Valadez-Torres v. USA
ORDER ADOPTING REPORT AND RECOMMENDATION in whole 11 Report and Recommendation and denying and dismissing with prejudice Petition (Doc. 1 ). Denying a certificate of Appealability and leave to proceed in forma pauperis on appeal because the dismissal of the motions is justified by a plain procedural bar and jurists of reason would not find the proceeding debatable. Signed by Judge John J Tuchi on 8/21/17. (DXD)
NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Juan Manuel Valadez-Torres,
No. CV-16-08157-PCT-JJT (JZB)
At issue is the Report and Recommendation (“R&R”) (Doc. 11), submitted by
United States Magistrate Judge John Z. Boyle on June 12, 2017, recommending that this
Court deny and dismiss with prejudice Petitioner Juan Manuel Valadez-Torres’s Motion
to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). When
Petitioner instituted this action, he also filed a Motion to Vacate (Doc. 43) in his
underlying criminal matter. The Court addresses both motions here. Petitioner has filed
no Response to the R&R and the time for such response is now well-expired. The Court
therefore is entitled to accept the R&R without further review. United States v. Reyna-
Tapia, 328 F.3d 1114, 1121 9th Cir. (2003). The Court nonetheless has engaged in de
novo review of the matter, and after such review, will adopt in the whole the R&R, and
the reasoning set forth by Judge Boyle in support of it.
Petitioner’s conviction and sentence became final in June 2007 because he chose
not to file an appeal upon entry of judgment. His 2255 motion therefor was due no later
than June 25, 2008, but was not filed until more than eight years after that—on July 8,
2016. Petitioner has not stated, and the Court finds no grounds for, equitable tolling. His
remaining claim, as stated in Ground Two of his Petition, for ineffective assistance of
counsel, is untimely. The court therefore will dismiss the 2255 Petition. And because
what remains of Petitioner’s Motion to Vacate in his criminal matter is the same issue,
the Court will deny the motion there as well.
IT IS ORDERED in matter CV-16-8157-PHX-JJT(JZB) adopting in whole the
R&R prepared by Judge Boyle (Doc. 11), and denying and dismissing with prejudice the
Petition (Doc. 1).
IT IS FURTHER ORDERED in matter CR-06-1068-PHX-JJT denying
Defendant’s Motion to Vacate (Doc. 43). The matter shall remain closed.
IT IS FURTHER ORDERED denying a certificate of Appealability and leave to
proceed in forma pauperis on appeal because the dismissal of the motions is justified by a
plain procedural bar and jurists of reason would not find the proceeding debatable..
Dated this 21st day of August, 2017.
Honorable John J. Tuchi
United States District Judge
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