Prior v. Ryan et al

Filing 19

ORDER accepting 17 Report and Recommendations. Petioner's 5 Amended Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 is denied. It is further ordered denying Petitioner a Certificate of Appealability because reasonable jurists would not find it debatable whether the Court was correct in its procedural rulings. (see attached pdf for complete information) Signed by Judge Raner C Collins on 4/17/2012. (GCP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Malik Cornell Prior,
Petitioner,

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vs.

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Charles L. Ryan, et al.,
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Respondent.
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No. CV 10-225-TUC-RCC
ORDER

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On April 21, 2010 Petitioner filed a Petition under 28 U.S.C. § 2254 for a Writ of Habeas

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Corpus by a Person in State Custody. (Doc. 1). The Petition was dismissed with leave to

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amend. (Doc. 3). Petitioner filed his First Amended Petition on June 3, 2010. (Doc. 5). The

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Petition was fully briefed, and the Honorable Bernardo P. Velasco, United States Magistrate

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Judge, filed a Report and Recommendation (Recommendation) in this action, which advised

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the Court to deny the Petition. (Doc. 17). The Court will adopt the Recommendation and

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deny the Petition.

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The Recommendation advised the Court to find (1) the Petition was timely as to all claims

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except the fourth, (2) the first and second grounds were procedurally defaulted because

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Petitioner did not articulate federal law as the basis for the claims raised in state court, and

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(3) the state court reasonably applied Blakely v. Washington, 542 U.S. 296 (2004). Relying

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on Hemmerle v. Schriro, 495 F.3d 1069 (9th Cir. 2007), Respondent objected and argued the

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Petition was not timely because it was not filed within one year of the Arizona Court of

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Appeals’ denial of post-conviction relief. (Doc. 18).

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The Court reviews this portion of the Recommendation de novo, United States v.

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Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) ( en banc ), and finds Respondent’s

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arguments unpersuasive. As explained in Celaya v. Stewart, 691 F.Supp.2d 1046 (D.Ariz.

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2010), the statute of limitations in habeas cases is tolled pending resolution of post-

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conviction proceedings. In Arizona, if the Arizona Court of Appeals grants review but

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denies relief, a petition for post-conviction relief is final after the required mandate issues.

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Id. at 1053-54. The Court adopts the Recommendation as to this issue.

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No other objections remaining, the Court reviews the remainder of the

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Recommendation for clear error. See Advisory Committee Notes to Fed.R.Civ.P. 72 (citing

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Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir.1974)). Finding none, the

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Court adopts the Recommendation as to the remaining issues. Accordingly,

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The Court ACCEPTS the Recommendation of Magistrate Judge Velasco. (Doc. 17).

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IT IS ORDERED that the Petitioner is DENIED. (Doc. 3).

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IT IS FURTHER ORDERED denying Petitioner a Certificate of Appealability

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because reasonable jurists would not find it debatable whether the Court was correct in its

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procedural rulings, that the petition should have been resolved in a different manner, or that

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the issues presented were “adequate to deserve encouragement to proceed further.” Slack

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v. McDaniel, 529 U.S. 473, 484 (2000).

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DATED this 17th day of April, 2012.

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