Kivlehen v. Ryan et al

Filing 22

ORDER ADOPTING REPORT AND RECOMMENDATION. It is ordered adopting Magistrate Judge Boyle's R&R in its entirety and incorporating same into this Order; and denying the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 1 and dismissing this matter with prejudice. It is further ordered denying a Certificate of Appealability and leave to proceed in forma pauperis on appeal in this matter because the dismissal of the instant Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable. Signed by Judge John J Tuchi on 7/31/2015. (ACL)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 James Edmund Kivlehen, Petitioner, 10 11 12 13 No. CV-14-00279-PHX-JJT ORDER v. Charles L. Ryan, et al., Respondents. 14 At issue is Petitioner James Edmund Kivlehen’s Petition for Writ of Habeas 15 Corpus (Doc. 1), filed February 13, 2014. Magistrate Judge John C. Boyle issued a 16 Report and Recommendation (“R&R”) in the matter on May 8, 2015 (Doc. 18), to which 17 Petitioner filed an Objection (Doc. 21). For the reasons set forth in the R&R, this Court 18 will deny the Petition. 19 In the R&R, Judge Boyle thoroughly and correctly analyzed the issues involved in 20 the instant Petition, and because this Court will adopt the recommendations set forth in 21 the R&R as well as the reasoning behind those recommendations, it will not restate those 22 issues or their resolution here in detail. The Petition presents a very straightforward 23 matter of the application of the time limitations imposed on a habeas petition under 28 24 U.S.C §2241 et seq. (AEDPA). As Judge Boyle recognized, determination of whether the 25 Petition here is timely is a two-step matter. The first step—the application of simple 26 arithmetic to the operative dates of Petitioner’s conviction in the underlying matter, the 27 finality of that judgment after direct appeal, and the various filings seeking state post 28 conviction review in state court and habeas review here—yields the conclusion that the 1 Petition is untimely, even after application of approximately 82 months of statutory 2 tolling while Petitioner’s multiple applications for state post-conviction review were 3 pending. The second step is to determine whether Petitioner is entitled to equitable 4 tolling. For the reasons set forth with clarity on pages 7 and 8 of the R&R, Judge Boyle 5 correctly concluded that Petitioner did not meet the requirements entitling him to 6 equitable tolling as set forth in Holland v. Florida, 560 U.S. 631, 649 (2010). Petitioner 7 has not shown that he has been pursuing his rights diligently throughout the at least nine 8 years of non-tolled time since any habeas petition would have been due. 9 10 11 12 IT IS ORDERED adopting Magistrate Judge Boyle’s R&R in its entirety and incorporating same into this Order. IT IS FURTHER ORDERED denying the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) and dismissing this matter with prejudice. 13 IT IS FURTHER ORDERED denying a Certificate of Appealability and leave to 14 proceed in forma pauperis on appeal in this matter because the dismissal of the instant 15 Petition is justified by a plane procedural bar and jurists of reason would not find the 16 procedural ruling debatable. 17 Dated this 31st day of July, 2015. 18 19 Honorable John J. Tuchi United States District Judge 20 21 22 23 24 25 26 27 28 -2-

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