Myers v. Ryan et al

Filing 17

ORDER FROM CHAMBERS adopting the magistrate judge's recommended findings and conclusions 16 . The Petition for Writ of Habeas is DISMISSED with prejudice. The Clerk of Court will please close the case file. Signed by Judge John W Sedwick on 6/16/11. (TLJ)

UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA

GEORGE ALAN MYERS,
Petitioner,
vs.
CHARLES RYAN, et al.,
Respondents.

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2:10-cv-00595-JWS (JRI)
ORDER FROM CHAMBERS
[Re:

Report at docket 16]

I. MATTER PRESENTED
Petitioner Myers sought a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The matter was fully briefed. At docket 16 Magistrate Judge Irwin filed a report
recommending that the petition be dismissed with prejudice. Myers has not filed any
objections, and the time for objections has expired. The matter is ripe for decision.
II. STANDARD OF REVIEW
The district court may “accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate.”1 When reviewing a magistrate judge’s
report and recommendation in a case such as this one, the district court conducts de

1

28 U.S.C. § 636(b)(1).

novo review of all conclusions of law,2 and any findings of fact to which objections have
been made.3 Uncontested findings of fact are reviewed for clear error.4
III. DISCUSSION
Having reviewed the file and applied the standard of review articulated above,
this court concludes that Judge Irwin’s careful analysis is correct. He has correctly
concluded that the petition is untimely. He has also correctly concluded that Myers has
not shown that the equitable tolling applies to extend the time for filing the petition.
IV. CONCLUSION
For the reasons above, this court adopts the magistrate judge’s recommended
findings and conclusions. Based thereon, the petition for a writ of habeas corpus is
DISMISSED with prejudice. The Clerk of Court will please close the case file.
This court further concludes that Myer is not entitled to a certificate of
appealability. To appeal Myers must apply to the Court of Appeals for the necessary
certificate. See 28 U.S.C. § 2253(c)(2) and Fed. R. App. P. 22(b).
DATED this 16th day of June 2011.

/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

2

Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989), overruled on other grounds by
Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996).
3

28 U.S.C. § 636(b)(1).

4

Taberer v. Armstrong World Industries, Inc., 954 F.2d 888, 906 (3d Cir. 1992).

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