Calhoun v. Ryan et al
Filing
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ORDER AND DENIAL OF CERTIFICATE OF APPEALABILITY AND IN FORMA PAUPERIS STATUS: IT IS THEREFORE ORDERED that Report and Recommendation of the Magistrate Judge (Doc. 12 ) is modified to delete the sentence which reads: "Thus, Petitioner's statute of limitations was tolled for five days, extending his one year from January 11, 2000 through Monday, January 17, 2000." (Doc. 12 at 6, lns.11-13.) As thus modified, the R&R (Doc. 12 ) is accepted. IT IS FURTHER ORDERED that the Cle rk of the Court enter judgment dismissing petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1 ) with prejudice. The Clerk shall terminate this action. Having considered the issuance of a Certificate of Appealability from the order denying Petitioner's Petition for a Writ of Habeas Corpus, a Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied. (See document for full details). Signed by Judge Neil V Wake on 7/10/13. (LAD)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Matthew Trey Calhoun,
Petitioner,
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vs.
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Charles L. Ryan, et al.
Respondents.
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No. CV-13-08009-PCT-NVW
ORDER
AND
DENIAL OF CERTIFICATE OF
APPEALABILITY AND IN FORMA
PAUPERIS STATUS
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Pending before the court is the Report and Recommendation (“R&R”) of
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Magistrate Judge James F. Metcalf (Doc. 12) regarding petitioner’s Petition for Writ of
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Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1). The R&R recommends that
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the Petition be dismissed with prejudice. The Magistrate Judge advised the parties that
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they had fourteen days to file objections to the R&R. (R&R at P. 9 Ln.22 (citing 28
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U.S.C. § 636(b)). Respondents filed objections on July 2, 2013 (Doc. 13). Petitioner has
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filed no objections.
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The court has considered Respondents’ objections and reviewed the Report and
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Recommendation de novo. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1) (stating that
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the court must make a de novo determination of those portions of the Report and
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Recommendation to which specific objections are made). The court agrees with the
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Respondent’s Objections and sustains Respondents’ objections.
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636(b)(1) (stating that the district court “may accept, reject, or modify, in whole or in
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part, the findings or recommendations made by the magistrate”). The R&R erroneously
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concludes that Petitioner’s tile to file this petition was tolled for five days and expired on
See 28 U.S.C. §
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January 17, 2000. In truth, there was no tolling for five days, and the time expired on
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January 11, 2000.
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recommendation of the Magistrate Judge. The Magistrate Judge’s determinations and
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recommendations are otherwise accepted within the meaning of Rule 72(b), Fed. R. Civ.
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P.
This error is of no consequence for the final conclusion and
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IT IS THEREFORE ORDERED that Report and Recommendation of the
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Magistrate Judge (Doc. 12) is modified to delete the sentence which reads: “Thus,
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Petitioner’s statute of limitations was tolled for five days, extending his one year from
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January 11, 2000 through Monday, January 17.2000.” (Doc. 12 at 6, lns.11-13.) As thus
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modified, the R&R (Doc. 12) is accepted.
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IT IS FURTHER ORDERED that the Clerk of the Court enter judgment
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dismissing petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. §
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2254 (Doc. 1) with prejudice. The Clerk shall terminate this action.
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Having considered the issuance of a Certificate of Appealability from the order
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denying Petitioner’s Petition for a Writ of Habeas Corpus, a Certificate of Appealability
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and leave to proceed in forma pauperis on appeal are denied.
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Dated this 10th day of July, 2013.
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