Watson v. Credio et al
ORDER AND DENIAL OF CERTIFICATE OF APPEALABILITY AND IN FORMA PAUPERIS STATUS - The 12 Report and Recommendation of the Magistrate Judge is ACCEPTED. IT IS FURTHER ORDERED that, having considered the issuance of a Certificate of Appealability fr om the order denying Petitioner's Petition for Writ of Habeas Corpus, a Certificate of Appealability and leave to proceed in forma pauperis on appeal are DENIED because dismissal of the Petition is justified by a plain procedural bar. The Cle rk must enter judgment denying and dismissing Petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254, (Doc. 1 ), with prejudice. The Clerk shall terminate this action. Signed by Judge Douglas L Rayes on 06/25/15. (ATD)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Verne Leslie Watson,
Ron Credio, et al.,
DENIAL OF CERTIFICATE OF
APPEALABILITY AND IN FORMA
Pending before the Court is the Report and Recommendation (“R&R”) of
Magistrate Judge David K. Duncan, (Doc. 12), regarding Petitioner’s Petition for Writ of
Habeas Corpus filed pursuant to 28 U.S.C. § 2254, (Doc. 1). The R&R recommends that
the Petition be denied and dismissed with prejudice. The Magistrate Judge advised the
parties that they had fourteen days to file objections to the R&R. (Doc. 12 at 5 (citing 28
U.S.C. § 636(b)).
The Court has considered the objections and reviewed the R&R de novo. See Fed.
R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1) (stating that the court must make a de novo
determination of those portions of the R&R to which specific objections are made). The
Court agrees with the Magistrate Judge’s determinations, accepts the recommended
decision within the meaning of Federal Rule of Civil Procedure 72(b), and overrules
Petitioner’s objections. See 28 U.S.C. § 636(b)(1) (stating that the district court “may
accept, reject, or modify, in whole or in part, the findings or recommendations made by
Petitioner’s objection to the R&R argues, without authority, that the Court can
ignore the one year period of limitations set forth in 28 U.S.C. § 2244(d)(1)(A), which
Petitioner characterizes as “artificial arbitrary and misconstrued rules and deadlines.”
(Doc. 13 at 4.) Petitioner does not challenge the R&R’s finding that the one year
limitation period expired on July 8, 2011, more than two years before his Petition was
filed. Nor does Petitioner challenge the R&R’s finding that he is not entitled to equitable
tolling because he failed to demonstrate that he pursued his rights diligently and that
some extraordinary circumstance prevented him from filing his petition. (Doc. 12 at 5.)
The Court agrees that the Petition is untimely and is not entitled to equitable tolling.
IT IS THEREFORE ORDERED that the Report and Recommendation of the
Magistrate Judge, (Doc. 12), is ACCEPTED.
IT IS FURTHER ORDERED that, having considered the issuance of a
Certificate of Appealability from the order denying Petitioner’s Petition for Writ of
Habeas Corpus, a Certificate of Appealability and leave to proceed in forma pauperis on
appeal are DENIED because dismissal of the Petition is justified by a plain procedural
IT IS FURTHER ORDERED that the Clerk of the Court enter judgment denying
and dismissing Petitioner’s Petition for Writ of Habeas Corpus filed pursuant to 28
U.S.C. § 2254, (Doc. 1), with prejudice. The Clerk shall terminate this action.
Dated this 25th day of June, 2015.
Douglas L. Rayes
United States District Judge
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