Ricci v. Ryan et al

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATION 14 . The Petition for Writ of Habeas Corpus 1 is denied and this action is hereby DISMISSED. It is further ordered that the Clerk of Court is directed to enter judgment accordingly. Signed by Senior Judge Frank R Zapata on 3/31/15. (KAH)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Curt Andrew Ricci
Petitioner,

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vs.

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Charles L. Ryan, et al.,
Respondents.

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No. CV 12-066-TUC-FRZ
ORDER

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Before the Court for consideration is a Petition for Writ of Habeas Corpus brought

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pursuant to 28 U.S.C. § 2254, pro se, by Petitioner Curt Andrew Ricci, who is confined in

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the Arizona State Prison Complex - Lewis, and the Report and Recommendation of

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Magistrate Judge Bruce G. Macdonald, recommending that the District Court, after its

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independent review, deny the Petition as untimely.

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Petitioner was convicted in Pima County Superior Court of sale of a narcotic, two

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counts of possession of drug paraphernalia, and possession of a narcotic drug for sale. He

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was sentenced to multiple terms of imprisonment, the longest of which is 9 years and 3

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months.

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Petitioner raises one ground for relief, claiming that his due process rights were

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violated when evidence relating to his state case was found missing and that he was not

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allowed to discuss during trial the issue of thefts from the police department.

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Respondents filed a Limited Answer to Petition For Writ of Habeas Corpus,

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requesting the Petition be denied and dismissed with prejudice as untimely and procedurally

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defaulted under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA),

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which mandates the procedures for federal habeas review.

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This matter was referred to the Magistrate Judge pursuant to the provisions of 28

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U.S.C. § 636(b), Rule 72, Fed.R.Civ.P., and Local Rules 72.1 and 72.2 of the Rules of

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Practice of the United States District Court for the District of Arizona, for further

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proceedings and Report and Recommendation.

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The Report and Recommendation issued by Magistrate Judge Macdonald sets forth

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a thorough factual and procedural analysis of Petitioner’s state proceedings and recommends

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that the Petition be denied as untimely based on Petitioner having failed to show that he is

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entitled to equitable tolling.

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The Report and Recommendation further advised, in relevant part, that:

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Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2), any party may serve and file
written objections within fourteen (14) days after being served with a copy of
the Report and Recommendation.. . . If objections are not timely filed, they
may be deemed waived.. . .

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No objections were filed.

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

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review of the record herein, including the Petition Under 28 U.S.C. § 2254 for a Writ of

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Habeas Corpus (Doc. 1); Limited Answer to Petition for Writ of Habeas Corpus (Doc. 11);

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and the Report and Recommendation (Doc 14), that the Petition for a Writ of Habeas Corpus

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shall be denied and this action shall be dismissed in accordance with the Report and

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Recommendation.

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Based on the foregoing,

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IT IS HEREBY ORDERED that the Report and Recommendation (Doc. 14) is

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hereby ACCEPTED and ADOPTED as the findings of fact and conclusions of law by this

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Court;

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IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus (Doc. 1)

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is DENIED and this action is hereby DISMISSED;

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IT IS FURTHER ORDERED that the Clerk of Court is directed to enter judgment
accordingly.

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DATED this 31st day of March, 2015.

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