Bradley v. Ryan et al

Filing 23

ORDER that the petitioner's [Motion for] Rule 8 Evidentiary Hearing 21 is denied. ORDER Accepting and Adopting Report and Recommendation 20 . ORDER that the petitioner's Petition Under 28:2254 for a Writ of Habeas Corpus by a Person in S tate Custody is denied and that this action is dismissed with prejudice. ORDER that no certificate of appealability shall issue and that the petitioner is not authorized to appeal in forma pauperis. ORDER that the Clerk of the Court shall enter judgment accordingly. Signed by Judge Paul G Rosenblatt on 12/6/10. (TLJ)

Bradley v. Ryan et al

Doc. 23

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Donald Timothy Bradley, Petitioner, vs. Charles L. Ryan, et al., Respondents.

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No. CV-09-8215-PCT-PGR (ECV)

ORDER

Having reviewed de novo the Report and Recommendation of Magistrate Judge Voss in light of Petitioner's Response and Objection to Magistrate Judge's Report and Recommendation to Deny by Procedural Default (Doc. 22), the Court finds that the petitioner's objections should be overruled and that the Magistrate Judge correctly determined that the petitioner's habeas corpus petition, filed pursuant to 28 U.S.C. § 2254, should be dismissed as time-barred because it was filed, at the very least, almost one year after the expiration of the AEDPA's one-year statute of limitations and the petitioner has made no showing that the limitations period should be equitably tolled.1
1

The petitioner's objections to the Report and Recommendation in effect go just to the merits of his habeas petition, as does his motion for an evidentiary

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The Court further finds that the petitioner is not entitled to the issuance of a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(2) because the dismissal of his petition for a writ of habeas corpus is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable, and that the petitioner is not entitled to appeal in forma pauperis. pursuant to Fed.R.App.P. 24(a)(3)(A) because any such appeal would not be taken in good faith given the Court's stated reason for the dismissal of his petition. Therefore, IT IS ORDERED that the petitioner's [Motion for] Rule 8 Evidentiary Hearing (Doc. 21) is denied. IT IS FURTHER ORDERED that the Magistrate Judge's Report and Recommendation (Doc. 20) is accepted and adopted by the Court. IT IS FURTHER ORDERED that the petitioner's Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody is denied and that this action is dismissed with prejudice. IT IS FURTHER ORDERED that no certificate of apppealability shall issue and that the petitioner is not authorized to appeal in forma pauperis. / / / / / / / / /

hearing (Doc. 21), and those are issues that the Court cannot decide due to the untimeliness of the petition. Given that the petition is clearly time-barred, the Court does not believe that there is any reason to grant the petitioner's request, set forth in his objections, that the Court stay this matter until May, 2011 so that he may have time to consult with an attorney regarding all issues raised in this action. -2-

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IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly. DATED this 6th day of December, 2010.

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