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Rossum v. Ryan

United States District Court, Ninth Circuit

July 26, 2013

Tristan Desmond Rossum, Petitioner,
v.
Charles L. Ryan; et al., Respondents.

REPORT AND RECOMMENDATION

LESLIE A. BOWMAN, Magistrate Judge.

Pending before the court is a petition for writ of habeas corpus filed on May 21, 2012, by Tristan Desmond Rossum, an inmate confined in the Arizona State Prison Complex in Florence, Arizona. (Doc. 1) Rossum claims his trial counsel and appellate counsel were ineffective. Id. He further claims the prosecutor committed misconduct at his trial. Id.

Pursuant to the Rules of Practice of this court, this matter was referred to Magistrate Judge Bowman for report and recommendation. LRCiv 72.2(a)(2).

The Magistrate Judge recommends the District Court, after its independent review of the record, enter an order dismissing the petition. It is time-barred.

Summary of the Case

Rossum was convicted after a jury trial of "second-degree murder, drive-by shooting, and two counts of aggravated assault." (Doc. 10-1, p. 6) On June 12, 1996, the trial court gave Rossum sentences totaling 35 years' imprisonment. (Doc. 10-1, pp. 10-15)

On direct appeal, Rossum argued his statements to police should have been suppressed because they were not given voluntarily. (Doc. 10-1, p. 6) Nevertheless, the Arizona Court of Appeals affirmed Rossum's convictions and sentences on February 12, 1998. (Doc. 10, p. 2) Rossum did not file a petition for review before the Arizona Supreme Court. (Doc. 10, p. 3)

On March 23, 1998, Rossum filed notice of post-conviction relief. (Doc. 10, p. 2) After a considerable delay, on June 5, 2001, counsel filed notice that he could find no meritorious issues to raise. (Doc. 10, p. 2-3) On March 10, 2003, Rossum filed his petition pro se arguing (1) his Sixth Amendment right to counsel was violated because counsel was not present at the jailhouse interview shortly after his arrest, (2) appellate counsel was ineffective for failing to argue his confession was involuntary in violation of A.R.S. § 13-3988, (3) his right to equal protection was violated because counsel's failure to be present at the jailhouse interview was due to the fact that Rossum was indigent and counsel was court-appointed, (4) the jury was selected on the basis of race violating his right to equal protection, and (5) his right to a fair trial was violated by the prosecutor's attempt to tamper with the testimony of a witness. (Doc. 10, p. 3); (Doc. 10-1, pp. 61-65)

The trial court found claims (4) and (5) precluded because they should have been raised at trial or on direct appeal. (Doc. 10-1, pp. 61-65) The trial court denied claims (1), (2), and (3) on the merits. Id. Rossum's motion for reconsideration was denied by the trial court on January 16, 2004. (Doc. 10-2, p 6) The Arizona Court of Appeals granted review but denied relief on December 16, 2004. (Doc. 10-2, p. 26) Rossum did not seek further review. (Doc. 10, p. 3)

More than three years later, on June 23, 2008, Rossum filed a second notice of post-conviction relief. (Doc. 10, p. 3) He filed a petition on December 31, 2008. (Doc. 10-4, p. 2) On May 26, 2009, the trial court denied the petition. (Doc. 10-4, p. 35) Rossum did not seek review from the court of appeals. (Doc. 10, p. 3)

Approximately three years later, on May 21, 2012, Rossum filed the pending petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1) He argues (1) trial counsel was ineffective because (a) she was unable to secure a plea bargain with the state and (b) she did not object to the consecutive sentences given for the two aggravated assault charges, (2) appellate counsel was ineffective for failing to argue that the defendant had no attorney present when he made incriminating statements to the police, and (3) the prosecutor committed misconduct by meeting with a witness just before he testified and suggesting that he change his story. (Doc. 1, pp. 87, 97, 103)

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 ...


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