Wingfield v. Ryan et al

Filing 14

ORDER - IT IS ORDERED that the Magistrate Judge's 13 Report and Recommendation is accepted and adopted by the Court. 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. FURTHER ORDERED that no certificate of appealability shall issue. Signed by Judge Paul G Rosenblatt on 1/25/10. (SAT)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Glen Russell Wingfield, vs. Petitioner,

Charles L. Ryan. et al., Respondents.

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No. CV-09-1385-PHX-PGR (MHB) ORDER

Having reviewed de novo the Report and Recommendation of Magistrate Judge Burns notwithstanding that no party has filed any objection to the Report and Recommendation, the Court finds that the Magistrate Judge correctly determined that the petitioner's habeas petition, filed pursuant to 28 U.S.C. § 2254, must be dismissed because it was filed after the AEDPA's one-year limitations period had expired.1 See 28 U.S.C. § 2244(d)(1). Therefore, IT IS ORDERED that the Magistrate Judge's Report and Recommendation (doc. #13) is accepted and adopted by the Court. IT IS FURTHER ORDERED that the petitioner's Petition for Writ of Habeas
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The Court also agrees with the Magistrate Judge's alternative determination that the habeas petition is also subject to dismissal pursuant to 28 U.S.C. § 2244(b)(1)(A) because the petitioner's sole claim was never raised in state court and is thus unexhausted.

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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 25th day of January, 2010.

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