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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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Douglas Paul Phillips, Petitioner, 10 11 ORDER v. 12 No. CV-16-01319-PHX-ROS Charles L Ryan, et al., 13 Respondents. 14 15 A district judge “may accept, reject, or modify, in whole or in part, the findings or 16 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). Where any party 17 has filed timely objections to the R&R, the district court’s review of the part objected to 18 must be de novo. Id. If, however, no objections are filed, the district court need not 19 conduct such a review. Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 20 2003). 21 Magistrate Judge Deborah M. Fine issued a Report and Recommendation 22 (“R&R”) recommending the petition for writ of habeas corpus be denied and dismissed 23 as untimely because it was filed years after the one-year statute of limitations expired. 24 (Doc. 18 at 1-2.) The R&R applied statutory tolling under 28 U.S.C. § 2244(d)(2) for the 25 time a “properly filed application for State post-conviction or other collateral review with 26 respect to the pertinent judgment or claim is pending,” and concluded the one-year 27 limitation period expired on Monday, November 8, 2010. (Doc. 18 at 5-6.) The R&R 28 also found Petitioner failed to establish that equitable tolling applied or that the 1 untimeliness may be excused by an equitable exception. (Id. at 6-9.) Here, Petitioner did 2 not file his habeas petition until May 3, 2016, over five after the statute of limitations 3 expired. (Doc. 1.) 4 Petitioner timely objected to the R&R, and he argued that a judge in his 5 underlying criminal case should have found his motion to dismiss timely and granted his 6 motion in the underlying criminal case. (Doc. 19 at 2.) Petitioner also argued another 7 abuse of discretion occurred when a court found that “no prosecutorial misconduct was 8 present in the records of [his] first trial.” (Id. at 3) (emphasis omitted). However, 9 Petitioner did not object to the R&R’s timeliness analysis, nor did Petitioner establish a 10 basis for showing his habeas petition is indeed timely. 11 Accordingly, 12 IT IS ORDERED the Report and Recommendation (Doc. 18) is ADOPTED and 13 the petition for writ of habeas corpus is DENIED with prejudice. 14 IT IS FURTHER ORDERED a Certificate of Appealability and leave to proceed 15 in forma pauperis on appeal are DENIED because the dismissal of the petition is justified 16 by a plain procedural bar and jurists of reason would not find the procedural ruling 17 debatable. 18 Dated this 3rd day of August, 2017. 19 20 21 Honorable Roslyn O. Silver Senior United States District Judge 22 23 24 25 26 27 28 -2-

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