Luz-Hernandez v. Ryan et al

Filing 13

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)

1

NOT FOR PUBLICATION

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Gabriel Luz-Hernandez,
Petitioner,

10
11
12
13

No. CV-14-02516-PHX-JJT
ORDER

v.
Charles L. Ryan, et al.,
Respondents.

14
15

At issue is the Report and Recommendation (R&R) submitted in this matter by

16

Magistrate Judge Deborah M. Fine on April 5, 2016. (Doc. 12.) In the R&R, Judge Fine

17

recommended that the Court deny and dismiss the Petition for Writ of Habeas Corpus

18

pursuant to 28 U.S.C. § 2254 (Doc. 1). The time to object to the R&R has expired and

19

Petitioner filed no objection, which entitles the Court to treat Petitioner as assenting to

20

the adoption of the R&R. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.

21

2003). The Court nonetheless has conducted an independent review of the R&R on the

22

merits, and upon so doing concludes it is appropriate to dismiss the Petition as untimely.

23

Petitioner’s Rule 32 proceeding for Post-Conviction Relief was dismissed June 5,

24

2013, and from that date he had 35 days—until July 11, 2013—to petition the Arizona

25

Court of Appeals for review of that decision. He did not seek review, so the one-year

26

statute of limitations under AEDPA began running that day and expired July 10, 2014.

27

Petitioner did not file his Petition until November 14, 2014, which was untimely by four

28

months and four days. Judge Fine correctly concluded that statutory tolling was

1

inapplicable to this matter, and that Petitioner did not make the required showing for

2

equitable tolling, as set forth in detail in her R&R.

3

For the reasons set forth above and in detail in the R&R,

4

IT IS ORDERED adopting the Report and Recommendation (Doc. 12) in whole.

5

IT IS FURTHER ORDERED denying and dismissing with prejudice the Petition

6

(Doc. 1), and directing the Clerk of the Court to close this matter.

7

IT IS FURTHER ORDERED denying a certificate of appealability and leave to

8

proceed in forma pauperis on appeal, upon the Court’s finding that Petitioner has not

9

made a substantial showing of the denial of a constitutional right in his claim for relief.

10
11

Dated this 9th day of May, 2016.

12
13
14
15

Honorable John J. Tuchi
United States District Judge

16
17
18
19
20
21
22
23
24
25
26
27
28

-2-