Phillips #222421 v. Ryan et al

Filing 22

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)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Douglas Paul Phillips,
Petitioner,

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ORDER

v.

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No. CV-16-01319-PHX-ROS

Charles L Ryan, et al.,

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Respondents.

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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). Where any party

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has filed timely objections to the R&R, the district court’s review of the part objected to

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must be de novo. Id. If, however, no objections are filed, the district court need not

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conduct such a review. Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz.

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2003).

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Magistrate Judge Deborah M. Fine issued a Report and Recommendation

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(“R&R”) recommending the petition for writ of habeas corpus be denied and dismissed

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as untimely because it was filed years after the one-year statute of limitations expired.

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(Doc. 18 at 1-2.) The R&R applied statutory tolling under 28 U.S.C. § 2244(d)(2) for the

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time a “properly filed application for State post-conviction or other collateral review with

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respect to the pertinent judgment or claim is pending,” and concluded the one-year

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limitation period expired on Monday, November 8, 2010. (Doc. 18 at 5-6.) The R&R

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also found Petitioner failed to establish that equitable tolling applied or that the

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untimeliness may be excused by an equitable exception. (Id. at 6-9.) Here, Petitioner did

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not file his habeas petition until May 3, 2016, over five after the statute of limitations

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expired. (Doc. 1.)

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Petitioner timely objected to the R&R, and he argued that a judge in his

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underlying criminal case should have found his motion to dismiss timely and granted his

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motion in the underlying criminal case. (Doc. 19 at 2.) Petitioner also argued another

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abuse of discretion occurred when a court found that “no prosecutorial misconduct was

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present in the records of [his] first trial.” (Id. at 3) (emphasis omitted). However,

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Petitioner did not object to the R&R’s timeliness analysis, nor did Petitioner establish a

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basis for showing his habeas petition is indeed timely.

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Accordingly,

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IT IS ORDERED the Report and Recommendation (Doc. 18) is ADOPTED and

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the petition for writ of habeas corpus is DENIED with prejudice.

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IT IS FURTHER ORDERED a Certificate of Appealability and leave to proceed

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in forma pauperis on appeal are DENIED because the dismissal of the petition is justified

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by a plain procedural bar and jurists of reason would not find the procedural ruling

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debatable.

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Dated this 3rd day of August, 2017.

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Honorable Roslyn O. Silver
Senior United States District Judge

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