Hayes #59437 v. Arizona, State of
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)
NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Carlester Sharrod Hayes,
Arizona, State of,
At issue is United States Magistrate Judge James F. Metcalf’s Report and
Recommendation (“R&R”)(Doc. 26) concluding that the Court should deny and dismiss
the pending Second Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §
2254 (Doc. 10). Petitioner timely filed a Response to All Parties (Doc. 27), which this
Court construes as his Objections to the R&R. Therefore the Court reviews the R&R de
novo. Upon that review, the Court adopts the R&R in its entirety, and for the reasons
competently and clearly stated in the R&R, the Court will deny and dismiss the Second
Amended Petition with prejudice as both grounds for relief contained therein were not
exhausted in the state court, and are now procedurally defaulted; no statutory tolling
applied; and Petitioner failed to show cause and prejudice for equitable tolling. Finally,
Petitioner has failed to demonstrate any qualification for the Schlupp gateway.
Petitioner’s Objections fail to address the issues raised in the R&R. He spends
more than half of his two-page Objection arguing the merits of his ground that the police
report in his case is inconsistent with the charging document, but the Court does not reach
the merits of his Petition until he has satisfied the procedureal requirements of AEDPA.
Petitioner does attempt to reargue his mental impairment as a reason to invoke equitable
tolling, but he raises no argument or fact that the R&R has not already addressed and
For all of the above reasons, and as set forth in the R&R,
IT IS ORDERED adopting the R&R in its entirety
IT IS FURTHER ORDERED denying and dismissing with prejudice the Second
Amended Petition for Habeas Corpus (Doc. 10).
IT IS FURTHER ORDERED denying a Certificate of Appealability in this matter
as reasonable jurists would not find the Court’s assessment of the claims debatable or
Dated this 7th day of September, 2016.
Honorable John J. Tuchi
United States District Judge
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