Bendig v. Ryan et al

Filing 19

ORDER that the Magistrate Judge's 18 Report and Recommendation is accepted and adopted by the Court; that the petitioner's Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody is denied and that th is action is dismissed with prejudice; that no certificate of apppealability shall issue and that the petitioner is not authorized to appeal in forma pauperis; that the Clerk of the Court shall enter judgment accordingly. Signed by Judge Paul G Rosenblatt on 08/31/10. (ESL)

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Bendig v. Ryan et al Doc. 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 WO IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Theodor R. Bendig, Petitioner, vs. Charles L. Ryan, et al., Respondents. ) ) ) ) ) ) ) ) ) No. CV-09-1611-PHX-PGR (ECV) ORDER ) Having reviewed de novo the Report and Recommendation of Magistrate Judge Voss 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 corpus petition, filed pursuant to 28 U.S.C. 2254, should be dismissed as time-barred because it was filed some nine years after the expiration of the AEDPA's one-year statute of limitations and the petitioner has made no showing that the limitations period should be equitably tolled. The Court further finds that the petitioner is not entitled to the issuance of a certificate of appealability pursuant to 28 U.S.C. 2254(c)(2) because the dismissal of his petition for a writ of habeas corpus is justified by a plain Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 procedural bar and jurists of reason would not find the procedural ruling debatable, and that the petitioner is not entitled to appeal in forma pauperis. pursuant to Fed.R.App.P. 24(a)(3)(A) because any such appeal would not be taken in good faith given the Court's stated reason for the dismissal of his petition. Therefore, IT IS ORDERED that the Magistrate Judge's Report and Recommendation (Doc. 18) is accepted and adopted by the Court IT IS FURTHER ORDERED that the petitioner's Petition Under 28 U.S.C. 2254 for a Writ of Habeas Corpus by a Person in State Custody is denied and that this action is dismissed with prejudice. IT IS FURTHER ORDERED that no certificate of apppealability shall issue and that the petitioner is not authorized to appeal in forma pauperis. IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly. DATED this 31st day of August, 2010. -2-

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