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)

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-