Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Rogel v. Ryan

United States District Court, Ninth Circuit

October 1, 2013

Richard Ruiz Rogel, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

ORDER

G. MURRAY SNOW, District Judge.

Pending before the Court are Petitioner Richard Ruiz Rogel's Petition for Writ of Habeas Corpus, (Doc. 1), and United States Magistrate Judge Mark E. Aspey's Report and Recommendation ("R & R"), (Doc. 14). The R & R recommends that the Court deny the Petition. (Doc. 14 at 12.) Rogel filed a timely objection to the R & R. (Doc. 15.) Thus, the Court will make a de novo determination of those portions of the R & R to which an objection is made. 28 U.S.C. § 636(b)(1); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). For the following reasons, the Court adopts the R & R of Magistrate Aspey and denies the Petition with prejudice.

BACKGROUND

On March 29, 2001, a grand jury indicted Petitioner Richard Ruiz Rogel on three felony counts related to the abuse and death of his toddler son. (Doc. 12, Ex. A.) On April 11, 2002, a jury convicted Rogel of second-degree murder and child abuse. ( Id., Ex. T.) The Arizona Court of Appeals affirmed the conviction on February 3, 2004, and Rogel did not appeal to the Arizona Supreme Court. ( Id., Ex. JJ.)

Rogel filed numerous petitions for post-conviction relief under Rule 32, Arizona Rules of Criminal Procedure. The R & R sets forth a more detailed factual and procedural background of this case, to which neither party objected. Accordingly, the Court adopts this background as an accurate recital. The R & R provides the dates for all Rogel's various petitions for post-conviction relief and the appeals that followed.

Significantly, after the Arizona Court of Appeals denied review on a rejected petition on December 9, 2008, Rogel did not file another petition until June 2, 2010. ( Id., Exs. ZZ, AAA, DDD.) Five days later, the trial court dismissed that petition as being untimely, ( Id., Ex. EEE), and Rogel did not file another petition until January 20, 2011, ( Id., Ex. FFF). Rogel filed this habeas petition on December 27, 2012. (Doc. 1.)

In this § 2254 action, Rogel asserts three different grounds for relief. ( Id. at 15-17.) Magistrate Aspey recommended that the Petition be dismissed because the Petition is time-barred. (Doc. 14 at 11-12.) In his response, Rogel argues that the statute of limitations does not apply. (Doc. 15.)

DISCUSSION

I. STANDARD OF REVIEW

This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1) (2006). It is "clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original). District courts are not required to conduct "any review at all... of any issue that is not the subject of an objection." Thomas v. Arn, 474 U.S. 140, 149 (1985).

The writ of habeas corpus affords relief to persons in custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(c)(3) (2006). Review of Petitions for Habeas Corpus is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Id. § 2244 et seq.

Under AEDPA, the Court may not grant habeas relief unless it concludes that the state's adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Id. § 2254(d)(1)-(2).

II. STATUTE OF LIMITATIONS

Under AEDPA, a habeas corpus petition must be filed within a one-year period of limitation. Id. § 2244(d)(1). The limitation period generally begins to run when the state conviction becomes final "by the conclusion of direct review or the expiration of the time for seeking such review." Id. § 2244(d)(1)(A). Where applicable, the limitation period can begin later, on "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." Id. § 2244(d)(1)(D). The ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.