Ruiz v. Schriro et al

Filing 18

ORDER, that the Magistrate Judge's 16 Report and Recommendation is accepted and adopted by the Court; that the petitioner's Petition for Writ of Habeas Corpus by a Person in State Custody Pursuant to 28 U.S.C. § 2254 is denied as time-barred and that this action is dismissed with prejudice. The Clerk of the Court shall enter judgment accordingly. IT IS FURTHER ORDERED that no certificate of appealability shall issue. Signed by Judge Paul G Rosenblatt on 01/11/10. (ESL, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Eduardo Benhur Ruiz, vs. Petitioner,

Charles L. Ryan, et al., Respondents.

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No. CV-07-2491-PHX-PGR (HCE) ORDER

Having reviewed de novo the Report and Recommendation of Magistrate Judge Estrada in light in Petitioner's Objection to Magistrate Judge's Report and Recommendation (doc. #17), the Court finds that the petitioner's objections should be overruled because the Magistrate Judge correctly concluded that the petitioner's habeas petition, filed pursuant to 28 U.S.C. § 2254 on November 18, 2007, must be dismissed as it was filed almost one year after the expiration of the statute of limitations set forth in 28 U.S.C. § 2244(d)(1). As the Magistrate Judge correctly determined, the AEDPA's one-year limitations period commenced running on December 8, 2005, and expired on December 8, 2006. Although the petitioner cursorily raises the issue of equitable tolling for the first time in his objections to the Report and Recommendation, the Court concludes that the petitioner is not entitled to any equitable tolling of the

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limitations period because he has not made any adequate showing that his failure to timely file his § 2254 petition was caused by any extraordinary circumstance beyond his control. Therefore, IT IS ORDERED that the Magistrate Judge's Report and Recommendation (doc. #16) is accepted and adopted by the Court. IT IS FURTHER ORDERED that the petitioner's Petition for Writ of Habeas Corpus by a Person in State Custody Pursuant to 28 U.S.C. § 2254 is denied as time-barred and that this action is dismissed with prejudice. The Clerk of the Court shall enter judgment accordingly. IT IS FURTHER ORDERED that no certificate of appealability shall issue. DATED this 11th day of January, 2010.

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