Brown #166036 v. Ryan et al

Filing 14

ORDER - That Magistrate Judge Bade's R&R (Doc. 13 ) is accepted and adopted as the order of this Court. The Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1 ) is denied and dismissed with prejudice. IT IS FURTHER O RDERED that pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied because dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable. The Clerk shall terminate this action and enter judgment accordingly. Signed by Judge Diane J Humetewa on 06/29/15. (ATD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Robert LaRue Brown, Jr.,
Petitioner,

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ORDER

v.

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No. CV-14-8229-PCT-DJH

Charles L. Ryan, et al.,

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Respondents.

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This matter is before the Court on Petitioner’s Petition for Writ of Habeas Corpus

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pursuant to 28 U.S.C. § 2254 (Doc. 1) and the Report and Recommendation (“R&R”)

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issued by United States Magistrate Judge Bridget S. Bade (Doc. 13). Pursuant to a plea

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agreement, Petitioner pled guilty to and was convicted of one count of manslaughter and

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one count of theft of means of transportation. (Doc. 13 at 2-3). He was sentenced to 21

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years in prison on the manslaughter conviction and a concurrent term of four years in

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prison on the theft conviction. (Doc. 13 at 3). He raised five grounds for relief in the

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Petition, including ineffective assistance of trial counsel, improper consideration of

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aggravating factors by the trial court, erroneous finding by the trial court that the murder

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was cruel, heinous, or depraved, unlawful determination of aggravating factors by the

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trial court rather than a jury, and ineffective assistance during Petitioner's "of-right" post-

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conviction relief proceeding. (Doc. 13 at 4). After consideration of the issues, Judge

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Bade concluded that the Petitioner's claims are time-barred because he failed to file the

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Petition within the one-year statute of limitations period, which expired on December 27,

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2007. (Doc. 13 at 15). The Petition was filed nearly seven years too late and there was

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no basis for tolling the limitations period. (Doc. 13 at 5-13). Accordingly, Judge Bade

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recommends the Petition be denied. (Doc. 13 at 15).

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Judge Bade advised the parties that they had fourteen days to file objections and

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that the failure to file timely objections "may result in the acceptance of the Report and

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Recommendation by the District Court without further review." (Doc. 13 at 16) (citing

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United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc)). The

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parties have not filed objections and the time to do so has expired.

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objections, the Court is not required to review the findings and recommendations in the

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R&R. See Thomas v. Arn, 474 U.S. 140, 149 (1989) (The relevant provision of the

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Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C), “does not on its face require any

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review at all . . . of any issue that is not the subject of an objection.”); Reyna-Tapia, 328

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F.3d at 1121 (same); Fed.R.Civ.P. 72(b)(3) (“The district judge must determine de novo

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any part of the magistrate judge’s disposition that has been properly objected to.”).

Absent any

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Nonetheless, the Court has reviewed the R&R and agrees with its findings and

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recommendations. The Court will, therefore, accept the R&R and deny the Petition. See

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28 U.S.C. § 636(b)(1)(C) (“A judge of the court may accept, reject, or modify, in whole

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or in part, the findings or recommendations made by the magistrate judge.”);

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Fed.R.Civ.P. 72(b)(3) (same).

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Accordingly,

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IT IS ORDERED that Magistrate Judge Bade's R&R (Doc. 13) is accepted and

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adopted as the order of this Court.
IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 (Doc. 1) is denied and dismissed with prejudice.

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IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing

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Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis

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on appeal are denied because dismissal of the Petition is justified by a plain procedural

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bar and jurists of reason would not find the procedural ruling debatable.

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IT IS FURTHER ORDERED that the Clerk of Court shall terminate this action
and enter judgment accordingly.
Dated this 29th day of June, 2015.

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Honorable Diane J. Humetewa
United States District Judge

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