King # 179391 v. Ryan et al
Filing
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MEMORANDUM OF DECISION AND ORDER ADOPTING 17 Report and Recommendation of the Magistrate Judge. Petitioner's Petition for Writ of Habeas Corpus is DENIED. The Clerk shall enter judgment. A Certificate of Appealability and leave to proceed in forma pauperis on appeal are DENIED because the dismissal was justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable. Signed by Senior Judge Stephen M McNamee on 12/14/15. (LSP)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Frederick King, Jr.,
Petitioner,
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v.
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Charles L. Ryan, et al.,
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Respondents.
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No. CV-14-1229-PHX-SMM (MHB)
MEMORANDUM OF DECISION
AND ORDER
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Pending before the Court is Petitioner’s Petition for Writ of Habeas Corpus pursuant
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to 28 U.S.C. § 2254. (Doc. 5.) The matter was referred to Magistrate Judge Michelle H.
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Burns for a Report and Recommendation. (Doc. 10.) Magistrate Judge Burns has filed a
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Report and Recommendation with this Court. (Doc. 17.) Petitioner did not file an objection
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to the Report and Recommendation.
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STANDARD OF REVIEW
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The Court “may accept, reject, or modify, in whole or in part, the findings or
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recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1)(C); see Baxter v. Sullivan,
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923 F.2d 1391, 1394 (9th Cir. 1991). Parties have fourteen days from the service of a copy
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of the Magistrate’s recommendation within which to file specific written objections to the
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Court. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. Failure to object to a Magistrate Judge’s
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recommendation relieves the Court of conducting de novo review of the Magistrate Judge’s
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factual findings and waives all objections to those findings on appeal. See Turner v. Duncan,
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158 F.3d 449, 455 (9th Cir. 1998). A failure to object to a Magistrate Judge’s conclusion “is
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a factor to be weighed in considering the propriety of finding waiver of an issue on appeal.”
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Id.
DISCUSSION
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Having reviewed the Report and Recommendation of the Magistrate Judge, and no
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Objections having been made by any party, the Court hereby incorporates and adopts the
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Magistrate Judge’s Report and Recommendation.
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The standard for this Court to issue a Certificate of Appealability (“COA”) is whether
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the applicant has “made a substantial showing of the denial of a constitutional right .” 28
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U.S.C. § 2253(c)(2); Rule 11(a) of the Rules Governing Section 2254 Cases. “Where a
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district court has rejected the constitutional claims on the merits, the showing required to
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satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists
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would find the district court’s assessment of the constitutional claims debatable or wrong.”
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Slack v. McDaniel, 529 U.S. 473, 484 (2000). “When the district court denies a habeas
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petition on procedural grounds without reaching the prisoner’s underlying constitutional
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claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find
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it debatable whether the petition states a valid claim of the denial of a constitutional right and
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that jurists of reason would find it debatable whether the district court was correct in its
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procedural ruling.” Id.
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CONCLUSION
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Accordingly, for the reasons set forth,
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IT IS HEREBY ORDERED that the Court adopts the Report and Recommendation
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of the Magistrate Judge that Petitioner’s habeas petition was untimely filed under the
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AEDPA’s one-year statute of limitations, see 28 U.S.C. § 2244(d), and that Petitioner is not
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entitled to equitable tolling of the limitations period. (Doc. 17.)
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IT IS FURTHER ORDERED that Petitioner’s Petition for Writ of Habeas Corpus
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is DENIED, terminating this case. The Clerk of the Court shall enter judgment accordingly.
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IT IS FURTHER ORDERED that a Certificate of Appealability and leave to
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proceed in forma pauperis on appeal are DENIED because the dismissal was justified by a
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plain procedural bar and jurists of reason would not find the procedural ruling debatable.
DATED this 14th day of December, 2015.
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