O'Neil v. Ryan et al

Filing 16

ORDER ADOPTING REPORT AND RECOMMENDATION, the 14 Report and Recommendation is adopted; the petition for a writ of habeas corpus is denied; the Clerk shall enter judgment accordingly; a Certificate of Appealability is denied, dismissal of the petition is justified by a plain procedural bar and jurists of reason would not find the ruling debatable. Signed by Chief Judge Roslyn O Silver on 1/30/13. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Richard L. O’Neil,
Petitioner,

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vs.

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Charles Ryan, et al.,
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Respondents.
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No. CV-11-02170-PHX-ROS
ORDER

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On November 4, 2011, Petitioner Richard L. O’Neil filed a petition for writ of habeas

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corpus. (Doc. 1). On November 20, 2012, Magistrate Judge David K. Duncan issued a

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Report and Recommendation (“R&R”) recommending the petition be denied as untimely.

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Petitioner filed objections to the R&R. (Doc. 15).

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A district judge “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). Where any party has

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filed timely objections to the magistrate judge’s report and recommendations, the district

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court’s review of the part objected to is to be de novo. Id. Here, Petitioner has objected to

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“the entirety” of the R&R. (Doc. 15 at 2). Generally, objections must be specific. Fed. R.

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Civ. P. 72(b)(2). And “general, non-specific objections” are not sufficient to require the

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District Court “conduct de novo review of the entire R & R.” Sullivan v. Schriro, 2006 WL

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1516005 (D. Ariz.). Thus, Petitioner is not entitled to de novo review. In an abundance of

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caution, however, the Court has overlooked the insufficient nature of the objections and

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reviewed the issues de novo. Based on that review, Petitioner is not entitled to relief.

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A “petition for writ of habeas corpus ordinarily must be filed within one year after the

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state court judgment becomes final by the conclusion of direct review or the expiration of the

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time to seek direct review.” Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010). This one-

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year clock is subject to statutory and equitable tolling. Wood v. Milyard, 132 S. Ct. 1826,

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1831 (2012). As explained in the R&R, Petitioner’s conviction became final on September

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28, 2008. Thus, Petitioner should have filed his petition no later than September 28, 2009.

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Petitioner, however, waited until November 4, 2011 to file his petition. Absent statutory or

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equitable tolling, the petition is well outside the permissible time frame.

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The application of statutory tolling is straightforward. Petitioner did not have any

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form of request for post-conviction relief pending in state court between September 2008 and

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2010. Petitioner did seek post-conviction relief in 2010, but that was well after the one-year

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period had expired and that untimely attempt does not revive the federal limitations period.

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Accordingly, there is no basis for statutory tolling of the deadline.

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In an attempt to establish equitable tolling, Petitioner argues he is actually innocent

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of the crimes at issue. Petitioner appears to have voluntarily dismissed his “actual

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innocence” claim earlier in this case but even assuming Petitioner has presented such a claim,

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it is not meritorious. (Doc. 7, 13). The arguments Petitioner makes regarding “actual

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innocence” were presented and rejected during trial and on direct appeal. They remain

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unconvincing and cannot serve as a basis for equitable tolling.

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Neither statutory nor equitable tolling applies, meaning this petition is untimely.

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Accordingly,

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IT IS ORDERED the Report and Recommendation (Doc. 14) is ADOPTED. The

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petition for a writ of habeas corpus is DENIED. The Clerk shall enter judgment accordingly.

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IT IS FURTHER ORDERED a Certificate of Appealability is DENIED. Dismissal

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of the petition is justified by a plain procedural bar and jurists of reason would not find the

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ruling debatable.

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DATED this 30th day of January, 2013.

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