Kivlehen v. Ryan et al
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)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
James Edmund Kivlehen,
Charles L. Ryan, et al.,
At issue is Petitioner James Edmund Kivlehen’s Petition for Writ of Habeas
Corpus (Doc. 1), filed February 13, 2014. Magistrate Judge John C. Boyle issued a
Report and Recommendation (“R&R”) in the matter on May 8, 2015 (Doc. 18), to which
Petitioner filed an Objection (Doc. 21). For the reasons set forth in the R&R, this Court
will deny the Petition.
In the R&R, Judge Boyle thoroughly and correctly analyzed the issues involved in
the instant Petition, and because this Court will adopt the recommendations set forth in
the R&R as well as the reasoning behind those recommendations, it will not restate those
issues or their resolution here in detail. The Petition presents a very straightforward
matter of the application of the time limitations imposed on a habeas petition under 28
U.S.C §2241 et seq. (AEDPA). As Judge Boyle recognized, determination of whether the
Petition here is timely is a two-step matter. The first step—the application of simple
arithmetic to the operative dates of Petitioner’s conviction in the underlying matter, the
finality of that judgment after direct appeal, and the various filings seeking state post
conviction review in state court and habeas review here—yields the conclusion that the
Petition is untimely, even after application of approximately 82 months of statutory
tolling while Petitioner’s multiple applications for state post-conviction review were
pending. The second step is to determine whether Petitioner is entitled to equitable
tolling. For the reasons set forth with clarity on pages 7 and 8 of the R&R, Judge Boyle
correctly concluded that Petitioner did not meet the requirements entitling him to
equitable tolling as set forth in Holland v. Florida, 560 U.S. 631, 649 (2010). Petitioner
has not shown that he has been pursuing his rights diligently throughout the at least nine
years of non-tolled time since any habeas petition would have been due.
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.
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 plane procedural bar and jurists of reason would not find the
procedural ruling debatable.
Dated this 31st day of July, 2015.
Honorable John J. Tuchi
United States District Judge
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