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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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF ARIZONA 6 7 8 9 10 11 12 Guadalupe Gonzales, Jr., ) ) Petitioner, ) v. ) ) ) Charles Ryan, et al., ) ) Respondents. ) ______________________________________ ) CV-12-441-TUC-DCB ORDER 13 14 This matter was referred to the United States Magistrate Judge 15 pursuant to 28 U.S.C. §636(b)(1)(B) and the local rules of practice of 16 this Court for a Report and Recommendation (R&R) on Petitioner’s Petition 17 for Writ of Habeas Corpus (Petition), 28 U.S.C.§2254. Before the Court 18 are a Report and Recommendation and Petitioner’s 19 Magistrate Judge recommends that the Court dismiss the Petition as 20 untimely filed with no 21 action. 22 Objections. The statutory or equitable tolling and dismiss the STANDARD OF REVIEW 23 When objection is made to the findings and recommendation of a 24 magistrate judge, the district court must conduct a de novo review. 25 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). 26 DISCUSSION 27 In a nutshell, Petitioner was convicted by a jury of two counts of 28 second degree murder, four counts of endangerment and four counts related 1 to driving under the influence and was sentenced to serve consecutive 2 mitigated 10–year sentences. The convictions and sentences were upheld 3 on appeal and review was denied by the Arizona Supreme Court on September 4 8, 2010. 5 6 7 8 9 10 11 12 13 14 15 16 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[.] 17 (R&R at 3.) The one-year limitations period began to run on June 3, 18 2011, and expired before the Petition was filed in the instant matter on 19 June 8, 2012. 20 In his Objection, Petitioner admits that his Petition was mailed 21 three days late, but claims that this was due to limited access and time 22 to complete legal research. The R&R recommends dismissal of the Petition 23 as untimely filed, reasoning that the Petitioner has not satisfied the 24 heavy burden he is required to meet to establish a basis for equitable 25 tolling. This Court agrees. 26 27 28 2 1 2 Based on the foregoing, the Court will adopt the Report and Recommendation in its entirety. 3 Accordingly, after conducting a de novo review of the record, 4 IT IS ORDERED that the Court ADOPTS the Report and Recommendation 5 6 (Doc. 12) in its entirety. The Objections (Doc. 18) are OVERRULED. IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus 7 (Doc. 1) is DENIED and the action is dismissed. 8 enter separately and the action will be closed. 9 10 11 IT IS FURTHER ORDERED that, after consideration, the Court declines to issue a Certificate of Appealability. DATED this 10th day of February, 2014. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A Final Judgment shall 3

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