Dutcher v. Stewart, et. al, No. 4:2008cv00015 - Document 21 (D. Ariz. 2009)
Court Description: 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, )
Download PDF
<![CDATA[
Dutcher v. Stewart, et. al Doc. 21 1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF ARIZONA 6 7 Robert William Dutcher, 8 9 10 11 12 ) ) Petitioner, ) v. ) ) ) Robert Stewart, et al., ) ) Respondents. ) ______________________________________ ) CV-08-015-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, which recommends that the 18 Petition be denied and dismissed. The Petitioner filed Objections to 19 Report and Recommendation and the Respondents filed a Response to 20 Objections. 21 PETITIONER’S OBJECTIONS 22 Petitioner objects to the Report and Recommendation because: (1) 23 “There is nothing in the controlling statute setting forth the period of 24 time in which a person in custody in a state court is required to file 25 for post-conviction relief”, (Objections at 2); and (2) “Although not 26 previously put before this Honorable Court, Petitioner was mentally 27 unable to pursue relief in any court...Petitioner now asserts that his 28 Dockets.Justia.com 1 mental health coupled with the lack of reference materials and inability 2 to obtain his legal file demonstrate adequate diligence and extraordinary 3 circumstances to permit equitable tolling.” 4 (Objections at 4-5.) STANDARD OF REVIEW 5 When objection is made to the findings and recommendation of a 6 magistrate judge, the district court must conduct a de novo review. 7 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). 8 DISCUSSION 9 Petitioner must file a federal habeas petition in a district court 10 within 1 year of the conviction’s finality, and not a single day of that 11 1-year period will be deemed to have run during any period in which a 12 properly filed application for State post-conviction relief remained 13 “pending” in State court under § 2244(d)(2). See Duncan v. Walker, 533 14 U.S. 167, 172–74 (2001). That Petitioner timely applied for State post- 15 conviction relief after the federal limitations period ended cannot 16 transform that limitations period into something that unfairly closes the 17 federal courthouse doors. Ferguson v. Palmateer, 321 F.3d 820 (9th Cir. 18 2003). 19 2244(d)(2) that tolls the federal 1-year limitations period for a 20 properly filed post-conviction petition that is “pending” during the 21 federal limitations period. That Petitioner properly and timely filed his 22 post-conviction petition after the federal limitations period expired 23 means that the federal limitations period did, in fact, expire. See 24 Ferguson, 321 F.3d at 823. This objection is meritless. Petitioner’s objection contradicts the explicit language of § 25 The documentation attached to the Objections does not account for 26 the period of time in which Petitioner seeks equitable tolling (April 24, 27 1997 through May 3, 2004). 28 In addition, a review of the entire record 2 1 before the Court belies the assertions of mental health issues and 2 inability to obtain records. 3 prove equitable tolling. Petitioner has not satisfied his burden to 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. No. 18) in its entirety. 8 are OVERRULED. 9 The Objections raised by the Petitioner IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus 10 is DENIED and this action is DISMISSED with prejudice. 11 to enter separately. 12 This action is closed. DATED this 6th day of July, 2009. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Final Judgment
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
