Tom v. Ryan et al

Filing 12

ORDER adopting in whole the R&R issued by Judge Willett 11 and denying and dismissing as untimely the Petition under 28 U.S.C. 2254 for a Writ of Habeas Corpus 1 . IT IS FURTHER ORDERED denying a certificate of appealability and leave to proceed on appeal in forma pauperis. Dismissal of this action is justified by a plain procedural bar. Signed by Judge John J Tuchi on 6/24/2019. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Royston Joe Tom,
Petitioner,

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ORDER

v.

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No. CV-17-02731-PHX-JJT (ESW)

Charles Ryan, et al.,

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Respondents.

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At issue is the Report and Recommendation (“R&R”) (Doc. 11) submitted by

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United States Magistrate Judge Eileen S. Willett recommending that the Court deny and

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dismiss the Petition under 28 U.S.C. 2254 for a Writ of Habeas Corpus (Doc. 1) as

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untimely. Petitioner had fourteen days from the entry of the R&R to file any objections

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thereto. He filed none and the time to do so elapsed more than ten months ago. The Court

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therefore may accept the R&R and its recommendations without further review. United

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States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). The Court nonetheless

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reviewed the petition on its merits, and in doing so, confirms that Judge Willett’s analysis

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and conclusions are correct.

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Petitioner’s conviction became final for purposes of habeas review June 1, 2016.

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Thereafter he had one year, or until June 1, 2017, to file a petition. He did not file his

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Petition until August 11, 2017—six weeks late. Petitioner failed to satisfy the requirements

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of equitable tolling and did not raise allegations of actual innocence for purposes of Schlup

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gateway analysis. His Petition is therefore untimely without cognizable excuse.

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....

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IT IS ORDERED adopting in whole the R&R issued by Judge Willett (Doc. 11) and

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denying and dismissing as untimely the Petition under 28 U.S.C. 2254 for a Writ of Habeas

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Corpus (Doc. 1).

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IT IS FURTHER ORDERED denying a certificate of appealability and leave to

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proceed on appeal in forma pauperis. Dismissal of this action is justified by a plain

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procedural bar.

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Dated this 24th day of June, 2019.

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Honorable John J. Tuchi
United States District Judge

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