Plasko v. Arizona, State of

Filing 16

ORDER - IT IS ORDERED adopting in whole the R&R (Doc. 15 ) in this matter. IT IS FURTHER ORDERED dismissing as untimely the Amended Petition (Doc. 5 ). The Clerk of Court shall close this matter. IT IS FURTHER ORDERED denying a Certificate of Appe alability and leave to proceed in forma pauperis in this matter, as the Court finds that dismissal is justified by a plain procedural bar and reasonable jurists would not find the procedural ruling debatable. See document for complete details. Signed by Judge John J Tuchi on 07/16/2021. (MHW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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John Plasko,

No. CV-21-00176-PHX-JJT (ESW)
Plaintiff,

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v.

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ORDER

State of Arizona, et al.,

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Defendants.

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At issue is the Report and Recommendation (Doc. 15, “R&R”) submitted by United

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States Magistrate Judge John Z. Boyle recommending the Court dismiss as untimely the

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Amended Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus (Doc. 5). Judge

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Boyle advised the parties they had 14 days after service of the R&R to file any objections

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thereto, and warned that “[f]ailure to timely file objections to the R&R may result in

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acceptance of the Report and Recommendation by the District Court without further

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review” pursuant to United States v. Reyna-Tapia, 328 F. 3d 1114, 1121 9th Cir. 2003).

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The time to file objections has long passed and Petitioner filed none. The Court therefore

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may accept the R&R and its underlying analysis.

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Even upon an independent review of the R&R, the Court concludes it is correctly

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decided. Petitioner’s state conviction became final for purposes of habeas review on

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May 10, 2018, thirty days after the state trial court dismissed Petitioner’s PCR proceeding.

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AEDPA’s one-year limitations period for seeking habeas review began running the

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following day, and expired May 11, 2019. The Petition in this matter, filed November 20,

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2020, was therefore over 18 months late, and no statutory or equitable tolling is supported

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by any evidence. Petitioner also does not qualify for the “miscarriage of justice” exception,

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as he has made no showing of “new reliable evidence of actual innocence” as required

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under Schlup v. Delo, 513 U.S. 298, 324 (1995).

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IT IS ORDERED adopting in whole the R&R (Doc. 15) in this matter.

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IT IS FURTHER ORDERED dismissing as untimely the Amended Petition

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(Doc. 5). The Clerk of Court shall 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 in this matter, as the Court finds that dismissal is justified by a

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plain procedural bar and reasonable jurists would not find the procedural ruling debatable.

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Dated this 16th day of July, 2021.

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Honorable John J. Tuchi
United States District Judge

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