Canez v. Ryan et al

Filing 36

ORDER ADOPTING AND ACCEPTING THE REPORT AND RECOMMENDATION 32 - IT IS HEREBY ORDERED that Petitioner's First Amended Petition for Writ of Habeas Corpus is dismissed and denied with prejudice. (Doc. 12 .) IT IS FURTHER ORDERED denying a Certi ficate of Appealability and denying leave to proceed in forma pauperis on appeal because Petitioner has not made a substantial showing of the denial of a constitutional right. IT IS FURTHER ORDERED granting Petitioner's motion for an extension of the deadline for responding to the Report and Recommendation. (Doc. 12 .) IT IS FURTHER ORDERED that the Clerk of the Court shall close this case. (See document for full details). Signed by Senior Judge Paul G Rosenblatt on 6/12/14. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Arturo A. Canez,
Petitioner,

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v.
Charles L. Ryan, et. al.,
Respondents.

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No. 12-CV-2232-PHX-PGR (SPL)

ORDER

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Before the Court is the Report and Recommendation of Magistrate Judge Logan (Doc.

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32), which addresses Petitioner’s First Amended Petition for Writ of Habeas Corpus, filed

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February 25, 2013, pursuant to 28 U.S.C. § 2254 (Doc. 12). Petitioner filed objections to the

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Report and Recommendation. (Doc. 34.)

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Magistrate Judge Logan recommends that the Court deny the petition as barred by

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the one-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty

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Act, 28 U.S.C. § 2244(d)(1)(A). Magistrate Judge Logan concludes that Petitioner is not

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eligible for statutory or equitable tolling. Having reviewed the matter de novo, the Court will

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adopt the Report and Recommendation.

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Petitioner’s convictions and sentences became final on October 7, 2011.1 The

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limitations period was statutorily tolled until April 29, 2011, when Petitioner’s timely-filed

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On September 10, 2007, the Arizona Court of Appeals affirmed Petitioner’s life
sentence for first-degree murder. State v. Canez, 2007 WL 5595966 (App. 2007). Petitioner’s
conviction became final 30 days later. See Ariz. R. Crim. P. 31.19(a)
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petition for postconviction relief was denied. (Doc. 20-2, Ex. P.) Petitioner filed his petition

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for habeas corpus relief on October 18, 2012 (Doc. 1), nearly six months after the limitations

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period expired.

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For the reasons set forth in the Report and Recommendation, Petitioner’s argument

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for additional statutory tolling fails because after April 29, 2011, no timely petition for

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review was pending. (See Doc. 32 at 14–15; Doc. 20-2, Ex. R.) Petitioner’s arguments for

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equitable tolling fail to meet the exceptionally high burden required for a showing that he had

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been “pursuing his rights diligently” and that “some extraordinary circumstances stood in

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[his] way.” Pace v. DiGuglielmo, 544 U.S. 408, 418–19 (2005); see, e.g., Law v. Lamarque,

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351 F.3d 919, 922 (9th Cir. 2003); Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir.
2000). Finally, Petitioner’s actual innocence argument fails because it is not supported by
new evidence showing factual innocence. See Schlup v. Delo, 513 U.S. 298, 324 (1995).
Accordingly,
IT IS HEREBY ORDERED that Magistrate Judge Logan’s Report and
Recommendation (Doc. 32) is accepted and adopted by the Court.
IT IS HEREBY ORDERED that Petitioner’s First Amended Petition for Writ of

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Habeas Corpus is dismissed and denied with prejudice. (Doc. 12.)
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IT IS FURTHER ORDERED denying a Certificate of Appealability and denying
leave to proceed in forma pauperis on appeal because Petitioner has not made a substantial
showing of the denial of a constitutional right.
IT IS FURTHER ORDERED granting Petitioner’s motion for an extension of the
deadline for responding to the Report and Recommendation. (Doc. 12.)
IT IS FURTHER ORDERED that the Clerk of the Court shall close this case.
DATED this 12th day of June, 2014.

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