Traverso v. Ryan

Filing 52

ORDER AND DENIAL OF CERTIFICATE OF APPEALABILITY AND IN FORMA PAUPERIS STATUS - The R&R of Magistrate Judge Boyle, (Doc. 48 ), is ACCEPTED. IT IS FURTHER ORDERED that, having considered the issuance of a Certificate of Appealability from the order denying Petitioner's Petition for a Writ of Habeas Corpus, a Certificate of Appealability and leave to proceed in forma pauperis on appeal are DENIED because dismissal of the Petition is justified by a plain procedural bar. Signed by Judge Douglas L Rayes on 07/30/2015. (ATD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Michael Eugene Traverso,
Petitioner,

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No. CV-13-00224-PHX-DLR
ORDER

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v.

AND

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Charles L. Ryan,

DENIAL OF CERTIFICATE OF
APPEALABILITY AND IN FORMA
PAUPERIS STATUS

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Respondent.

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Pending before the Court is the Report and Recommendation (“R&R”) of

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Magistrate Judge John Z. Boyle, (Doc. 48), regarding Petitioner’s Petition for Writ of

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Habeas Corpus filed pursuant to 28 U.S.C. § 2254, (Doc. 1). The R&R recommends that

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the Petition for Writ of Habeas Corpus be denied and dismissed with prejudice. The

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Magistrate Judge advised the parties that they had fourteen days to file objections to the

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R&R. (Doc. 48 at 8 (citing 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72).)

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Petitioner filed Objections on June 25, 2015, (Doc. 49), Respondent filed a Response on

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July 8, 2015, (Doc. 50), and Petitioner filed his Reply on July 10, 2015, (Doc. 51).

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I.

Background

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On February 1, 2013, Petitioner filed a Petition for Writ of Habeas Corpus

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pursuant to 28 U.S.C. § 2254. (Doc. 1.) On August 5, 2013, Respondent filed a Limited

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Answer to Petitioner’s Petition, arguing that Petitioner’s claims are time-barred, not

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cognizable, and/or procedurally defaulted. (Doc. 10.) Petitioner filed a Reply in Support

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of his Petition on November 15, 2013. (Doc. 17.)

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On April 14, 2014, Magistrate Judge Lawrence O. Anderson issued a Report and

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Recommendation (“R&R”) recommending that the Court deny the Petition as untimely.

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(Doc. 18.) On April 14, 2014, Petitioner filed Objections to Judge Anderson’s R&R and

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raised, for the first time, an equitable tolling argument. (Doc. 20.) On June 12, 2014,

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Respondent filed a Response to Petitioner’s Objections, arguing that equitable tolling did

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not apply to the facts of this case. (Doc. 29.) Petitioner filed a Reply in Support of his

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Objections on July 3, 2014. (Doc. 36.) Petitioner asserted that he was entitled to an

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evidentiary hearing on equitable tolling. (Id.)

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On September 30, 2014, this Court adopted Magistrate Judge Anderson’s

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determination that, when factoring in the period of time that the statute of limitations was

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tolled during Petitioner’s PCR proceeding, the applicable one-year limitations period

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expired nearly three months before the Petition was filed. (Doc. 37.) However, this

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Court referred the matter to Magistrate Judge James F. Metcalf for further proceedings to

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determine if equitable tolling applied to the facts of the case such that the Petition was

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timely filed and, if so, for an R&R on the merits. (Id.) On October 16, 2014, this matter

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was reassigned to Magistrate Judge Boyle. (Doc. 41.) On December 4, 2014, the parties

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filed a Stipulation Re: Request for Evidentiary Hearing wherein the parties stipulated that

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an evidentiary hearing was not necessary and that the facts necessary to determine the

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issues raised could be determined from the affidavits and pleadings. (Doc. 45.)

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On June 16, 2015, after considering Respondent’s Response to Petitioner’s

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Request for Evidentiary Hearing, (Doc. 42), and Petitioner’s Response to Respondent’s

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Briefing Re: Equitable Tolling, (Doc. 47), Magistrate Judge Boyle entered his R&R,

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(Doc. 48), wherein he found that Petitioner’s attorney’s reliance on a third party’s

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calculation of a deadline is not an extraordinary circumstance justifying equitable tolling.

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The R&R recommended that the Petition be denied as untimely.

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II.

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Ruling
The

Court

has

considered

the

objections

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and

reviewed

the

R&R’s

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recommendations de novo. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1) (stating that

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the court must make a de novo determination of those portions of the R&R to which

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specific objections are made).

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determinations, accepts the recommended decision within the meaning of Rule 72(b),

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Fed. R. Civ. P., and overrules Petitioner’s objections. See 28 U.S.C. § 636(b)(1) (stating

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that the district court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate”).
IT IS THEREFORE ORDERED that the R&R of Magistrate Judge Boyle, (Doc.

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The Court agrees with the Magistrate Judge’s

48), is ACCEPTED.

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IT IS FURTHER ORDERED that, having considered the issuance of a

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Certificate of Appealability from the order denying Petitioner’s Petition for a Writ of

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Habeas Corpus, a Certificate of Appealability and leave to proceed in forma pauperis on

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appeal are DENIED because dismissal of the Petition is justified by a plain procedural

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bar.

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Dated this 30th day of July, 2015.

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Douglas L. Rayes
United States District Judge

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