Guzman v. Ryan et al, No. 4:2009cv00357 - Document 13 (D. Ariz. 2009)
Court Description: ORDER ADOPTING 12 Report and Recommendation. It is ordered that the Petition for Writ of Habeas Corpus 1 is denied and this action is dismissed with prejudice. Final Judgment to enter seperately. Signed by Judge David C Bury on 11/19/09. (LMF, )
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Guzman v. Ryan et al Doc. 13 1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF ARIZONA 6 7 8 9 10 11 12 Martin Gavino Guzman, ) ) Petitioner, ) v. ) ) ) Charles L. Ryan, et al., ) ) Respondents. ) ______________________________________ ) CV-09-357-TUC-DCB ORDER 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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 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 the Report and Recommendation on November 18, 2009. Petitioner’s objections reiterate the claims contained in the habeas petition and the reply to the Respondents’ answer. 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). 27 28 Dockets.Justia.com 1 DISCUSSION 2 Petitioner was convicted in Pima County Superior Court, case #CR 3 0051953, of molestation of a child, sexual conduct with a minor under 15, 4 and continuous sexual abuse of a child and was sentenced to life 5 imprisonment. Petitioner names Charles L. Ryan as Respondent in the 6 Petition and the Arizona Attorney General as an Additional Respondent. 7 Petitioner raises three grounds for relief: (1) Petitioner’s sentence was 8 illegally enhanced, in violation of the Fifth and Fourteenth Amendments; 9 (2) Petitioner’s Sixth Amendment rights to have a trier-of-fact determine 10 sentence enhancing factors, trial by jury, effective assistance of 11 counsel, to be informed of the nature and cause of the accusation, and 12 to 13 Amendment 14 Petitioner states that he has presented these claims to the Arizona Court 15 of Appeals. 16 17 a speedy trial equal were violated; protection and and due (3) process Petitioner’s rights Fourteenth were violated. Respondents, in a thorough and detailed review of Petitioner’s conviction, appeal and post-conviction litigation, argued as follows: 18 Petitioner’s 19 Antiterrorism 20 (AEDPA) 21 prisoners filing habeas corpus petitions in federal court. 22 28 U.S.C. § 2244(d)(1). The limitation period runs from “the 23 date on which the judgment became final by the conclusion 24 of direct review or the expiration of the time for seeking 25 such review.” 28 U.S.C. § 2244(d)(1)(A). “The time during 26 which a properly filed application for State post-conviction 27 or other collateral review with respect to the pertinent 28 2 habeas and imposes corpus petition Effective a 1–year Death is Penalty limitation untimely. Act period of on The 1996 state 1 judgment or claim is pending shall not be counted toward any 2 period of limitation.” 28 U.S.C. § 2244(d)(2). Here, the 3 Arizona Court of Appeals issued its memorandum decision 4 affirming 5 December 4, 1997... The Arizona Supreme Court denied review 6 of Petitioner’s claims on September 24, 1998...Petitioner 7 filed his first notice of post conviction relief on May 1, 8 1998...Thus, 9 completion of Petitioner’s direct appeal and the filing of 10 his first notice of post conviction relief. The court of 11 appeals denied this petition on May 18, 2000... Once that 12 decision issued, Petitioner had no matter “pending” in state 13 court. Therefore, the statute of limitations began to run 14 on May 18, 2000, and Petitioner had until May 18, 2001 to 15 file his habeas petition. He did not, however, file his 16 petition until June 26, 2009. 17 Although Petitioner filed a second notice of post conviction 18 relief on December 26, 2008, this did not serve to extend 19 the time in which he could file a habeas petition. “The 20 tolling provision does not . . . revive the limitations 21 period (i.e. restart the clock at zero); it can only serve 22 to pause a clock that has not yet fully run. Once the 23 limitations period is expired, collateral petitions can no 24 longer serve to avoid a statute of limitations.” Vroman v. 25 Brigano, 26 quotation 27 Petitioner’s 28 all 346 but no of Petitioner’s non-tolled F.3d marks one 598, 602 omitted, filing of time (6th passed Cir. emphasis his 3 convictions second between 2003) added). petition on the (internal Therefore, for post 1 conviction relief had no effect on the limitations period. 2 Further, Petitioner has failed to assert that any later date 3 for the start of the limitations period should apply. To the 4 extent that he asserts that Blakely v. Washington, 542 U.S. 5 296 (2004), mandates resentencing in his case, Blakely had 6 not been decided when Appellant’s conviction became final 7 in 1997, and the United States Supreme Court has not made 8 Blakely “retroactively applicable to cases on collateral 9 review.” 28 U.S.C. § 2244(d)(1)(C); see Scott v. Schriro, 10 567 F.3d 573, 578, n.3 (9th Cir. 2009) (“Blakely does not 11 apply retroactively to cases on collateral review.”). Thus, 12 this case law does not serve to impose a later date for the 13 start of the limitations period. Because the habeas petition 14 is untimely, this Court should dismiss it with prejudice. 15 16 17 (Answer at 3-4.) The Magistrate Judge’s Report and Recommendation is thorough and well-reasoned: 18 [T]he statute of limitations began to run on May 19, 2000, 19 the date that Petitioner’s conviction became final and was 20 no longer tolled by pending Rule 32 Proceedings, not on the 21 date that the Blakely decision was issued. 22 The filing of Petitioner’s Second Rule 32 Proceedings does 23 not 24 limitations period is expired. It was not filed until 25 December 26 limitations had expired. See Ferguson v. Palmateer, 321 F.3d 27 820, 823 (9th Cir. 2003) (holding that § 2244(d) does not 28 4 affect 26, this Court’s 2008, well conclusion after the that federal Petitioner’s statute of 1 permit the re-initiation of the limitations period that has 2 ended 3 tolling 4 limitations 5 circumstances beyond a prisoner's control make it impossible 6 to file a petition on time." Calderon v. United States Dist. 7 Ct. (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997), overruled 8 on other grounds, Calderon v. United States Dist. Ct., 163 9 F.3d 530 (9th Cir. 1998)(en banc). Equitable tolling is 10 unavailable in most cases. Miranda v. Castro, 292 F.3d 1063, 11 1066 (9th Cir. 2002) (quoting Miles v. Prunty, 187 F.3d 12 1104, 1107 (9th Cir.1999) and Beeler, 128 F.3d at 1288). 13 Petitioner has not argued that he was unable to timely file 14 the pending petition due to extraordinary circumstances 15 beyond his control. 16 The last day of the limitations period was May 19, 2001. The 17 instant petition was filed on June 26, 2009. It is therefore 18 time-barred. 19 20 before may the be state petition available period has even was filed). after the expired if Equitable statute of "extraordinary (R&R at 4-5.) Petitioner’s Objections do not highlight any new or pertinent law 21 or facts that were left unconsidered or unresolved by the R&R. 22 record unequivocally reflects that the statutory period 23 petition for federal habeas relief ran from May 19, 2000 through May 19, 24 2001, with no applicable equitable or statutory tolling events. 25 habeas petition was filed June 26, 2009 and is time-barred. 26 27 28 to file a CONCLUSION Accordingly, after conducting a de novo review of the record, 5 The The 1 IT IS ORDERED that the Court ADOPTS the Report and Recommendation 2 (Doc. No. 12) in its entirety. 3 are OVERRULED. The Objections raised by the Petitioner 4 IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus 5 (Doc. No. 1) is DENIED and this action is DISMISSED with prejudice. 6 Final Judgment to enter separately. 7 DATED this 19th day of November, 2009. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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