Harrison #196233 v. Ryan et al
Filing
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ORDER Accepting 13 Magistrate Judge Willett's Report and Recommendation as the Order of this Court. The Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1 ) is denied and dismissed with prejudice. ORDERED that purs uant to Rule 11(a) of the Rules Governing Section 2254 Cases, a Certificate 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 jurists of reason would not find the procedural ruling debatable. The Clerk of Court shall terminate this action and enter judgment accordingly. Signed by Judge Diane J Humetewa on 6/5/17. (EJA)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Justin Alexander Harrison,
Petitioner,
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ORDER
v.
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No. CV-16-00481-PHX-DJH
Charles L. Ryan, et al.,
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Respondents.
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This matter is before the Court on Petitioner’s Petition for Writ of Habeas Corpus
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pursuant to 28 U.S.C. § 2254 (Doc. 1) and the Report and Recommendation (“R&R”)
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issued by United States Magistrate Judge Eileen S. Willett (Doc. 13). In May 2005,
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Petitioner pled guilty in Maricopa County Superior Court to first degree murder, a class 1
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dangerous felony under Arizona law. (Doc. 13 at 2). Pursuant to a stipulation in the plea
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agreement, Petitioner was sentenced to natural life in prison. (Doc. 13 at 2).
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Petitioner raises three claims in his federal habeas petition. First, he asserts that he
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was not given a bond hearing and that his bail amount of three million dollars was
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excessive and in violation of the Eighth Amendment. (Doc. 1 at 6). Second, Petitioner
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alleges he was shackled during every court hearing, including the sentencing hearing, in
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violation of the Due Process Clause. (Doc. 1 at 7). Third, Petitioner contends that the
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trial court should not have accepted his guilty plea in light of his mental health history.
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(Doc. 1 at 8).
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After full consideration of the issues, Judge Willett concluded that Petitioner's
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claims are time-barred because he failed to file the habeas petition within the one-year
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statute of limitations period. (Doc. 13 at 1). Judge Willett determined that statutory
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tolling based on post-conviction relief proceedings in state court did not apply because
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Petitioner did not file a subsequent post-conviction petition after the conclusion of his
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“of-right” petition for post-conviction relief, which is the functional equivalent of a direct
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appeal. (Doc. 13 at 3-6). The trial court denied Petitioner’s of-right petition on July 10,
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2006. (Doc. 13 at 4). Because Petitioner failed to file a timely petition for review in the
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Arizona Court of Appeals, his convictions became final upon expiration of the time for
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doing so, which was August 14, 2006.
(Doc. 13 at 5).
Judge Willett therefore
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determined that the one-year limitations period started to run the next day and expired on
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August 14, 2007. (Doc. 13 at 5). Consequently, the habeas petition, which was not filed
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until February 22, 2016, was more than eight years too late. Moreover, Petitioner did not
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demonstrate he was entitled to equitable tolling or that an equitable exception to the
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limitations period should apply. (Doc. 13 at 6). Accordingly, Judge Willett recommends
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that the habeas petition be denied and dismissed with prejudice. (Doc. 13 at 7).
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Judge Willett advised the parties that they had fourteen days to file objections and
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that the failure to file timely objections "may result in the acceptance of the Report and
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Recommendation by the District Court without further review." (Doc. 13 at 7) (citing
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United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc)). The
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parties have not filed objections and the time to do so has expired.
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objections, the Court is not required to review the findings and recommendations in the
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R&R. See Thomas v. Arn, 474 U.S. 140, 149 (1989) (The relevant provision of the
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Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C), “does not on its face require any
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review at all . . . of any issue that is not the subject of an objection.”); Reyna-Tapia, 328
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F.3d at 1121 (same); Fed.R.Civ.P. 72(b)(3) (“The district judge must determine de novo
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any part of the magistrate judge’s disposition that has been properly objected to.”).
Absent any
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Nonetheless, the Court has reviewed the R&R and agrees with its findings and
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recommendations. The Court will, therefore, accept the R&R and deny the habeas
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petition. See 28 U.S.C. § 636(b)(1)(C) (“A judge of the court may accept, reject, or
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modify, in whole or in part, the findings or recommendations made by the magistrate
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judge.”); Fed.R.Civ.P. 72(b)(3) (same).
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Accordingly,
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IT IS ORDERED that Magistrate Judge Willett's R&R (Doc. 13) is accepted and
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adopted as the order of this Court.
IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 (Doc. 1) is denied and dismissed with prejudice.
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IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing
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Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis
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on appeal are denied because dismissal of the Petition is justified by a plain procedural
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bar and jurists of reason would not find the procedural ruling debatable.
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IT IS FURTHER ORDERED that the Clerk of Court shall terminate this action
and enter judgment accordingly.
Dated this 5th day of June, 2017.
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Honorable Diane J. Humetewa
United States District Judge
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