Taylor #312941v. Shinn et al
Filing
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ORDER ADOPTING REPORT AND RECOMMENDATION. Petitioner's Objections to the R&R (Docs. 104 & 105 ) are OVERRULED. The R&R (Doc. 86 ) is ACCEPTED. Petitioner's Amended Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 22 54 (Docs. 58 & 59 ) is DISMISSED with prejudice. A Certificate of Appealability and leave to proceed in forma pauperis on appeal are DENIED because the dismissal of the Petition is justified by a plain procedural bar; jurists of reason would not f ind the procedural ruling debatable; and Petitioner has not made a substantial showing of the denial of a constitutional right. The Clerk of the Court shall enter judgment DENYING and DISMISSING Petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Docs. 58 & 59 ) with prejudice and shall terminate this action. Signed by Senior Judge Douglas L Rayes on 10/28/2024. (KJ)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Cameron Leezell Taylor,
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Petitioner,
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v.
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David Shinn, et al.,
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No. CV-21-01300-PHX-DLR
ORDER
Respondents.
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Before the Court is the Report and Recommendation (“R&R”) of Magistrate Judge
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Michael T. Morrissey (Doc. 86) regarding Petitioner’s Amended Petition for Writ of
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Habeas Corpus (“Petition”) filed pursuant to 28 U.S.C. § 2254 (Docs. 58, 59). The R&R
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found that the Petition is untimely; Petitioner is not entitled to equitable tolling; and
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Petitioner has failed to demonstrate actual innocence. The R&R recommends that the
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motion to stay and the Petition be denied and dismissed with prejudice. (Doc. 86 at 14.)
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I.
Background
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The Magistrate Judge advised the parties that they had fourteen days from the date
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of service of a copy of the R&R to file specific written objections with the Court. (Id. at
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14.) Rather than filing objections to the R&R, Petitioner filed a “Motion for Leave to
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Extend the Page Limit for Objection to Report and Recommendation” (Doc. 96), a “Motion
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for Objection to Magistrate Judge’s Report and Recommendation Dated January 19th,
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2024” (Doc. 104), an “Affidavit in Support of Motion for Objection to Magistrate Judge’s
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Report and Recommendation Dated January 19th, 2024” (Doc. 98), and a “Memorandum
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in Support of Motion for Objection to Magistrate Judge’s Report and Recommendation
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Dated January 19th, 2024” (Doc. 105).
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II.
Discussion
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The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) has a
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one-year statute of limitations which begins to run “from the latest of . . . the date on which
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the judgment became final by the conclusion of direct review or the expiration of the time
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for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). The one-year statute of limitations
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is tolled for the period “during which a properly filed application for State post-conviction
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or other collateral review . . . is pending.” Id. § 2244(d)(2).
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The Arizona Court of Appeals confirmed Petitioner’s conviction on August 29,
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2017, and the Arizona Supreme Court denied his petition for review on July 3, 2018. (Doc.
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63-2 at 82, 92.) Before his direct appeal was concluded, Petitioner timely filed a notice of
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state post-conviction relief (“PCR”). (Doc. 63-2 at 88.) On October 10, 2019, the trial court
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denied Petitioner’s PCR petition, finding it presented no colorable claim for relief. (Doc.
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63-3 at 35.) Following that denial, there were only two ways Petitioner could continue to
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avail himself of the statutory tolling that came with the “properly filed” PCR application.
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He could have filed either (1) a timely motion for reconsideration or (2) a timely petition
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for review of the denial of the PCR with the Arizona Court of Appeals. See Pace v.
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DiGuglielmo, 544 U.S. 408, 410 (2005). He did neither. Therefore, the AEDPA one-year
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statute of limitations began to run on October 11, 2019, the day after the state court denied
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his PCR.
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Following the denial of his PCR petition, Petitioner made several untimely and/or
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improper filings in both the state trial court and court of appeals. (Doc. 63-3 at 50, 120,
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126.) They were all either dismissed or denied. (Doc. 63-3 at 104, 124, 132.) None of these
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improper filings revived or reset the statutory tolling of the AEDPA statute of limitations.
