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)
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-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?