Luz-Hernandez v. Ryan et al
ORDER ADOPTING REPORT AND RECOMMENDATION 12 in whole. IT IS FURTHER ORDERED denying and dismissing with prejudice the Petition (Doc. 1 ), and directing the Clerk of the Court to close this matter. IT IS FURTHER ORDERED denying a certificate of ap pealability and leave to proceed in forma pauperis on appeal, upon the Courts finding that Petitioner has not made a substantial showing of the denial of a constitutional right in his claim for relief. (See document for further details). Signed by Judge John J Tuchi on 5/9/16. (LAD)
NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Charles L. Ryan, et al.,
At issue is the Report and Recommendation (R&R) submitted in this matter by
Magistrate Judge Deborah M. Fine on April 5, 2016. (Doc. 12.) In the R&R, Judge Fine
recommended that the Court deny and dismiss the Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 (Doc. 1). The time to object to the R&R has expired and
Petitioner filed no objection, which entitles the Court to treat Petitioner as assenting to
the adoption of the R&R. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.
2003). The Court nonetheless has conducted an independent review of the R&R on the
merits, and upon so doing concludes it is appropriate to dismiss the Petition as untimely.
Petitioner’s Rule 32 proceeding for Post-Conviction Relief was dismissed June 5,
2013, and from that date he had 35 days—until July 11, 2013—to petition the Arizona
Court of Appeals for review of that decision. He did not seek review, so the one-year
statute of limitations under AEDPA began running that day and expired July 10, 2014.
Petitioner did not file his Petition until November 14, 2014, which was untimely by four
months and four days. Judge Fine correctly concluded that statutory tolling was
inapplicable to this matter, and that Petitioner did not make the required showing for
equitable tolling, as set forth in detail in her R&R.
For the reasons set forth above and in detail in the R&R,
IT IS ORDERED adopting the Report and Recommendation (Doc. 12) in whole.
IT IS FURTHER ORDERED denying and dismissing with prejudice the Petition
(Doc. 1), and directing the Clerk of the Court to close this matter.
IT IS FURTHER ORDERED denying a certificate of appealability and leave to
proceed in forma pauperis on appeal, upon the Court’s finding that Petitioner has not
made a substantial showing of the denial of a constitutional right in his claim for relief.
Dated this 9th day of May, 2016.
Honorable John J. Tuchi
United States District Judge
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