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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Robert William Leighton, 

Plaintiff, 

v. 

Charles L. Ryan, et al., 

Defendants. 

No. CV-18-00058-TUC-JGZ (LAB)

ORDER 

 Pending before the Court is Magistrate Judge Leslie A. Bowman’s Report 

recommending that the Court dismiss, or in the alternative, deny Petitioner’s Petition for 

Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 15.) Petitioner has filed an 

objection to the Report and Recommendation and Respondents have filed a response. 

(Docs. 16, 17.) Petitioner has also filed a notice of recent case law in support of his 

claims. (Doc. 19). After considering the Report and Recommendation, the Petition, the 

arguments raised in Plaintiff’s Objection, Respondents’ Response, and Plaintiff’s notice, 

the Court will overrule the objection and adopt Judge Bowman’s recommendation for 

dismissal of the Petition. 

STANDARD OF REVIEW 

 When reviewing a Magistrate Judge’s Report and Recommendation, this Court 

“shall make a de novo determination of those portions of the report . . . to which 

objection is made,” and “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)(C); see also 
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Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991). Failure to object to a Magistrate 

Judge’s recommendation relieves the Court of conducting de novo review. See 28 U.S.C. 

§ 636(b)(1); Fed. R. Civ. P. 72; Thomas v. Arn, 474 U.S. 140, 149–54 (1985); United 

States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). 

DISCUSSION1

 The Report and Recommendation concludes the Petition is properly dismissed on 

three independent grounds: (1) statute of limitations; (2) failure to exhaust; and (3) lack 

of merit. Because the Court concludes that the Petition is untimely, the Court does not 

address Judge Bowman’s alternative grounds for dismissal. 

 “The Antiterrorism and Effective Death Penalty Act (“AEDPA”) sets a one-year 

limitations period in which a state prisoner must file a federal habeas corpus petition.” 

Thompson v. Lea, 681 F.3d 1093 (9th Cir. 2012) (citing 28 U.S.C. § 2244(d)(1)). 

Petitioner admits that his Petition was filed six years after expiration of the ADEPA 

limitations period. (Doc. 16 at 2.) Petitioner asserts that he is entitled to equitable tolling 

because he diligently pursued his claims after discovering their bases, and that appellate 

counsel’s abandonment prevented him from raising the claims earlier. 

 A petitioner is entitled to equitable tolling of the § 2244(d) statute of limitations 

only if he establishes: “(1) that he has been pursuing his rights diligently, and (2) that 

some extraordinary circumstance stood in his way and prevented timely filing.” Holland 

v. Florida, 560 U.S. 631. 649 (2010) (internal quotation marks omitted). To qualify for 

equitable tolling, a petitioner must show that “an external force”—as opposed to the 

petitioner’s own oversight, miscalculation, or negligence—caused the untimeliness. 

Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). “Equitable tolling is 

justified in few cases . . . .” Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). The 

threshold necessary to trigger it is “very high, lest the exceptions swallow the rule.” 

Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (internal quotation marks 

 

1

 The factual and procedural history of this case is set forth in the Magistrate 

Judge’s Report and Recommendation. (Doc. 15.) 
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omitted). 

 The Court agrees with Judge Bowman’s conclusion that Petitioner fails to meet 

this very high threshold. Petitioner was aware of the facts giving rise to his claims at the 

time of his trial. His lack of understanding about the legal significance of those claims 

until after expiration of the limitations period does not support equitable tolling. 

Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (“a pro se petitioner’s lack of 

legal sophistication is not, by itself, an extraordinary circumstance warranting equitable 

tolling.”). Petitioner similarly fails to establish that appellate counsel’s conduct 

amounted to abandonment or that any claimed abandonment was the reason for 

Petitioner’s failure to file a timely habeas petition. See Ramirez v. Yates, 571 F.3d 993, 

997 (9th Cir. 2009) (petitioner must show that extraordinary circumstances “were the 

cause of his untimeliness” and “ma[de] it impossible to file a petition on time” (internal 

quotation marks and alteration omitted)); Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 

2000) (petitioner must also demonstrate a causal relationship between the extraordinary 

circumstances on which the claim for equitable tolling rests and the tardiness of his 

filing.). Thus, counsel’s alleged misconduct does not support equitable tolling. Because 

Petitioner fails to establish his entitlement to equitable tolling of the AEDPA limitations 

period, his Petition is untimely filed and must be dismissed. See Pace v. DiGuglielmo, 

544 U.S. 408, 419 (2005) (“Because petitioner filed his federal habeas petition beyond 

the deadline, and because he was not entitled to statutory or equitable tolling for any of 

that period, his federal petition is barred by the statute of limitations.”) 

CERTIFICATE OF APPEALABILITY 

 Before Petitioner can appeal this Court’s judgment, a certificate of appealability 

(COA) must issue. See 28 U.S.C. §2253(c); Fed. R. App. P. 22(b)(1); Rule 11(a) of the 

Rules Governing Section 2254 Cases. “The district court must issue or deny a 

certification of appealability when it enters a final order adverse to the applicant.” Rule 

11(a) of the Rules Governing Section 2254 Cases. Pursuant to 28 U.S.C. § 2253(c)(2), a 

COA may issue only when the petitioner “has made a substantial showing of the denial of 
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a constitutional right.” The court must indicate which specific issues satisfy this 

showing. See 28 U.S.C. §2253(c)(3). With respect to claims rejected on the merits, a 

petitioner “must demonstrate that reasonable jurists would find the district court’s 

assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 

473, 484 (2000). For procedural rulings, a COA will issue only if reasonable jurists could 

debate whether the petition states a valid claim of the denial of a constitutional right and 

whether the court’s procedural ruling was correct. Id. Applying these standards, the 

Court concludes that a certificate should not issue, as the resolution of the petition is not 

debatable among reasonable jurists. 

CONCLUSION 

 IT IS ORDERED THAT: 

1. The Report and Recommendation (Doc. 15) is ADOPTED to the extent set forth in 

this Order. 

2. Petitioner’s Objection to the Report and Recommendation (Doc. 16) is 

OVERRULED. 

3. Petitioner’s Petition for Writ of Habeas Corpus (Doc. 1) is DISMISSED with 

prejudice. 

4. A certificate of appealability is DENIED. 

5. The Clerk of Court shall enter judgment accordingly and close the file in this 

action. 

Dated this 13th day of November, 2018.