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a. Equitable Tolling Objection
Petitioner contends that Judge Morrissey erred by failing to find that Petitioner is
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entitled to equitable tolling. (Doc. 104 at 3.) Petitioner asserts that he was prevented from
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timely filing by the extraordinary circumstances of his attorney’s malfeasance and that he
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diligently pursued his post-conviction remedies. (Id. at 8.) To obtain equitable tolling of
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AEDPA’s one-year filing deadline, Petitioner must show that “(1) some ‘extraordinary
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circumstance’ prevented him from filing on time, and (2) he has diligently pursued his
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rights.” Luna v. Kernan, 784 F.3d 640, 646 (9th Cir. 2015) (quoting Holland v. Florida,
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560 U.S. 631, 649 (2010)). The threshold for equitable tolling is exceedingly high. Miranda
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v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002). A petitioner must show that “the
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extraordinary circumstances were the cause of his untimeliness and that the extraordinary
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circumstances made it impossible to file a petition on time.” Porter v. Ollison, 620 F.3d
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952, 959 (9th Cir. 2010) (citation omitted).
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Petitioner’s counsel appears to have missed several state court deadlines, but
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Petitioner has not pointed to a specific instance of his counsels’ conduct that rises to the
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level of “abandonment.” Attorney negligence in calculating a filing deadline is not a basis
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for equitable tolling. Maples v. Thomas, 565 U.S. 266, 282 (2012). He also points to his
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efforts in hiring attorneys and paying their retainers as proof of his diligence. (Doc. 104 at
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3.) Specifically, Petitioner alleges that he hired and paid an $18,500 retainer fee to attorney
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Robert Dossey and that Dossey abandoned him. (Id. at 8–9.) He then tried to fix the
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problem by hiring a second attorney, Todd Nolan, but Dossey clung to Petitioner’s file,
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refusing to turn it over or otherwise cooperate with Nolan. (Id. at 9.) Dossey finally turned
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the file over to Nolan in March of 2022. (Id.) But amid this back and forth, and after
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Petitioner had already paid Nolan $35,000, Nolan passed away. (Doc. 111 at 7–8.)
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Petitioner alleges that he then hired a third lawyer and paid him $40,000 to file a habeas
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corpus petition. (Id. at 8.)
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However, despite the drama with his attorneys, and despite that Dossey’s lack of
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cooperation was ostensibly the reason for his untimeliness, Petitioner nonetheless managed
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to file a pro se habeas petition long before Dossey turned over the file in March 2022. (See
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Doc. 1.) When Petitioner filed his federal habeas case, he did not have access to Dossey’s
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file. The history of Petitioner’s case and his previous pleadings indicate that he missed the
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deadline because he miscalculated it.
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Petitioner signed his pro se habeas petition and turned it over to prison officials on
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July 26, 2021, five days before the date Petitioner apparently understood the AEDPA
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statute of limitations to run. (See id.) Nowhere in his petition did Petitioner complain that
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his filing was delayed by his attorney. (See id.) Quite the opposite: Petitioner indicated in
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his petition that the deadline to file was one year from the state appellate court’s dismissal
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of his PCR petition. (Id. at 19.) He represented that his petition was filed in accordance
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with that deadline. (Id.)
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In his reply, Petitioner argued that the statute of limitations did not expire until July
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31, 2021 because he believed that the statute did not begin to run until July 31, 2020, one
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year after the thirty-day period during which a petition to review the court of appeals
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dismissal could have been filed with the Arizona Supreme Court. (Doc. 68 at 2–3.) He was
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mistaken, and that mistake threw off his calculations of the last day to file. It was this
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miscalculation—not his attorneys’ conduct—that led to the untimely filing.
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Petitioner also argues that he could not have known of the correct deadline because
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he was not made aware that the Arizona Court of Appeals denied his petition for review
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until he retained Nolan in March of 2022. However, his original habeas petition cites the
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case number of the petition for review, CR-20-0294. (Doc. 1 at 5.) The only document with
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that case number was the order dated June 1, 2020, dismissing the petition for review.
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Petitioner was thus aware of the dismissal long before he retained Nolan.
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Even if Petitioner was not aware of the dismissal, with due diligence he could have
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been. When Dossey was not communicating, Petitioner knew that his PCR appeal was
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pending. But Petitioner sat idle, never accessing the court website, making a phone call, or
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writing a letter to the court to check on the status of his appeal. Had Petitioner acted with
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reasonable diligence and made inquiry at the court to determine the status of his case within
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a reasonable period, he would have had ample time to file his habeas petition. See Smith v.
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Davis, 953 F.3d 582, 591–92 (9th Cir. 2020).
