Lincoln v. Ryan et al

Filing 16

ORDER ADOPTING REPORT AND RECOMMENDATION accepting 15 Report and Recommendation. The Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1 ) is denied and dismissed with prejudice. Pursuant to Rule 11 (a) of the Rules Gover ning 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 could not find the procedural ruling debatable. The Clerk shall terminate this action and enter judgment accordingly. Signed by Judge Diane J Humetewa on 3/16/17. (DXD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Justin Gabriel Lincoln,
Petitioner,

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ORDER

v.

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No. CV-16-01117-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 Bridget S. Bade (Doc. 15). In July 2008,

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Petitioner pleaded guilty in Maricopa County Superior Court to two counts of

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kidnapping, class two felonies and dangerous crimes against children under Arizona law,

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for restraining two children under age 15 during a robbery by putting them on the ground

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and threatening them with a gun. (Doc. 15 at 1-2). Petitioner was sentenced to a total of

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17 years in prison. (Doc. 15 at 2). In the single claim for relief raised in his habeas

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petition, Petitioner contends he is “actually innocent as it pertains to sentencing [because

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the State] failed to prove every element beyond a reasonable doubt necessary to activate

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the sentencing enhancement Petitioner ple[aded] guilty to.” (Doc. 15 at 4) (quoting

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Petitioner’s habeas petition).

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After full consideration of the issues, Judge Bade 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. 15 at 10). Judge Bade 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 filed his second and third petitions for post-conviction relief after the statute of

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limitations period had already expired. (Doc. 15 at 6). Petitioner’s first post-conviction

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relief petition was an “of-right” proceeding under Arizona law, which is the functional

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equivalent of a direct appeal. (Doc. 15 at 5). The trial court denied Petitioner’s of-right

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petition on February 11, 2010. (Id.). Because Petitioner failed to file a timely petition for

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review in the Arizona Court of Appeals, his convictions became final upon expiration of

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the time for doing so, which was March 18, 2010. (Doc. 15 at 5-6). Judge Bade

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therefore determined that the one-year limitations period started to run the next day and

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expired on March 18, 2011. (Doc. 15 at 6). Consequently, the habeas petition, which

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was not filed until April 18, 2016, was more than five years too late.

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Petitioner did not demonstrate he was entitled to equitable tolling or that an equitable

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exception to the limitations period should apply. (Doc. 15 at 6-10). Accordingly, Judge

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Bade recommends that the habeas petition be denied. (Doc. 15 at 10).

Moreover,

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Judge Bade 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. 15 at 10-11)

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(citing United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc)).

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The parties have not filed objections and the time to do so has expired. Absent any

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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.”).

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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 Bade's R&R (Doc. 15) 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 16th day of March, 2017.

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Honorable Diane J. Humetewa
United States District Judge

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