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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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Richard L. O’Neil, Petitioner, 10 11 vs. 12 Charles Ryan, et al., 13 Respondents. 14 ) ) ) ) ) ) ) ) ) ) ) No. CV-11-02170-PHX-ROS ORDER 15 16 On November 4, 2011, Petitioner Richard L. O’Neil filed a petition for writ of habeas 17 corpus. (Doc. 1). On November 20, 2012, Magistrate Judge David K. Duncan issued a 18 Report and Recommendation (“R&R”) recommending the petition be denied as untimely. 19 Petitioner filed objections to the R&R. (Doc. 15). 20 A district judge “may accept, reject, or modify, in whole or in part, the findings or 21 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). Where any party has 22 filed timely objections to the magistrate judge’s report and recommendations, the district 23 court’s review of the part objected to is to be de novo. Id. Here, Petitioner has objected to 24 “the entirety” of the R&R. (Doc. 15 at 2). Generally, objections must be specific. Fed. R. 25 Civ. P. 72(b)(2). And “general, non-specific objections” are not sufficient to require the 26 District Court “conduct de novo review of the entire R & R.” Sullivan v. Schriro, 2006 WL 27 1516005 (D. Ariz.). Thus, Petitioner is not entitled to de novo review. In an abundance of 28 caution, however, the Court has overlooked the insufficient nature of the objections and 1 reviewed the issues de novo. Based on that review, Petitioner is not entitled to relief. 2 A “petition for writ of habeas corpus ordinarily must be filed within one year after the 3 state court judgment becomes final by the conclusion of direct review or the expiration of the 4 time to seek direct review.” Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010). This one- 5 year clock is subject to statutory and equitable tolling. Wood v. Milyard, 132 S. Ct. 1826, 6 1831 (2012). As explained in the R&R, Petitioner’s conviction became final on September 7 28, 2008. Thus, Petitioner should have filed his petition no later than September 28, 2009. 8 Petitioner, however, waited until November 4, 2011 to file his petition. Absent statutory or 9 equitable tolling, the petition is well outside the permissible time frame. 10 The application of statutory tolling is straightforward. Petitioner did not have any 11 form of request for post-conviction relief pending in state court between September 2008 and 12 2010. Petitioner did seek post-conviction relief in 2010, but that was well after the one-year 13 period had expired and that untimely attempt does not revive the federal limitations period. 14 Accordingly, there is no basis for statutory tolling of the deadline. 15 In an attempt to establish equitable tolling, Petitioner argues he is actually innocent 16 of the crimes at issue. Petitioner appears to have voluntarily dismissed his “actual 17 innocence” claim earlier in this case but even assuming Petitioner has presented such a claim, 18 it is not meritorious. (Doc. 7, 13). The arguments Petitioner makes regarding “actual 19 innocence” were presented and rejected during trial and on direct appeal. They remain 20 unconvincing and cannot serve as a basis for equitable tolling. 21 Neither statutory nor equitable tolling applies, meaning this petition is untimely. 22 Accordingly, 23 IT IS ORDERED the Report and Recommendation (Doc. 14) is ADOPTED. The 24 petition for a writ of habeas corpus is DENIED. The Clerk shall enter judgment accordingly. 25 / 26 / 27 / 28 -2- 1 IT IS FURTHER ORDERED a Certificate of Appealability is DENIED. Dismissal 2 of the petition is justified by a plain procedural bar and jurists of reason would not find the 3 ruling debatable. 4 DATED this 30th day of January, 2013. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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