Gonzales v. Ryan et al

Filing 19

ORDER adopting 12 Report and Recommendation in its entirety. Further ordered that the Petition for Writ of Habeas Corpus is denied and the action is dismissed. A Final Judgment shall enter separately and the action will be closed. It is further ordered that the Court declines to issue a Certificate of Appealability. Signed by Senior Judge David C Bury on 2/10/2014.(BAR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA

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Guadalupe Gonzales, Jr.,

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Petitioner,
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v.
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Charles Ryan, et al.,
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Respondents.
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______________________________________ )

CV-12-441-TUC-DCB

ORDER

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This matter was referred to the United States Magistrate Judge

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pursuant to 28 U.S.C. §636(b)(1)(B) and the local rules of practice of

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this Court for a Report and Recommendation (R&R) on Petitioner’s Petition

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for Writ of Habeas Corpus (Petition), 28 U.S.C.§2254. Before the Court

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are a Report and Recommendation and Petitioner’s

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Magistrate Judge recommends that the Court dismiss the Petition as

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untimely filed with no

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action.

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Objections.

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statutory or equitable tolling and dismiss the

STANDARD OF REVIEW

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When objection is made to the findings and recommendation of a

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magistrate judge, the district court must conduct a de novo review.

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United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).

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DISCUSSION

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In a nutshell, Petitioner was convicted by a jury of two counts of

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second degree murder, four counts of endangerment and four counts related

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to driving under the influence and was sentenced to serve consecutive

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mitigated 10–year sentences. The convictions and sentences were upheld

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on appeal and review was denied by the Arizona Supreme Court on September

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8, 2010.

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Then,

On October 7, 2010, Gonzales filed a timely notice for postconviction relief (“PCR”). Id., Ex. C. However, in a ruling
dated June 3, 2011, the trial noted that Gonzales had failed
to file a memorandum in support of his PCR petition and,
after having granted several previous motions to extend,
refused to grant an additional extension and dismissed the
petition. Id., Ex. D. Gonzales appealed the dismissal.
Id., Ex. E. On July 18, 2011, the Court of Appeals issued
an order finding that Gonzales’ petition for review was not
in compliance with Rule 32.9, Ariz.R.Crim.P., and ordered
Gonzales to file a petition conforming to the rule by August
17, 2011. Id., Ex. F. On December 2, 2011, Gonzales filed
a petition claiming that the dismissal of his petition was
reversible error and that his trial counsel had been
ineffective by failing to present expert testimony that the
oxycodone in the victim driver’s bloodstream affected her
driving ability. Id., Ex. G. On December 16, 2011, the Court
of Appeals dismissed the petition because there had been “no
compliance with this Court’s order dated July 18, 2011.”
Id., Ex. J. Gonzales claims he appealed the dismissal to the
Arizona Supreme Court. Petition, p. 5.
[T]he petition now before the Court, ... was filed on June
8, 2012[.]

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(R&R at 3.)

The one-year limitations period began to run on June 3,

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2011, and expired before the Petition was filed in the instant matter on

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June 8, 2012.

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In his Objection, Petitioner admits that his Petition was mailed

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three days late, but claims that this was due to limited access and time

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to complete legal research. The R&R recommends dismissal of the Petition

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as untimely filed, reasoning that the Petitioner has not satisfied the

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heavy burden he is required to meet to establish a basis for equitable

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tolling.

This Court agrees.

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Based on the foregoing, the Court will adopt the Report and
Recommendation in its entirety.

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Accordingly, after conducting a de novo review of the record,

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IT IS ORDERED that the Court ADOPTS the Report and Recommendation

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(Doc. 12) in its entirety.

The Objections (Doc. 18) are OVERRULED.

IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus

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(Doc. 1) is DENIED and the action is dismissed.

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enter separately and the action will be closed.

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IT IS FURTHER ORDERED that, after consideration, the Court declines
to issue a Certificate of Appealability.

DATED this 10th day of February, 2014.

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A Final Judgment shall

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