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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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Malik Cornell Prior, Petitioner, 10 11 vs. 12 Charles L. Ryan, et al., 13 Respondent. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV 10-225-TUC-RCC ORDER 15 16 On April 21, 2010 Petitioner filed a Petition under 28 U.S.C. § 2254 for a Writ of Habeas 17 Corpus by a Person in State Custody. (Doc. 1). The Petition was dismissed with leave to 18 amend. (Doc. 3). Petitioner filed his First Amended Petition on June 3, 2010. (Doc. 5). The 19 Petition was fully briefed, and the Honorable Bernardo P. Velasco, United States Magistrate 20 Judge, filed a Report and Recommendation (Recommendation) in this action, which advised 21 the Court to deny the Petition. (Doc. 17). The Court will adopt the Recommendation and 22 deny the Petition. 23 The Recommendation advised the Court to find (1) the Petition was timely as to all claims 24 except the fourth, (2) the first and second grounds were procedurally defaulted because 25 Petitioner did not articulate federal law as the basis for the claims raised in state court, and 26 (3) the state court reasonably applied Blakely v. Washington, 542 U.S. 296 (2004). Relying 27 on Hemmerle v. Schriro, 495 F.3d 1069 (9th Cir. 2007), Respondent objected and argued the 28 Petition was not timely because it was not filed within one year of the Arizona Court of 1 Appeals’ denial of post-conviction relief. (Doc. 18). 2 The Court reviews this portion of the Recommendation de novo, United States v. 3 Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) ( en banc ), and finds Respondent’s 4 arguments unpersuasive. As explained in Celaya v. Stewart, 691 F.Supp.2d 1046 (D.Ariz. 5 2010), the statute of limitations in habeas cases is tolled pending resolution of post- 6 conviction proceedings. In Arizona, if the Arizona Court of Appeals grants review but 7 denies relief, a petition for post-conviction relief is final after the required mandate issues. 8 Id. at 1053-54. The Court adopts the Recommendation as to this issue. 9 No other objections remaining, the Court reviews the remainder of the 10 Recommendation for clear error. See Advisory Committee Notes to Fed.R.Civ.P. 72 (citing 11 Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir.1974)). Finding none, the 12 Court adopts the Recommendation as to the remaining issues. Accordingly, 13 The Court ACCEPTS the Recommendation of Magistrate Judge Velasco. (Doc. 17). 14 IT IS ORDERED that the Petitioner is DENIED. (Doc. 3). 15 IT IS FURTHER ORDERED denying Petitioner a Certificate of Appealability 16 because reasonable jurists would not find it debatable whether the Court was correct in its 17 procedural rulings, that the petition should have been resolved in a different manner, or that 18 the issues presented were “adequate to deserve encouragement to proceed further.” Slack 19 v. McDaniel, 529 U.S. 473, 484 (2000). 20 DATED this 17th day of April, 2012. 21 22 23 24 25 26 27 28 -2-

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