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