Opinion
No. CV 07-2028-PHX-ROS.
May 12, 2008
ORDER
On March 25, 2008, Magistrate Judge Michelle H. Burns filed a Report and Recommendation ("R R") recommending that Frank Perea's Amended Petition for Writ of Habeas Corpus be denied. (Doc. 14). For the reasons below, the R R will be adopted.
BACKGROUND
The R R sets forth the background of this case, to which neither party objected, so the Court adopts it as an accurate recital. In brief, Petitioner pleaded guilty to two counts of attempted exploitation of a minor. He was sentenced pursuant to the plea agreement to lifetime probation on Count 1, and five years imprisonment for Count 2. This judgment became final on October 2, 2006. Petitioner filed his original petition on October 17, 2007, and an amended petition on November 2, 2007.
Petitioner alleged two grounds for habeas relief: (1) actual innocence based up an Arizona Court of Appeals case that clarified the sexual exploitation statutes, and (2) ineffective assistance of trial counsel for failure to raise a constitutional challenge to the sexual exploitation statute.
The Magistrate Judge recommended that the amended petition be dismissed for untimeliness. Specifically, the Magistrate Judge found that Petitioner's petition was fifteen days late under AEDPA's one-year statute of limitations. And, although the petition was late because Petitioner relied upon a courthouse address provided by the Federal Public Defender's Office, the Magistrate Judge found that Petitioner's mistake did not warrant equitable tolling of the statute of limitations. Petitioner timely filed an objection.
STANDARD OF REVIEW
The 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). Because objections were filed, the Court reviews the Magistrate Judge's findings and recommendations de novo. 28 U.S.C. § 636(b)(1)(C); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).
ANALYSIS
After a de novo review of the record, the Court will adopt the Magistrate Judge's recommendations. The Ninth Circuit has held that AEDPA's statute of limitations period is subject to equitable tolling. United States v. Battles, 362 F.3d 1195, 1197 (9th Cir. 2004). The Court agrees with the Magistrate Judge's conclusion that Bowles v. Russell, 127 S.Ct. 2360 (2007), did not overturn this holding. See Coker v. Quarterman, No. 05-10020, 2008 WL 724042, at *5 n. 1 (5th Cir. Mar. 17, 2008) (expressly holding that equitable tolling of AEDPA's statute of limitations survives Bowles); Diaz v. Kelly, 515 F.3d 149, 153-53 (2d Cir. 2008) (same); cf. Harris v. Carter, 515 F.3d 1051, 1054-57 (9th Cir. 2008) (conducting equitable tolling analysis of habeas claim after Bowles); Laurson v. Leyba, 507 F.3d 1230, 1232-33 (10th Cir. 2007) (same).
A petitioner seeking equitable tolling must establish two elements: "`(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Lawrence v. Florida, 127 S.Ct. 1079, 1085 (2007) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). The Court agrees with the Magistrate Judge that Petitioner has not demonstrated an extraordinary circumstance preventing him from timely filing his petition. See Lawrence, 127 S.Ct. at 1085 ("Attorney miscalculation [of AEDPA's limitations period] is simply not sufficient to warrant equitable tolling, particularly in the postconviction context where prisoners have no constitutional right to counsel."); Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) ("We now join our sister circuits and hold that a pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling."); United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000) (refusing to grant equitable tolling where error resulted in petitioner's claim being filed one day late);Eaves v. Burris, 529 F. Supp. 2d 470, 476 (D. Del. 2008) ("To the extent petitioner made a mistake or miscalculation regarding the one-year filing period, that mistake does not warrant equitably tolling the limitations period.").
Accordingly,
IT IS ORDERED that the Report and Recommendation (Doc. 14) is ADOPTED. IT IS FURTHER ORDERED that the Amended Petition for Writ of Habeas Corpus (Doc. 4) is DENIED and DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that the Clerk of Court shall close this case.