Espinoza-Beltran v. Walker

Filing 17

ORDER granting 14 Motion to Amend/Correct Answer to Petition for Writ of Habeas Corpus; Accepted and Adopted 16 Report and Recommendations. The Amended Petition for Writ of Habeas Corpus(Doc.6) is DENIED. Judgment entered accordingly.. Signed by Senior Judge Frank R Zapata on 4/12/2012.(JKM)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Hector Jesus Espinoza-Beltran,
Petitioner,

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vs.

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Charles Ryan, et al,

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Respondents.

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No. CV 11-088-TUC-FRZ
ORDER

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Before the Court for consideration is the First Amended Petition for Writ of Habeas

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Corpus pursuant to 28 U.S.C. § 2254 filed by Petitioner Hector Jesus Espinoza-Beltran and

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the Report and Recommendation of the Magistrate Judge, recommending that this Court

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issue an Order denying Petition for Writ of Habeas Corpus.

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This matter was referred to Magistrate Judge Glenda E. Edmonds pursuant to Rules

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72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and report and

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recommendation.

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Magistrate Judge Edmonds issued her Report and Recommendation, recommending

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that the District Court, after its independent review of the record, enter an order dismissing

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the Amended Petition for Writ of Habeas Corpus as time barred.

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As set forth in detail in the Report and Recommendation, the limitation period for all

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of Espinoza-Beltran’s claims commenced on September 18, 2001, “the date on which the

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judgment became final by the conclusion of direct review or the expiration of the time for

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seeking such review.” 28 U.S.C. § 2244(d)(1)(A). The one-year period expired on

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September 18, 2002. Espinoza-Beltran did not filed his federal petition for habeas relief until

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January 28, 2011. Accordingly, Magistrate Judge Edmonds properly concluded this present

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action is time barred.

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The Report and Recommendation also advised that any party may serve and file

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written objections within 14 days of being served with a copy of this report and

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recommendation, pursuant to 28 U.S.C. §636 (b), and that, if objections are not timely filed,

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they may be deemed waived. No objections were filed.

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The Court finds, after consideration of the matters presented and an independent

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review of the record herein, that the Petition should be denied as time barred and this action

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be dismissed as recommended.

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In the event of an appeal, the Court finds that Petitioner has failed to make the

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requisite showing necessary to justify the issuance of a certificate of appealability. A

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certificate of appealability may issue “only if the applicant has made a substantial showing

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of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “[A] substantial showing of

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the denial of a constitutional right . . . includes showing that reasonable jurists could debate

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whether . . . the petition should have been resolved in a different manner or that the issues

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presented were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel,

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529 U.S. 473, 483-84, 120 S.Ct. 1595, 1603-04 (2000) (quoting Barefoot v. Estelle, 463 U.S.

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880, 893 n.4, 103 S.Ct. 3383, 3395 n.4 (1983)). See also Turner v. Calderon, 281 F.3d 851,

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865 (9th Cir. 2002). “When the district court denies a habeas petition on procedural grounds

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without reaching the prisoner’s underlying constitutional claim, a [certificate of

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appealability] should issue when the prisoner shows, at least, that jurists of reason would find

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it debatable whether the petition states a valid claim of the denial of a constitutional right and

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that jurists of reason would find it debatable whether the district court was correct in its

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procedural ruling.” Slack, 529 U.S. at 484; 120 S.Ct 1604. Such has not been presented.

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Based on the foregoing,

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IT IS ORDERED that the Report and Recommendation (Doc. 16) is hereby

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ACCEPTED AND ADOPTED as the findings of fact and conclusions of law;
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IT IS FURTHER ORDERED that the Amended Petitioner for Writ of Habeas Corpus
(Doc. 6) is DENIED;
IT IS FURTHER ORDERED that the Motion to Amend/Correct Answer to Petition
for Writ of Habeas Corpus (Doc. 14) is GRANTED;

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IT IS FURTHER ORDERED that, in the event of an appeal, the Court finds there are

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no issues “adequate to deserve encouragement to proceed further” and thus, no certificate of

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appealability shall issue;

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IT IS FURTHER ORDERED that Judgment be entered accordingly.

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DATED this 12th day of April, 2012.

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