United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Honorable John Z. Boyle United States Magistrate Judge
HONORABLE DAVID G. CAMPBELL, UNITED STATES DISTRICT JUDGE:
Jack Mizer has filed a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254. (Doc. 1.)
Summary of Conclusion.
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.
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.)
Plea and Sentencing.
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.)
Petitioner's Post-Conviction Relief Proceeding.
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