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Petitioner’s objections to the R&R’s finding that he is not entitled to equitable
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tolling are overruled. His miscalculation of the tolling of his state-court PCR proceeding is
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not an extraordinary circumstance, Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1013 (9th
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Cir. 2009), even if it was based on the negligent conduct of his attorney. Lee v. Thornell,
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104 F.4th 120, 131 (9th Cir. 2024) (holding that an attorney’s negligent conduct does not
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constitute abandonment). And Petitioner failed to diligently pursue his rights. Under these
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circumstances, it was not diligent for Petitioner to sit idly by and not check on the status of
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his case until after the limitations period had expired. Petitioner has not shown that he was
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abandoned by his attorney; that his attorneys’ performance was an extraordinary
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circumstance; or that he was prevented from filing on time.
b. Actual Innocence Objection
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Petitioner also objects to the R&R’s finding that he failed to establish his actual
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innocence claim. (Doc. 86 at 12.) Judge Morrissey found that Petitioner failed to present
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new, reliable evidence of actual innocence needed to pass through the Schlup v. Delo
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gateway. 513 U.S. 298, 327 (2013). To clear the hurdles set out in Schlup, the petitioner
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must establish his factual innocence of the crime. Id. “To be credible, such a claim requires
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petitioner to support his allegation of constitutional error with new reliable evidence—
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whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
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physical evidence.” Id. at 324.
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Petitioner’s objection does not provide new reliable evidence. Instead, he re-litigates
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the propriety of a second trial which he asserts was purposely set up by the prosecutors
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who “goaded” him into requesting a mistrial. (Doc. 104 at 10.) His objection amounts to
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argument about the sufficiency of the evidence and not actual innocence. Actual innocence
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means “factual innocence, not mere legal insufficiency.” Pacheco v. Habti, 62 F.4th 1233,
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1243 (10th Cir. 2023) (citation omitted). A double jeopardy claim, like Petitioner is making
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here, is a claim of legal insufficiency and not actual innocence. Selsor v. Kaiser, 22 F.3d
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1029, 1036 (10th Cir. 1994).
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Petitioner also claims additional “new evidence” in the form of new ballistics
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indicating that the murder victim was killed with a projectile consistent with a .30 caliber
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weapon. (Doc. 111 at 3.) His weapon was a 9mm handgun. (Id.) However, Petitioner was
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tried on alternative theories, including accomplice liability. Petitioner’s “new evidence”
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does not rule out a possibility that his accomplice fired the weapon that killed the victim.
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His accomplice could have fired the murder weapon, and Petitioner still would have been
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guilty of crime of conviction. This evidence does not show that he was actually innocent
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as an accomplice. See Taylor v. Powell, 7 F.4th 920, 935–38. (10th Cir. 2021). Petitioner’s
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objections to R&R’s recommendation denying his actual innocence claim are overruled.
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c. Remaining Objections
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The Court finds the remainder of Petitioner’s objections are either frivolous or
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general and not specific objections. The Court will not address every general objection
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raised in Petitioner’s fifty-page memorandum.
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The fact that Petitioner is confined in a correctional facility in Eloy and not in
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Arizona State Prison Complex-Eyman, as mistakenly stated in the R&R, has no legal
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relevance to any issue in this matter. (Doc. 104 at 3.) His objection to the R&R’s
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recommendation that the “Motion to Stay and Amended Petition for Writ of Habeas Corpus
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be denied and dismissed with prejudice” is not a specific objection. (Id. at 1.) His objection
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to the R&R’s statement about the state appellate court’s decision includes no explanation
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why he believes this history is incorrect or why it is relevant to any issue in this matter. (Id.
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at 3.) His objection that his lack of legal experience should warrant equitable tolling is too
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general, and in any event, lack of legal knowledge alone is not an extraordinary
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circumstance warranting equitable tolling. Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th
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Cir. 2006). The objection to the entire R&R is, again, a general objection and does not
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warrant additional comment. For the foregoing reasons, the Court adopts the R&R.
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IT IS ORDERED as follows:
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1. Petitioner’s Objections to the R&R (Docs. 104 & 105) are OVERRULED.
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2. The R&R (Doc. 86) is ACCEPTED.
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3. Petitioner’s Amended Petition for Writ of Habeas Corpus filed pursuant to 28
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U.S.C. § 2254 (Docs. 58 & 59) is DISMISSED with prejudice.
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4. A Certificate of Appealability and leave to proceed in forma pauperis on appeal
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are DENIED because the dismissal of the Petition is justified by a plain
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procedural bar; jurists of reason would not find the procedural ruling debatable;
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and Petitioner has not made a substantial showing of the denial of a
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constitutional right.
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5. The Clerk of the Court shall enter judgment DENYING and DISMISSING
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Petitioner’s Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. §
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2254 (Docs. 58 & 59) with prejudice and shall terminate this action.
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Dated this 28th day of October, 2024.
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Douglas L. Rayes
Senior United States District Judge
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