Holland v. Ryan et al

Filing 14

ORDER - IT IS ORDERED adopting in whole the R&R submitted by Magistrate Judge John Z. Boyle. (Doc. 13 .) IT IS FURTHER ORDERED denying and dismissing as untimely the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1 .) The Clerk of Court shall enter judgment accordingly and close this matter. IT IS FURTHER ORDERED denying a Certificate of Appealability and leave to proceed in forma pauperis on appeal. Dismissal of the Petition at issue is justified by a plain procedural bar. Petitioner has made no showing of the denial of a constitutional right. (See document for further details). Signed by Judge John J Tuchi on 10/8/19. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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James Robert Holland,
Petitioner,

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ORDER

v.

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No. CV-18-04543-PHX-JJT (JZB)

Charles L. Ryan, et al.,

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Respondents.

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At issue is the Report and Recommendation (“R&R”) (Doc. 13) submitted by

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United States Magistrate Judge John Z. Boyle on September 4, 2019, recommending that

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the Court deny and dismiss with prejudice James Robert Holland’s Petition for Writ of

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Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) As Judge Boyle warned Petitioner

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in the R&R, Petitioner had fourteen days from the date of service—also September 4,

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2019—in which to file any objections thereto. Objections therefore were due no later than

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September 16, 2019. It has now been over three weeks since that due date and Petitioner

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has filed nothing. The Court thus may accept the R&R without further review, as Judge

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Boyle also advised Petitioner. (Doc. 13 at 5.) United States v. Reyna-Tapia, 328 F.3d 1114,

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1121 (9th Cir. 2003). Nonetheless, the Court has independently reviewed the R&R, the

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underlying timeline and procedural history, and Judge Boyle’s conclusions and legal

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reasoning. Upon that review the Court concludes Judge Boyle’s recommendation and its

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underlying analysis is correct.

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....

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Petitioner was sentenced in the underlying state criminal matters on October 2,

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2014, after pleading guilty in both cases. He did not appeal the sentences, and he did not

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file an of-right notice for post-conviction relief (“PCR”) within 90 days, as required by

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Ariz. R. Crim. P. 32.4(a)(2)(C). His time to do so ran on December 31, 2014, and his

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convictions became final for purposes of filing for the instant relief under AEDPA on that

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date. Thereafter he had one year, or until January 1, 2016, to file for habeas relief. He did

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not so file until nearly three years after that deadline, on December 6, 2018.

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Petitioner makes no colorable arguments for either statutory tolling nor equitable

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tolling. His claims therefore are untimely without excuse or exception. The Court must

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dismiss them as such.
IT IS ORDERED adopting in whole the R&R submitted by Magistrate Judge John
Z. Boyle. (Doc. 13.)

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IT IS FURTHER ORDERED denying and dismissing as untimely the Petition for

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Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) The Clerk of Court shall

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enter judgment accordingly and close this matter.

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

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proceed in forma pauperis on appeal. Dismissal of the Petition at issue is justified by a

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plain procedural bar. Petitioner has made no showing of the denial of a constitutional right.

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Dated this 8th day of October, 2019.

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Honorable John J. Tuchi
United States District Judge

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