Hayes #59437 v. Arizona, State of
Filing
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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)
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NOT FOR PUBLICATION
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Carlester Sharrod Hayes,
Petitioner,
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ORDER
v.
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No. CV-15-02435-PHX-JJT
Arizona, State of,
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Respondent.
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At issue is United States Magistrate Judge James F. Metcalf’s Report and
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Recommendation (“R&R”)(Doc. 26) concluding that the Court should deny and dismiss
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the pending Second Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §
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2254 (Doc. 10). Petitioner timely filed a Response to All Parties (Doc. 27), which this
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Court construes as his Objections to the R&R. Therefore the Court reviews the R&R de
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novo. Upon that review, the Court adopts the R&R in its entirety, and for the reasons
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competently and clearly stated in the R&R, the Court will deny and dismiss the Second
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Amended Petition with prejudice as both grounds for relief contained therein were not
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exhausted in the state court, and are now procedurally defaulted; no statutory tolling
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applied; and Petitioner failed to show cause and prejudice for equitable tolling. Finally,
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Petitioner has failed to demonstrate any qualification for the Schlupp gateway.
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Petitioner’s Objections fail to address the issues raised in the R&R. He spends
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more than half of his two-page Objection arguing the merits of his ground that the police
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report in his case is inconsistent with the charging document, but the Court does not reach
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the merits of his Petition until he has satisfied the procedureal requirements of AEDPA.
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Petitioner does attempt to reargue his mental impairment as a reason to invoke equitable
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tolling, but he raises no argument or fact that the R&R has not already addressed and
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correctly dispensed.
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For all of the above reasons, and as set forth in the R&R,
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IT IS ORDERED adopting the R&R in its entirety
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IT IS FURTHER ORDERED denying and dismissing with prejudice the Second
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Amended Petition for Habeas Corpus (Doc. 10).
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IT IS FURTHER ORDERED denying a Certificate of Appealability in this matter
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as reasonable jurists would not find the Court’s assessment of the claims debatable or
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wrong.
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Dated this 7th day of September, 2016.
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Honorable John J. Tuchi
United States District Judge
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