Phillips #222421 v. Ryan et al
ORDER ADOPTING REPORT AND RECOMMENDATION re: 18 Report and Recommendation. The petition for writ of habeas corpus is DENIED with prejudice. A Certificate 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 jurists of reason would not find the procedural ruling debatable. Signed by Senior Judge Roslyn O Silver on 8/3/17. (DXD)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Douglas Paul Phillips,
Charles L Ryan, et al.,
A district judge “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). Where any party
has filed timely objections to the R&R, the district court’s review of the part objected to
must be de novo. Id. If, however, no objections are filed, the district court need not
conduct such a review. Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz.
Magistrate Judge Deborah M. Fine issued a Report and Recommendation
(“R&R”) recommending the petition for writ of habeas corpus be denied and dismissed
as untimely because it was filed years after the one-year statute of limitations expired.
(Doc. 18 at 1-2.) The R&R applied statutory tolling under 28 U.S.C. § 2244(d)(2) for the
time a “properly filed application for State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending,” and concluded the one-year
limitation period expired on Monday, November 8, 2010. (Doc. 18 at 5-6.) The R&R
also found Petitioner failed to establish that equitable tolling applied or that the
untimeliness may be excused by an equitable exception. (Id. at 6-9.) Here, Petitioner did
not file his habeas petition until May 3, 2016, over five after the statute of limitations
expired. (Doc. 1.)
Petitioner timely objected to the R&R, and he argued that a judge in his
underlying criminal case should have found his motion to dismiss timely and granted his
motion in the underlying criminal case. (Doc. 19 at 2.) Petitioner also argued another
abuse of discretion occurred when a court found that “no prosecutorial misconduct was
present in the records of [his] first trial.” (Id. at 3) (emphasis omitted). However,
Petitioner did not object to the R&R’s timeliness analysis, nor did Petitioner establish a
basis for showing his habeas petition is indeed timely.
IT IS ORDERED the Report and Recommendation (Doc. 18) is ADOPTED and
the petition for writ of habeas corpus is DENIED with prejudice.
IT IS FURTHER ORDERED a Certificate 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 jurists of reason would not find the procedural ruling
Dated this 3rd day of August, 2017.
Honorable Roslyn O. Silver
Senior United States District Judge
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