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.

Rossum v. Ryan

United States District Court, Ninth Circuit

December 18, 2013

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

ORDER

CINDY K. JORGENSON, District Judge.

On July 29, 2013, Magistrate Judge Leslie A. Bowman issued a Report and Recommendation, (Doc. 11), in which she recommended dismissing Petitioner's Petition Under 28 U.S.C. §2254 for a Writ of Habeas Corpus by a Person in State Custody. (Doc. 1). Magistrate Judge Bowman advised the parties that written objections to the Report and Recommendation were to be filed within fourteen days of service of a copy of the Report and Recommendation pursuant to 28 U.S.C. §636(b).

On August 19, 2013, Petitioner filed a document entitled Petitioner Requests New Writ of Habeas Corpus Filed Based on Equitable Tolling Statute and Atkins Claims. (Doc. 12). On October 24, 2013, the Court Ordered Respondents to file a Response to Petitioner's Request. (Doc. 14). Respondents filed their Response on November 12, 2013. (Doc. 15).

I. Background

On May 13, 1996, Petitioner was convicted of second-degree murder and two counts of aggravated assault. (Doc. 10-1 at p. 6). After his conviction, the trial court sentenced Petitioner to 35 years of imprisonment. (Doc. 10-1 at p. 10-15). Petitioner appealed and on January 29, 1998, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. (Doc. 10-1 at p. 5-8). Petitioner did not file a petition for review before the Arizona Supreme Court.

On March 23, 1998, Petitioner filed a Notice of Post-Conviction Relief pursuant to Rule 32 of the Arizona Rules of Criminal Procedure. (Doc. 10-1 at p. 17-19). On June 5, 2001, appointed Rule 32 counsel filed a Notice informing the court that after reviewing the record, he was unable to find any meritorious claims to raise in a post-conviction proceeding. (Doc. 10-1 at p. 21-23). On March 10, 2003, Petitioner filed a pro se Rule 32 petition raising five separate claims for relief. (Doc. 10-1 at p. 25-37). On December 8, 2003, the trial court denied Petitioner's post-conviction Rule 32 petition. (Doc. 10-1 at p. 61-66). Petitioner filed a Motion for Reconsideration on January 9, 2004, (Doc. 10-2 at p. 2-4), which was denied by the trial court on January 16, 2004. (Doc. 10-2 at p. 6-7).

Petitioner appealed the trial court's denial of his Rule 32 petition. (Doc. 10-2 at p. 9-12). On December 16, 2004, the Arizona Court of Appeals granted Petitioner's petition for review but denied relief. (Doc. 10-2 at p. 26-27). Then, on June 23, 2008, Petitioner filed a Second Notice of Post-Conviction Relief. (Doc. 10-3). On May 26, 2009[1], the trial court denied Petitioner's second Rule 32 Petition. (Doc. 10-4 at p. 35-36). Petitioner did not seek review of that order. Approximately three years later on May 21, 2012, Petitioner filed the pending Petition Under 28 U.S.C. §2254 for a Writ of Habeas Corpus. (Doc. 1). In his Petition, Petitioner argues that his trial counsel was ineffective for failing to secure a plea bargain with the state and failing to object to the consecutive sentences he received for the two aggravated assault charges, his appellate counsel was ineffective for failing to argue that Petitioner had no attorney present when he made incriminating statements to police, and the prosecutor committed misconduct by meeting with a witness and suggesting the witness change his story prior to testifying.

On July 30, 2012 Respondents filed their Answer. (Doc. 10). Petitioner did not file a reply. On July 29, 2013, Magistrate Judge Leslie A. Bowman issued a Report and Recommendation in which she recommended dismissing Petitioner's Petition because it is time barred. (Doc. 11). Petitioner objected arguing that his Petitioner was entitled to equitable tolling due to his mental impairment. (Doc. 12).

II. Standard of Review

This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). Pursuant to 28 U.S.C. § 636(b)(1), if a party makes a timely objection to a magistrate judge's recommendation, then this Court is required to "make a de novo determination of those portions of the [report and recommendation] to which objection is made." See also Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (reading the Ninth Circuit's decision in Reyna-Tapia as adopting the view that district courts are not required to review "any issue that is not the subject of an objection"); United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir.2003) (disregarding the standard of review employed by the district court when reviewing a report and recommendation to which no objections were made).

III. Statute of Limitations

The AEDPA mandates that a one-year statute of limitations applies to applications for a writ of habeas corpus by a person in state custody. 28 U.S.C. § 2244(d)(1). Generally, the limitation period begins to run from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A).[1] "The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2).

Petitioner's Petition is untimely. Petitioner's initial Rule 32 Petition proceedings ceased to be pending on December 16, 2004 after the Arizona Court of Appeals denied relief. Petitioner did not file his second Rule 32 Petition until June 23, 2008 over three years later. His second Rule 32 Petition ceased to be pending thirty (30) days after the trial court's May 22, 2009 denial of relief. Petitioner then took no action for nearly three years until May 21, 2012. Additionally, Petitioner does not argue in his objections that his Petition for habeas relief was timely filed. As such, after an independent review ...


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.