McMillan #86625 v. Ryan et al

Filing 14

ORDER ADOPTING 12 REPORT AND RECOMMENDATION in whole and denying and dismissing the Petition for Writ of Habeas Corpus (Doc. 1 ). FURTHER ORDERED denying a Certificate of Appealability and leave to proceed in forma pauperis on appeal, as the dis missal of the Petition is justified by a plain procedural bar and reasonable jurists would not find the procedural ruling debatable and because Petitioner has not made a substantial showing of the denial of a constitutional right. Signed by Judge John J Tuchi on 4/26/16. (EJA)

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NOT FOR PUBLICATION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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Russell J. McMillan,
Petitioner,

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ORDER

v.

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No. CV-15-02440-PHX-JJT

Charles L. Ryan, et al.,

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Respondents.

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At issue is the Report and Recommendation (R&R) submitted by Magistrate Judge

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Bade in this matter (Doc. 12), recommending that the Court dismiss Russell J.

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McMillan’s Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) as

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untimely. Petitioner has filed a Response (Doc. 13). Respondents have waived their

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right to a reply.

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Because Judge Bade’s recitation of facts and the record both in Arizona State

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court and in this Court is so thorough, the Court will not recount this history here. A

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review of the supporting materials supports Judge Bade’s recommendation that the

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Petition is untimely by more than two years. Petitioner had one year after his matter in

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the Arizona State court became final “by the conclusion of direct review or the expiration

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of the time for seeking such review” to file his petition for federal habeas review. 28

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U.S.C. § 2244(d)(1)(A). Finality thus set in on November 29, 2011, when the Arizona

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State trial court had denied relief on his Rule 32 of-right proceeding and he did not seek

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appellate review of that decision within the 35 days thereafter. Section 2244(d)(1)(A)’s

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one-year limit thus expired a year later on November 29, 2012, and Judge Bade correctly

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concluded that no statutory or equitable tolling applied. Petitioner’s subsequently-filed

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second post-conviction petition did not restart the limitation period. He did not file his

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§ 2254 petition until December 1, 2015—two years and two days late.

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Petitioner argues in his Response that AEDPA is unconstitutional, but in so doing

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he ignores the case law Judge Bade sets forth in the R&R to defeat that argument. See

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Green v. White, 223 F.3d 1001, 1003-04 (9th Cir. 2000). He also argues it was error for

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Judge Bade to ignore the merits of his petition and only address the timeliness issue. But

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courts do not reach the merits of a matter where the law instructs them to address

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procedural requirements, including timeliness and statutes of limitation, before reaching

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the merits, and then to dismiss those matters that do not meet procedural thresholds on

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that basis. There is no error in Judge Bade’s approach. The Court adopts it in whole.

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IT IS ORDERED adopting the R&R in whole and denying and dismissing the
Petition for Writ of Habeas Corpus (Doc. 1).

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IT IS FURTHER ORDERED denying a Certificate of Appealability and leave to

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proceed in forma pauperis on appeal, as the dismissal of the Petition is justified by a

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

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

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constitutional right.

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Dated this 26th day of April, 2016.

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Honorable John J. Tuchi
United States District Judge

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