Calhoun v. Ryan et al

Filing 14

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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