Smith v. Ryan et al

Filing 14

ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION 13 . ORDER that the petitioner's [Amended] Petition Under 28:2254 for a Writ of Habeas Corpus 4 is denied and that this action is dismissed with prejudice as time-barred. ORDER that no certificate of appealability shall issue and that the petitioner is denied leave to appeal in forma pauperis. ORDER that the Clerk of the Court shall enter judgment accordingly. Signed by Senior Judge Paul G Rosenblatt on 11/18/13. (TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Judith M. Smith,
Petitioner,

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vs.
Charles L. Ryan, et al.,
Respondents.

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No. CV-12-08225-PCT-PGR (MEA)
ORDER

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Having reviewed de novo the Report and Recommendation of Magistrate

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Judge Aspey notwithstanding that no one has filed any objections to the Report and

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Recommendation, the Court finds that the petitioner’s amended habeas corpus

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petition, filed pursuant to 28 U.S.C. § 2254, should be dismissed with prejudice as

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time-barred because this action was filed long after the expiration of the AEDPA’s

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one-year statute of limitations and the petitioner has made no showing that the

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limitations period should be equitably tolled, and the petitioner has not asserted that

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she is actually innocent.1 Therefore,

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The petitioner filed her original, and unsigned, § 2254 petition on
November 9, 2012, and she filed her amended § 2254 petition pursuant to court
order on March 7, 2013 (which she signed on March 4, 2013.) While the Magistrate
Judge and the respondents differ by some two months as to when the one-year

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IT IS ORDERED that the Magistrate Judge’s Report and Recommendation
(Doc.13) is accepted and adopted by the Court.

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IT IS FURTHER ORDERED that the petitioner’s [Amended] Petition Under 28

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U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Doc. 4)

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is denied and that this action is dismissed with prejudice as time-barred.

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IT IS FURTHER ORDERED that no certificate of appealability shall issue and

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that the petitioner is denied leave to appeal in forma pauperis because the dismissal

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of the petitioner’s habeas petition is justified by a plain procedural bar and jurists of

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reason would not find the procedural ruling debatable.

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IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment
accordingly.
DATED this 18th day of November, 2013.

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limitations period expired, the Court need not make that specific determination
because it is clear that under any proper calculation the petitioner filed this action
over five years after the expiration of the limitations period.
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