Hayes #59437 v. Arizona, State of

Filing 29

ORDER: IT IS ORDERED adopting the R&R in its entirety; denying and dismissing with prejudice the Second Amended Petition for Habeas Corpus (Doc. 10 ); denying a Certificate of Appealability in this matter as reasonable jurists would not find the Court's assessment of the claims debatable or wrong. Signed by Judge John J Tuchi on 9/07/2016. (REK)

1

NOT FOR PUBLICATION

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Carlester Sharrod Hayes,
Petitioner,

10
11

ORDER

v.

12

No. CV-15-02435-PHX-JJT

Arizona, State of,

13

Respondent.

14
15

At issue is United States Magistrate Judge James F. Metcalf’s Report and

16

Recommendation (“R&R”)(Doc. 26) concluding that the Court should deny and dismiss

17

the pending Second Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §

18

2254 (Doc. 10). Petitioner timely filed a Response to All Parties (Doc. 27), which this

19

Court construes as his Objections to the R&R. Therefore the Court reviews the R&R de

20

novo. Upon that review, the Court adopts the R&R in its entirety, and for the reasons

21

competently and clearly stated in the R&R, the Court will deny and dismiss the Second

22

Amended Petition with prejudice as both grounds for relief contained therein were not

23

exhausted in the state court, and are now procedurally defaulted; no statutory tolling

24

applied; and Petitioner failed to show cause and prejudice for equitable tolling. Finally,

25

Petitioner has failed to demonstrate any qualification for the Schlupp gateway.

26

Petitioner’s Objections fail to address the issues raised in the R&R. He spends

27

more than half of his two-page Objection arguing the merits of his ground that the police

28

report in his case is inconsistent with the charging document, but the Court does not reach

1

the merits of his Petition until he has satisfied the procedureal requirements of AEDPA.

2

Petitioner does attempt to reargue his mental impairment as a reason to invoke equitable

3

tolling, but he raises no argument or fact that the R&R has not already addressed and

4

correctly dispensed.

5

For all of the above reasons, and as set forth in the R&R,

6

IT IS ORDERED adopting the R&R in its entirety

7

IT IS FURTHER ORDERED denying and dismissing with prejudice the Second

8

Amended Petition for Habeas Corpus (Doc. 10).

9

IT IS FURTHER ORDERED denying a Certificate of Appealability in this matter

10

as reasonable jurists would not find the Court’s assessment of the claims debatable or

11

wrong.

12

Dated this 7th day of September, 2016.

13
14

Honorable John J. Tuchi
United States District Judge

15
16
17
18
19
20
21
22
23
24
25
26
27
28

-2-