Moreno v. Ryan et al
Filing
16
ORDER: The Magistrate Judge's Report and Recommendation 15 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; No certificate of appealability shall issue and the petitioner is denied leave to appeal in forma pauperis. The Clerk of the Court shall enter judgment accordingly. Signed by Senior Judge Paul G Rosenblatt on 1/2/2014. (ALS)
1
WO
2
3
4
5
6
IN THE UNITED STATES DISTRICT COURT
7
FOR THE DISTRICT OF ARIZONA
8
9
10
Abraham Barrera Moreno,
11
Petitioner,
12
13
14
vs.
Charles L. Ryan, et al.,
Respondents.
15
)
)
)
)
)
)
)
)
)
)
)
No. CV-12-01555-PHX-PGR (LOA)
ORDER
16
Having reviewed de novo the Report and Recommendation of Magistrate
17
Judge Anderson notwithstanding that no party has filed any objections to the Report
18
and Recommendation, the Court concludes that the Magistrate Judge correctly
19
determined that the petitioner’s habeas petition, filed pursuant to 28 U.S.C. § 2254,
20
should be dismissed as time-barred.
21
First, the Court agrees with the Magistrate Judge that the one-year statute of
22
limitations of the Antiterrorism and Effective Death Penalty Act began to run on
23
October 15, 2010 pursuant to 28 U.S.C. 2244(d)(1)(A), the date his judgment of
24
conviction became final, and that it expired on October 17, 2011, approximately nine
25
months before the petitioner filed this action on July 13, 2012. To the extent that the
26
petitioner argues that the Supreme Court’s decision in Martinez v. Ryan, 132 S.Ct.
1
1309 (2012), issued on March 20, 2012, delayed the start of the limitations period
2
pursuant to either 28 U.S.C. § 2244(d)(1)(C), which concerns newly recognized
3
constitutional rights made retroactive by the Supreme Court, or § 2244(d)(1)(D),
4
which concerns the discovery of the factual predicate of an alleged claim, the
5
Magistrate Judge correctly concluded that Martinez has no applicability to this action
6
as it does not concern the timeliness of a habeas petition.
7
Second, the Court agrees with the Magistrate Judge that the petitioner is not
8
entitled to equitable tolling of the limitations period because he has not shown the
9
existence of any extraordinary circumstance that would justify such tolling, nor has
10
he shown that any external impediment frustrated the diligent pursuant of his claims.
11
IT IS THEREFORE ORDERED that the Magistrate Judge’s Report and
12
Recommendation (Doc. 15) is accepted and adopted by the Court.
13
IT IS FURTHER ORDERED that the petitioner’s Petition Under 28 U.S.C. §
14
2254 for a Writ of Habeas Corpus by a Person in State Custody is denied and that
15
this action is dismissed.
16
IT IS FURTHER ORDERED that no certificate of appealability shall issue and
17
that the petitioner is denied leave to appeal in forma pauperis because the dismissal
18
of the petitioner’s habeas petition is justified by a plain procedural bar and jurists of
19
reason would not find the procedural ruling debatable.
20
21
22
IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment
accordingly.
DATED this 2nd day of January, 2014.
23
24
25
26
-2-
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?