Watson v. Credio et al
Filing
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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)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Verne Leslie Watson,
Petitioner,
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v.
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Ron Credio, et al.,
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No. CV-14-02501-PHX-DLR
ORDER
AND
DENIAL OF CERTIFICATE OF
APPEALABILITY AND IN FORMA
PAUPERIS STATUS
Respondents.
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Pending before the Court is the Report and Recommendation (“R&R”) of
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Magistrate Judge David K. Duncan, (Doc. 12), regarding Petitioner’s Petition for Writ of
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Habeas Corpus filed pursuant to 28 U.S.C. § 2254, (Doc. 1). The R&R recommends that
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the Petition be denied and dismissed with prejudice. The Magistrate Judge advised the
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parties that they had fourteen days to file objections to the R&R. (Doc. 12 at 5 (citing 28
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U.S.C. § 636(b)).
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The Court has considered the objections and reviewed the R&R de novo. See Fed.
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R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1) (stating that the court must make a de novo
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determination of those portions of the R&R to which specific objections are made). The
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Court agrees with the Magistrate Judge’s determinations, accepts the recommended
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decision within the meaning of Federal Rule of Civil Procedure 72(b), and overrules
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Petitioner’s objections. See 28 U.S.C. § 636(b)(1) (stating that the district court “may
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accept, reject, or modify, in whole or in part, the findings or recommendations made by
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the magistrate”).
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Petitioner’s objection to the R&R argues, without authority, that the Court can
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ignore the one year period of limitations set forth in 28 U.S.C. § 2244(d)(1)(A), which
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Petitioner characterizes as “artificial arbitrary and misconstrued rules and deadlines.”
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(Doc. 13 at 4.) Petitioner does not challenge the R&R’s finding that the one year
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limitation period expired on July 8, 2011, more than two years before his Petition was
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filed. Nor does Petitioner challenge the R&R’s finding that he is not entitled to equitable
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tolling because he failed to demonstrate that he pursued his rights diligently and that
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some extraordinary circumstance prevented him from filing his petition. (Doc. 12 at 5.)
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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
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Magistrate Judge, (Doc. 12), is ACCEPTED.
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IT IS FURTHER ORDERED that, having considered the issuance of a
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Certificate of Appealability from the order denying Petitioner’s Petition for Writ of
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Habeas Corpus, a Certificate of Appealability and leave to proceed in forma pauperis on
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appeal are DENIED because dismissal of the Petition is justified by a plain procedural
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bar.
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IT IS FURTHER ORDERED that the Clerk of the Court enter judgment denying
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and dismissing Petitioner’s Petition for Writ of Habeas Corpus filed pursuant to 28
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U.S.C. § 2254, (Doc. 1), with prejudice. The Clerk shall terminate this action.
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Dated this 25th day of June, 2015.
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Douglas L. Rayes
United States District Judge
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