternative, deny Petitioner’s Petition for

17

Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 15.) Petitioner has filed an

18

objection to the Report and Recommendation and Respondents have filed a response.

19

(Docs. 16, 17.) Petitioner has also filed a notice of recent case law in support of his

20

claims. (Doc. 19). After considering the Report and Recommendation, the Petition, the

21

arguments raised in Plaintiff’s Objection, Respondents’ Response, and Plaintiff’s notice,

22

the Court will overrule the objection and adopt Judge Bowman’s recommendation for

23

dismissal of the Petition.

24

STANDARD OF REVIEW

25

When reviewing a Magistrate Judge’s Report and Recommendation, this Court

26

“shall make a de novo determination of those portions of the report . . . to which

27

objection is made,” and “may accept, reject, or modify, in whole or in part, the findings

28

or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); see also

1

Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991). Failure to object to a Magistrate

2

Judge’s recommendation relieves the Court of conducting de novo review. See 28 U.S.C.

3

§ 636(b)(1); Fed. R. Civ. P. 72; Thomas v. Arn, 474 U.S. 140, 149–54 (1985); United

4

States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).
DISCUSSION1

5
6

The Report and Recommendation concludes the Petition is properly dismissed on

7

three independent grounds: (1) statute of limitations; (2) failure to exhaust; and (3) lack

8

of merit. Because the Court concludes that the Petition is untimely, the Court does not

9

address Judge Bowman’s alternative grounds for dismissal.

10

“The Antiterrorism and Effective Death Penalty Act (“AEDPA”) sets a one-year

11

limitations period in which a state prisoner must file a federal habeas corpus petition.”

12

Thompson v. Lea, 681 F.3d 1093 (9th Cir. 2012) (citing 28 U.S.C. § 2244(d)(1)).

13

Petitioner admits that his Petition was filed six years after expiration of the ADEPA

14

limitations period. (Doc. 16 at 2.) Petitioner asserts that he is entitled to equitable tolling

15

because he diligently pursued his claims after discovering their bases, and that appellate

16

counsel’s abandonment prevented him from raising the claims earlier.

17

A petitioner is entitled to equitable tolling of the § 2244(d) statute of limitations

18

only if he establishes: “(1) that he has been pursuing his rights diligently, and (2) that

19

some extraordinary circumstance stood in his way and prevented timely filing.” Holland

20

v. Florida, 560 U.S. 631. 649 (2010) (internal quotation marks omitted). To qualify for

21

equitable tolling, a petitioner must show that “an external force”—as opposed to the

22

petitioner’s own oversight, miscalculation, or negligence—caused the untimeliness.

23

Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). “Equitable tolling is

24

justified in few cases . . . .” Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). The

25

threshold necessary to trigger it is “very high, lest the exceptions swallow the rule.”

26

Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (internal quotation marks

27
28

1

The factual and procedural history of this case is set forth in the Magistrate
Judge’s Report and Recommendation. (Doc. 15.)
-2-

1

omitted).

2

The Court agrees with Judge Bowman’s conclusion that Petitioner fails to meet

3

this very high threshold. Petitioner was aware of the facts giving rise to his claims at the

4

time of his trial. His lack of understanding about the legal significance of those claims

5

until after expiration of the limitations period does not support equitable tolling.

6

Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (“a pro se petitioner’s lack of

7

legal sophistication is not, by itself, an extraordinary circumstance warranting equitable

8

tolling.”).

9

amounted to abandonment or that any claimed abandonment was the reason for

10

Petitioner’s failure to file a timely habeas petition. See Ramirez v. Yates, 571 F.3d 993,

11

997 (9th Cir. 2009) (petitioner must show that extraordinary circumstances “were the

12

cause of his untimeliness” and “ma[de] it impossible to file a petition on time” (internal

13

quotation marks and alteration omitted)); Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir.

14

2000) (petitioner must also demonstrate a causal relationship between the extraordinary

15

circumstances on which the claim for equitable tolling rests and the tardiness of his

16

filing.). Thus, counsel’s alleged misconduct does not support equitable tolling. Because

17

Petitioner fails to establish his entitlement to equitable tolling of the AEDPA limitations

18

period, his Petition is untimely filed and must be dismissed. See Pace v. DiGuglielmo,

19

544 U.S. 408, 419 (2005) (“Because petitioner filed his federal habeas petition beyond

20

the deadline, and because he was not entitled to statutory or equitable tolling for any of

21

that period, his federal petition is barred by the statute of limitations.”)

22

Petitioner similarly fails to establish that appellate counsel’s conduct

CERTIFICATE OF APPEALABILITY

23

Before Petitioner can appeal this Court’s judgment, a certificate of appealability

24

(COA) must issue. See 28 U.S.C. §2253(c); Fed. R. App. P. 22(b)(1); Rule 11(a) of the

25

Rules Governing Section 2254 Cases. “The district court must issue or deny a

26

certification of appealability when it enters a final order adverse to the applicant.” Rule

27

11(a) of the Rules Governing Section 2254 Cases. Pursuant to 28 U.S.C. § 2253(c)(2), a

28

COA may issue only when the petitioner “has made a substantial showing of the denial of

-3-

1

a constitutional right.”

2

showing. See 28 U.S.C. §2253(c)(3). With respect to claims rejected on the merits, a

3

petitioner “must demonstrate that reasonable jurists would find the district court’s

4

assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S.

5

473, 484 (2000). For procedural rulings, a COA will issue only if reasonable jurists could

6

debate whether the petition states a valid claim of the denial of a constitutional right and

7

whether the court’s procedural ruling was correct. Id. Applying these standards, the

8

Court concludes that a certificate should not issue, as the resolution of the petition is not

9

debatable among reasonable jurists.

The court must indicate which specific issues satisfy this

10
11
12
13
14
15
16
17

CONCLUSION
IT IS ORDERED THAT:
1. The Report and Recommendation (Doc. 15) is ADOPTED to the extent set forth in
this Order.
2. Petitioner’s Objection to the Report and Recommendation (Doc. 16) is
OVERRULED.
3. Petitioner’s Petition for Writ of Habeas Corpus (Doc. 1) is DISMISSED with
prejudice.

18

4. A certificate of appealability is DENIED.

19

5. The Clerk of Court shall enter judgment accordingly and close the file in this

20

action.

21

Dated this 13th day of November, 2018.

22
23
24
25
26
27
28

-4-