Walker #079192 v. Ryan et al

Filing 26

ORDER the Report and Recommendation (Doc. 24 ) is ADOPTED IN FULL and the amended petition for writ of habeas corpus (Doc. 9 ) is DENIED. IT IS FURTHER ORDERED the Motion for Evidentiary Hearing (Doc. 19 ) is DENIED. IT IS FURTHER ORDERED a certif icate 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 and reasonable jurists would not find the ruling debatable and because Petitioner has not made a substantial showing of the denial of a constitutional right. Signed by Senior Judge Roslyn O Silver on 3/30/2016. (KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Michael Stephen Walker,
Petitioner,

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ORDER

v.

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No. CV-15-00072-PHX-ROS

Charles L. Ryan, et al.,

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Respondents.

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On October 21, 2015, Magistrate Judge Bridget S. Bade issued a Report and

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Recommendation (“R&R”) recommending the amended petition for writ of habeas

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corpus be denied based on a combination of procedural defects. Petitioner filed timely

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objections to the R&R, primarily arguing the procedural defects should be overlooked

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because he has only an eighth grade education and because of his “mental status.” (Doc.

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25 at 7). Having reviewed the issues de novo, the R&R will be adopted in full.

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The petition contains ten claims but the R&R correctly concludes claim two is not

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cognizable on federal habeas review. Therefore, the R&R’s analysis of that claim will be

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adopted in full and the claim dismissed. As for the remaining claims, they can be broken

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into two groups: claims based on Petitioner’s 1992 case and claims based on his 2011

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case.

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Claims three through six involve Petitioner’s 1992 case.

Those claims are

untimely and Petitioner has not carried his burden of establishing any form of tolling

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applies. Moreover, Petitioner has not made a credible claim of actual innocence such that

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the timeliness issue can be overcome. See McQuiggin v. Perkins, 133 S. Ct. 1924, 1935

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(2013) (recognizing actual innocence exception to time bar). At trial, the police officers

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testified regarding Plaintiff’s actions. The fact that Plaintiff now has a witness who

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would provide a different version of events is not enough to establish actual innocence

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because, as the Magistrate Judge pointed out, even if the new witness had provided the

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testimony she now offers, “a reasonable juror could have credited the police officers’

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testimony rather than [the new witness’s].” (Doc. 24 at 18). Accordingly, the R&R’s

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analysis of claims three through six is correct and will be adopted.

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Petitioner’s claims one and seven through ten involve his 2011 case. Claims one

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and eight were filed within one year of Petitioner’s conviction becoming final. Claims

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seven, nine, and ten, however, only appeared in an amended petition filed more than one

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year after Petitioner’s conviction became final.

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Supreme Court’s guidance on how to handle the “relation back” of new claims asserted in

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an amended petition.

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guidance, claims seven, nine, and ten are untimely because they do not arise out of the

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same “core of operative facts” as the claims in the original petition. Id. at 659.

The R&R accurately explains the

See Mayle v. Felix, 545 U.S. 644 (2005).

Pursuant to that

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That leaves only claims one and eight. The R&R is correct that Petitioner timely

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asserted these claims. However, Petitioner did not exhaust these claims in state court.

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Having failed to exhaust the claims, and with no convincing basis to excuse that failure,

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Petitioner cannot pursue his claims now. Thus, all of Petitioner’s claims fail and the

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petition must be denied in full.

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Finally, Petitioner requests the Court hold an evidentiary hearing. The Magistrate

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Judge correctly explained that, in the present circumstances where there are fatal

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procedural defects, “an evidentiary hearing would serve no purpose.” (Doc. 24 at 33).

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Therefore, the request for an evidentiary hearing will be denied.

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Accordingly,

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IT IS ORDERED the Report and Recommendation (Doc. 24) is ADOPTED IN

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FULL and the amended petition for writ of habeas corpus (Doc. 9) is DENIED.

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IT IS FURTHER ORDERED the Motion for Evidentiary Hearing (Doc. 19) is
DENIED.

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

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in forma pauperis on appeal are denied because dismissal of the petition is justified by a

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plain procedural bar and reasonable jurists would not find the ruling debatable and

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because Petitioner has not made a substantial showing of the denial of a constitutional

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right.

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Dated this 30th day of March, 2016.

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Honorable Roslyn O. Silver
Senior United States District Judge

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