Chavez-Duarte v. Ryan et al
ORDER adopting Report and Recommendations re 11 Report and Recommendation. The Objections (Doc. 12 ) are overruled. The Petition is denied and dismissed because it is barred by the statute of limitations and the Clerk shall enter judgment accordi ngly. Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, in the event Petitioner files an appeal, the Court denies issuance of a certificate of appealability because dismissal of the petition is based on a plain procedural bar and jurists of reason would not find this Court's procedural ruling debatable. Signed by Senior Judge James A Teilborg on 1/30/17.(DXD)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Charles Ryan, et al.,
Pending before this Court is Petitioner’s Petition for Writ of Habeas Corpus. On
December 9, 2016, the Magistrate Judge to whom this case was assigned issued a Report
and Recommendation (R&R) recommending that this Court deny and dismiss the Petition
because it is barred by the statute of limitations. Petitioner filed objections to the R&R.
This Court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that
the district judge must review the magistrate judge’s findings and recommendations de
novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d
1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263
F.Supp.2d 1219, 1226 (D.Ariz. 2003) (“Following Reyna-Tapia, this Court concludes
that de novo review of factual and legal issues is required if objections are made, ‘but not
otherwise.’”); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d
1027, 1032 (9th Cir. 2009) (the district court “must review de novo the portions of the
[Magistrate Judge’s] recommendations to which the parties object.”). District courts are
not required to conduct “any review at all . . . of any issue that is not the subject of an
objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28
U.S.C. § 636(b)(1) (“the court shall make a de novo determination of those portions of
the [report and recommendation] to which objection is made.”).
The R&R concludes that, after all statutory tolling, Petitioner’s conviction became
final on May 1, 2004; thus the one year statute of limitations expired on May 1, 2005.
Doc. 11 at 4. The R&R then notes that the Petition in this case was filed on April 19,
2016, almost 11 years late. Id. at 4-5. Finally, the R&R concludes that Petitioner is not
entitled to equitable tolling. Id. at 5-6.
Petitioner filed objections to the R&R. Doc. 12. Petitioner does not make any
argument in his objections that would show his due diligence or the extraordinary
circumstances necessary to obtain equitable tolling. Id. Accordingly, reviewing the
R&R de novo, the Court adopts the conclusion that the Petition in this case is barred by
the statute of limitations.
IT IS ORDERED that the Report and Recommendation (Doc. 11) is accepted and
adopted. The objections (Doc. 12) are overruled. The Petition is denied and dismissed
because it is barred by the statute of limitations and the Clerk of the Court shall enter
IT IS FURTHER ORDERED that pursuant to Rule 11 of the Rules Governing
Section 2254 Cases, in the event Petitioner files an appeal, the Court denies issuance of a
certificate of appealability because dismissal of the petition is based on a plain procedural
bar and jurists of reason would not find this Court’s procedural ruling debatable. See
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Dated this 30th day of January, 2017.
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