Mizer v. Ryan

          REPORT AND RECOMMENDATION

          Honorable John Z. Boyle United States Magistrate Judge

         TO THE HONORABLE DAVID G. CAMPBELL, UNITED STATES DISTRICT JUDGE:

         Petitioner Jack Mizer has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.)

         I. Summary of Conclusion.

         On February 11, 2011, Petitioner was sentenced, pursuant to a guilty plea, to two concurrent 10-year terms of imprisonment. On May, 16, 2016, Petitioner filed a notice for post-conviction review, five years after the statutory deadline of May 12, 2011. On November 13, 2017, Petitioner filed this habeas petition. Because Petitioner's PCR proceedings were untimely, there is no basis for statutory tolling. There are no grounds for equitable tolling. The Petition is untimely. Therefore, the Court will recommend that the Petition be denied and dismissed with prejudice.

         II. Background.

         A. Facts.

         On July 27, 2010, the State filed an indictment (CR 2010-06348 DT) against Petitioner for two counts of aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs, both class 4 felonies. (Doc. 12-1, Ex. B, at 7.) The presentence investigation report contains the following summary:

On February 6, 2010, an officer observed a vehicle driving in the bicycle lane of a roadway and drifting between multiple lanes. The officer initiated a traffic stop and spoke with the vehicle's driver, Mizer. In doing so, the officer detected a moderate odor of alcohol from the “cab” of the vehicle. The officer conducted a horizontal eye nystagmus test on Mizer and observed six cues of impairment. The officer did not conduct further sobriety tests out of fear that Mizer may fall. The officer took Mizer into custody, and during a subsequent search of Mizer's vehicle, found a bottle of alcohol. Mizer later admitted to consuming alcohol while he was driving. The officer drew blood from Mizer for a blood alcohol test, which showed that Mizer's blood alcohol content was 0.293%.

(Doc. 12-1, Ex. D, at 15.)

         B. Plea and Sentencing.

         On December 20, 2010, Petitioner entered a plea of guilty to both counts, and admitted he had five prior felony-DUI convictions. (Doc. 12-1, Ex. C, at 12.) On February 11, 2011, Petitioner was sentenced to two concurrent terms of 10 years of imprisonment. (Doc. 12-1, Ex. E, at 26.)^[1]

         C. Petitioner's Post-Conviction Relief Proceeding.

         On May 16, 2016, Petitioner filed his pro se petition for post-conviction relief (PCR). (Doc. 12-1, Ex. F, at 31.) On June 20, 2016, the trial court denied his PCR petition as untimely and because it “failed to state a claim for ...