Velasquez #173685 v. Ryan

Filing 41

ORDER ADOPTING 38 Magistrate Judge's Report and Recommendation. The Petitioner's Objections (Doc. 39 ) are overruled. The Amended Petition for Writ of Habeas Corpus (Doc. 12 ) is denied and this action is dismissed with prejudice. A C ertificate of Appealability and leave to proceed in forma pauperis on appeal are denied because the dismissal of the Petition is justified by a plain procedural bar and reasonable jurists would not find the ruling debatable. The Clerk shall terminate this action. Signed by Judge Steven P Logan on 10/31/17. (LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Michael Rene Velasquez,

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Petitioner,
v.

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Charles L. Ryan, et al.,
Respondents.

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No. CV-16-01278-PHX-SPL
ORDER

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The Court has before it Petitioner’s Amended Petition for Writ of Habeas Corpus

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pursuant to 28 U.S.C. § 2254 (Doc. 12), and Respondents’ Answer. (Doc. 35.) We also

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have before us the Report and Recommendation (R&R) of United States Magistrate

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Judge John Z. Boyle (Doc. 38), recommending denial of the Petition, Petitioner’s

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Objections (Doc. 39), and the Respondents’ Response to the Petitioner’s Objections to

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the Report and Recommendation. (Doc. 40.) Upon review of the R&R and the parties’

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submissions, the Court will adopt in whole Judge Boyle’s recommendations and the

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underlying reasoning.

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The Petitioner raises 2 grounds for relief in his Petition for Writ of Habeas Corpus.

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In Ground 1, the Petitioner argues ineffective assistance of counsel because he believes

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he was coerced by detectives to admit guilt. (Doc. 12.) In Ground 2, the Petitioner argues

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mitigating circumstances and that he filed a timely notice of post-conviction relief. (Id.)

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Judge Boyle concluded the Petitioner’s claims are untimely. (Doc. 38 at 1-8.)

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Additionally, the magistrate judge further concluded that the Petitioner did not exercise

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“reasonable diligence” by waiting an additional 30 months after he received notice to

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resend the PCR notice. (Id.)

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In his Objections to the Report and Recommendation, Petitioner has failed to point

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out specific objections to Judge Boyle’s findings and recommendations in the R&R.

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(Doc. 39 at 1-3.) The Petitioner has repeated the same arguments from his initial Habeas

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Petition. (Doc. 12.)

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A district judge “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). When a party files

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a timely objection to an R&R, the district judge reviews de novo those portions of the

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R&R that have been “properly objected to.” Fed. R. Civ. P. 72(b). A proper objection

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requires specific written objections to the findings and recommendations in the R&R. See

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United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); 28 U.S.C. §

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636(b)(1). It follows that the Court need not conduct any review of portions to which no

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specific objection has been made. See Reyna-Tapia, 328 F.3d at 1121; see also Thomas v.

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Arn, 474 U.S. 140, 149 (1985) (discussing the inherent purpose of limited review is

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judicial economy). Further, a party is not entitled as of right to de novo review of

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evidence or arguments which are raised for the first time in an objection to the R&R, and

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the Court’s decision to consider them is discretionary. United States v. Howell, 231 F.3d

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615, 621-622 (9th Cir. 2000).

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The Court has nonetheless undertaken an extensive review of the sufficiently

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developed record and the deficient objections to the findings and recommendations in the

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very detailed R&R, without the need for an evidentiary hearing. After conducting a de

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novo review of the issues and objections, the Court reaches the same conclusions reached

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by Judge Boyle. Specifically, the Court finds the Petitioner was sentenced years prior to

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the filing of his Petition and no grounds exist that would entitle the Petitioner to equitable

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tolling. (Doc. 35-1, Ex. F, G, J, M, O, and W.) Additionally, the Court finds the claims

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of the Petitioner are untimely and that no extraordinary circumstances prevented him

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from filing his claims. Furthermore, the Court finds he is not entitled to equitable tolling.
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Having carefully reviewed the record, the Petitioner has not shown that he is

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entitled to habeas relief. Finding none of Petitioner’s objections have merit, the R&R

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will be adopted in full. Accordingly,

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IT IS ORDERED:

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1.

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That the Magistrate Judge’s Report and Recommendation (Doc. 38) is

accepted and adopted by the Court;

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2.

That the Petitioner’s Objections (Doc. 39) are overruled;

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3.

That the Amended Petition for Writ of Habeas Corpus (Doc. 12) is denied

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and this action is dismissed with prejudice;
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That a Certificate of Appealability and leave to proceed in forma pauperis

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on appeal are denied because the dismissal of the Petition is justified by a plain

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

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That the Clerk of Court shall terminate this action.

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Dated this 31st day of October, 2017.

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Honorable Steven P. Logan
United States District Judge

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