Sharkey v. Escapule et al
ORDER ADOPTING REPORT AND RECOMMENDATION: IT IS ORDERED accepting, adopting and incorporating by reference Magistrate Judge Duncan's Report and Recommendation and the analysis contained therein (Doc. 9 ). IT IS FURTHER ORDERED denying the Pet ition for a writ of habeas corpus (Doc. 1 ) for the reasons set forth above and in more detail in the incorporated Report and Recommendation. IT IS FURTHER ORDERED denying a Certificate of Appealability because Petitioner has not made a substantial showing of the denial of a constitutional right. Signed by Judge John J Tuchi on 6/26/15. (KGM)
NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
John Edward Sharkey,
Laura Escapule, et al.,
THIS MATTER is before the Court upon Magistrate Judge David K. Duncan’s
Report and Recommendation (Doc. 9), filed May 4, 2015, to which Petitioner filed no
Objection. While Petitioner’s failure to file any objection could serve as a basis for this
Court to adopt the R&R without further review, the Court has reviewed the Petition, the
Answer, the exhibits thereto and the R&R on the merits. After considering the above
filings, the Court will deny the Petition.
Judge Duncan is correct in concluding that Petitioner failed to exhaust any of his
remedies in state court. He did not fairly present his claims to the Arizona Court of
Appeals by providing that court with the facts underlying his claims or the federal basis
of those claims, both of which were required for each claim. Moreover, due to his delay
in presenting those claims, he is now time barred from going back and raising them
before the proper tribunal because the limitations of Ariz. R. Crim Pr. 32 have been
His claims are thus now subject to a procedural bar, as Judge Duncan
correctly concluded. Finally, Petitioner has demonstrated no cause for the default and no
actual prejudice to excuse such default, nor has he attempted to do so.
IT IS ORDERED accepting, adopting and incorporating by reference Magistrate
Judge Duncan’s Report and Recommendation and the analysis contained therein
IT IS FURTHER ORDERED denying the Petition for a writ of habeas corpus
(Doc. 1) for the reasons set forth above and in more detail in the incorporated Report and
IT IS FURTHER ORDERED denying a Certificate of Appealability because
Petitioner has not made a substantial showing of the denial of a constitutional right.
Dated this 26th day of June, 2015.
Honorable John J. Tuchi
United States District Judge
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