Celentano v. Ryan et al

Filing 20

ORDER - Judge James F. Metcalf's R&R (Doc. 16 ) is accepted. The petition for writ of habeas corpus (Doc. 1 ) is dismissed with prejudice. A certificate of appealability and leave to proceed in forma pauperis on appeal are denied. The Clerk is directed to terminate this action. Signed by Judge David G Campbell on 03/12/2018. (KAS)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Zachariah William Celentano, Petitioner, 9 10 ORDER v. 11 No. CV-17-01073-PHX-DGC Charles L Ryan, et al., 12 Respondents. 13 14 15 Petitioner Zachariah William Celentano was convicted of armed robbery in 16 Arizona state court on January 15, 2015. Doc. 16 at 1. Petitioner filed a pro se petition 17 for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on April 10, 2017. Doc. 1. 18 Respondents filed a response (Doc. 13), and Petitioner filed a reply (Doc. 15). Magistrate 19 Judge James F. Metcalf issued a report and recommendation (“R&R”) that the petition be 20 denied as untimely filed. Doc. 16. Petitioner filed objections to the R&R (Doc. 17) and 21 Respondents replied (Doc. 18). The Court will deny the objections and adopt Judge 22 Metcalf’s recommendation. 23 The Court “may accept, reject, or modify, in whole or in part, the findings or 24 recommendations made by the magistrate judge” in a habeas case. 28 U.S.C. 25 § 636(b)(1). The Court must undertake de novo review of those portions of the R&R to 26 which specific objections are made. Thomas v. Arn, 474 U.S. 140, 149 (1985); United 27 States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); see also 28 U.S.C. 28 § 636(b)(1); Fed. R. Civ. P. 72(b)(3). The portions of the R&R to which Petitioner does 1 not specifically object will be adopted without further discussion. See id. The Court will 2 not review generalized objections, nor undertake a global reevaluation of the merits of 3 Petitioner’s grounds for relief. See Reyna-Tapia, 328 F.3d at 1121; Warling v. Ryan, No. 4 CV 12-01396-PHX-DGC, 2013 WL 5276367, at *2 (D. Ariz. Sept. 19, 2013). 5 The R&R concludes that the Petition is untimely because Petitioner filed it after 6 the one-year statute of limitations had expired. Doc. 16 at 4-7. Petitioner’s objections 7 make various arguments about the merits of his habeas claims, but make no specific 8 objection to Judge Metcalf’s finding on the timeliness of the petition. See Doc. 17. The 9 only comment Petitioner makes with respect to Judge Metcalf’s timeliness decision is 10 that Petitioner should be given the benefit of the doubt. Id. at 3. Because Petitioner has 11 not made any specific objections to the R&R, the Court will adopt it.1 12 IT IS ORDERED: 13 1. Judge James F. Metcalf’s R&R (Doc. 16) is accepted. 14 2. The petition for writ of habeas corpus (Doc. 1) is dismissed with 15 16 prejudice. 3. 17 18 A certificate of appealability and leave to proceed in forma pauperis on appeal are denied. 4. 19 The Clerk is directed to terminate this action. Dated this 12th day of March, 2018. 20 21 22 23 24 1 25 26 27 28 Although Petitioner does not raise this issue, the Court notes that the R&R appears to include an inconsequential mathematical error. The R&R notes that the oneyear statute of limitations began to run on the date Petitioner’s judgment became final. Doc. 16 at 4. Under Arizona rules, this occurred on April 15, 2015, when Petitioner’s opportunity to seek an “of right” post-conviction proceeding expired. Id. Petitioner therefore needed to file this Petition before April 15, 2016. The R&R mistakenly suggests that the limitations period expired on January 15, 2016. Id. at 5. But this apparent error is immaterial. Petitioner filed his petition on April 10, 2017, well after the possible one-year anniversaries in January and April 2016. -2-

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