Leacock v. Ryan et al
ORDER ADOPTING 17 Report and Recommendation. The Petition for Writ of Habeas Corpus (Doc. 1 ) is denied. A Certificate of Appealability is denied upon the Court's conclusion that jurists of reason would not find its assessment of the constitutional claims to be debatable or wrong. The Clerk shall close this matter. Signed by Judge John J Tuchi on 2/14/17. (LSP)
NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Donald Kevin Leacock,
No. CV-16-08168-PCT-JJT (DMF)
Charles L Ryan, et al.,
At issue are the Petition for Writ of Habeas Corpus filed by Donald Kevin
Leacock (“Petitioner”) on July 22, 2016 (Doc. 1), to which Charles Ryan and the Atty.
Gen. of the State of Arizona (“Respondents”) filed a Response (Doc. 9) and Petitioner
filed a Reply (Doc. 16); and the Report and Recommendation (“R&R”) prepared in this
matter by United States Magistrate Judge Deborah M. Fine (Doc. 17), which
recommends that this Court deny the Petition and dismiss it with prejudice.
The time for any party to file objections to the R&R ran as of November 30, 2016.
No party filed any objections, either as of that date or at any time thereafter. Such failure
to file objections to the R&R is considered a waiver of a party’s right to de novo
consideration of the issues. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.
2003) (en banc). It also constitutes a waiver of a party’s right to appellate review of the
findings of fact in an order or judgment entered pursuant to the R&R. See Robbins v.
Carey, 481 F.3rd 1143, 1146-47 (9th Cir. 2007). Nonetheless, this Court has undertaken
de novo review of the issues presented in the Petition and associated briefing. Upon that
review, the Court concludes that Magistrate Judge Fine’s recommendations are wholly
sound. The Court adopts in whole Judge Fine’s R&R and the underlying reasoning. The
Court expressly finds that under AEDPA, limitations period, Petitioner’s Petition was due
no later than October 23, 2010, his filing of successive PCR petitions after his first PCR
review process became final were all untimely and did not reset the clock for the
limitations period or otherwise operate as statutory tolling under AEDPA; and Petitioner
provided no justification for equitable tolling. Moreover, for the reasons exhaustively
stated and analyzed in Judge Fine’s R&R, Petitioner does not qualify for consideration
under the Schlup gateway. For all of those reasons, the Court will deny the Petition and
dismiss it with prejudice.
IT IS ORDERED adopting the R&R (Doc. 17) in whole.
IT IS FURTHER ORDERED denying the Petition for Writ of Habeas Corpus
IT IS FURTHER ORDERED denying a Certificate of Appealability upon the
Court’s conclusion that jurists of reason would not find its assessment of the
constitutional claims to be debatable or wrong. The Clerk of Court shall close this matter.
Dated this 14th day of February, 2017.
Honorable John J. Tuchi
United States District Judge
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