Rodriguez #073523 v. Ryan et al

Filing 25

ORDER ADOPTING REPORT AND RECOMMENDATION - IT IS ORDERED the Report and Recommendation (Doc. 19 ) is ADOPTED IN FULL. The amended petition for writ of habeas corpus (Doc. 7 ) is DENIED. IT IS FURTHER ORDERED a Certificate of Appealability and lea ve to proceed in forma pauperis on appeal are DENIED because dismissal of the petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable. IT IS FURTHER ORDERED the Motion for Reconsideration (Doc. 22 ) is DENIED. IT IS FURTHER ORDERED the Motion for Duplicate Copy (Doc. 24 ) is GRANTED. The Clerk of Court shall send Petitioner a copy of the Report and Recommendation. (See document for complete details). Signed by Senior Judge Roslyn O Silver on 8/16/18. (SLQ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Joe Rodriguez,
Petitioner,

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ORDER

v.

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No. CV-17-01457-PHX-ROS

Charles L Ryan, et al.,

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Respondents.

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On May 11, 2018, Magistrate Judge Deborah M. Fine issued a Report and

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Recommendation (“R&R”) recommending the petition for writ of habeas corpus be

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denied as untimely. (Doc. 19). Petitioner obtained an extension of time to file his

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objections to the R&R and on June 25, 2018, Petitioner filed his objections. Those

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objections do not establish the petition was timely. Therefore, the R&R will be adopted.

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As outlined in the R&R, Petitioner’s direct appeal concluded in 1991. Petitioner

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then waited approximately twenty-one years to file his Notice of Post-Conviction Relief

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with the Maricopa County Superior Court. The state courts concluded that notice was

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timely but denied relief on the merits. Shortly after the state court proceedings ended,

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Petitioner filed the present federal petition. Respondents argue the petition is untimely by

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approximately twenty years. Respondents are correct.

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The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposed

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a one-year statute of limitations for federal petitions. Because Petitioner was convicted

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prior to the enactment of AEDPA, he had until April 23, 2007, to file his federal petition.

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Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir. 1999). Petitioner did not file his federal

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petition under May 11, 2017, well outside the permissible period.

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Petition filed a document titled “Motion to Reconsideration on: ‘Laches’ Ruling.”

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That document appears to be objections to the R&R and the Court will treat it as such.

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According to Petitioner, the state court found his state post-conviction efforts timely and,

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therefore, his federal petition should be timely as well. (Doc. 22). While it is true the

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state courts did not reject his petition as timely, that is irrelevant to the inquiry regarding

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the federal petition. By the time Petitioner filed his state petition in 2012, the federal

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limitations period had long since expired. And filing the state petition did not restart the

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federal limitations period. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003)

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(federal law “does not permit the reinitiation of the limitations period that has ended

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before the state petition was filed”).

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approximately two decades.

Thus, the federal petition is untimely by

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Petitioner has not argued he is entitled to equitable tolling but a review of the

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record establishes that, even if he had made such an argument, he would not be entitled to

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relief. At the very least, Petitioner was aware of the basis for his present claims as of

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2012 when he filed his state petition but he did not pursue federal relief for four more

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years.

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untimeliness.

In these circumstances, equitable tolling cannot save the petition from

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Finally, on July 12, 2018, Petitioner filed a request for another copy of the R&R.

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According to Petitioner, his copy of the R&R was damaged and he needs another copy so

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that he can “file the objections” to the R&R. The Court will direct the Clerk to send

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Petitioner another copy of the R&R but Petitioner already filed objections which the

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Court has considered. The Court is not required to consider successive and untimely

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objections.

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Accordingly,

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IT IS ORDERED the Report and Recommendation (Doc. 19) is ADOPTED IN

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FULL. The amended petition for writ of habeas corpus (Doc. 7) is DENIED.

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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 dismissal of the petition is justified by

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

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debatable.

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IT IS FURTHER ORDERED the Motion for Reconsideration (Doc. 22) is
DENIED.
IT IS FURTHER ORDERED the Motion for Duplicate Copy (Doc. 24) is

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GRANTED.

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Recommendation.

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The Clerk of Court shall send Petitioner a copy of the Report and

Dated this 16th day of August, 2018.

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Honorable Roslyn O. Silver
Senior United States District Judge

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