Watson v. Credio et al

Filing 14

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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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Verne Leslie Watson, Petitioner, 10 11 v. 12 Ron Credio, et al., 13 No. CV-14-02501-PHX-DLR ORDER AND DENIAL OF CERTIFICATE OF APPEALABILITY AND IN FORMA PAUPERIS STATUS Respondents. 14 15 Pending before the Court is the Report and Recommendation (“R&R”) of 16 Magistrate Judge David K. Duncan, (Doc. 12), regarding Petitioner’s Petition for Writ of 17 Habeas Corpus filed pursuant to 28 U.S.C. § 2254, (Doc. 1). The R&R recommends that 18 the Petition be denied and dismissed with prejudice. The Magistrate Judge advised the 19 parties that they had fourteen days to file objections to the R&R. (Doc. 12 at 5 (citing 28 20 U.S.C. § 636(b)). 21 The Court has considered the objections and reviewed the R&R de novo. See Fed. 22 R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1) (stating that the court must make a de novo 23 determination of those portions of the R&R to which specific objections are made). The 24 Court agrees with the Magistrate Judge’s determinations, accepts the recommended 25 decision within the meaning of Federal Rule of Civil Procedure 72(b), and overrules 26 Petitioner’s objections. See 28 U.S.C. § 636(b)(1) (stating that the district court “may 27 accept, reject, or modify, in whole or in part, the findings or recommendations made by 28 the magistrate”). 1 Petitioner’s objection to the R&R argues, without authority, that the Court can 2 ignore the one year period of limitations set forth in 28 U.S.C. § 2244(d)(1)(A), which 3 Petitioner characterizes as “artificial arbitrary and misconstrued rules and deadlines.” 4 (Doc. 13 at 4.) Petitioner does not challenge the R&R’s finding that the one year 5 limitation period expired on July 8, 2011, more than two years before his Petition was 6 filed. Nor does Petitioner challenge the R&R’s finding that he is not entitled to equitable 7 tolling because he failed to demonstrate that he pursued his rights diligently and that 8 some extraordinary circumstance prevented him from filing his petition. (Doc. 12 at 5.) 9 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 10 11 Magistrate Judge, (Doc. 12), is ACCEPTED. 12 IT IS FURTHER ORDERED that, having considered the issuance of a 13 Certificate of Appealability from the order denying Petitioner’s Petition for Writ of 14 Habeas Corpus, a Certificate of Appealability and leave to proceed in forma pauperis on 15 appeal are DENIED because dismissal of the Petition is justified by a plain procedural 16 bar. 17 IT IS FURTHER ORDERED that the Clerk of the Court enter judgment denying 18 and dismissing Petitioner’s Petition for Writ of Habeas Corpus filed pursuant to 28 19 U.S.C. § 2254, (Doc. 1), with prejudice. The Clerk shall terminate this action. 20 Dated this 25th day of June, 2015. 21 22 23 24 Douglas L. Rayes United States District Judge 25 26 27 28 -2-

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