Sharkey v. Escapule et al

Filing 10

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)

1

NOT FOR PUBLICATION

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

John Edward Sharkey,
Petitioner,

10
11

ORDER

v.

12

No. CV-14-08180-PCT-JJT

Laura Escapule, et al.,

13

Respondents.

14
15

THIS MATTER is before the Court upon Magistrate Judge David K. Duncan’s

16

Report and Recommendation (Doc. 9), filed May 4, 2015, to which Petitioner filed no

17

Objection. While Petitioner’s failure to file any objection could serve as a basis for this

18

Court to adopt the R&R without further review, the Court has reviewed the Petition, the

19

Answer, the exhibits thereto and the R&R on the merits. After considering the above

20

filings, the Court will deny the Petition.

21

Judge Duncan is correct in concluding that Petitioner failed to exhaust any of his

22

remedies in state court. He did not fairly present his claims to the Arizona Court of

23

Appeals by providing that court with the facts underlying his claims or the federal basis

24

of those claims, both of which were required for each claim. Moreover, due to his delay

25

in presenting those claims, he is now time barred from going back and raising them

26

before the proper tribunal because the limitations of Ariz. R. Crim Pr. 32 have been

27

exceeded.

28

His claims are thus now subject to a procedural bar, as Judge Duncan

1

correctly concluded. Finally, Petitioner has demonstrated no cause for the default and no

2

actual prejudice to excuse such default, nor has he attempted to do so.

3

IT IS ORDERED accepting, adopting and incorporating by reference Magistrate

4

Judge Duncan’s Report and Recommendation and the analysis contained therein

5

(Doc. 9).

6

IT IS FURTHER ORDERED denying the Petition for a writ of habeas corpus

7

(Doc. 1) for the reasons set forth above and in more detail in the incorporated Report and

8

Recommendation.

9
10
11

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.

12
13

Honorable John J. Tuchi
United States District Judge

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-2-