Pereida #242901 v. Ryan et al

Filing 18

ORDER ADOPTING REPORT AND RECOMMENDATION: It is Ordered that Magistrate Judge D. Thomas Ferraro's Report and Recommendation (Doc. 15 ) is accepted and adopted as the findings of fact and conclusions of law by this Court. Petitioner's P etition for Writ of Habeas Corpus (Doc. 1 ) is denied, and this action is dismissed with prejudice, and the Clerk should enter judgment and close this case. In the event the Petitioner files an appeal, the Court declines to issue a certificate of appealability because reasonable jurists would not find the courts conclusions and ruling debatable. Signed by Chief Judge Raner C Collins on 10/3/2014. (MFR)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Lionel Valenzuela Pereida, Petitioner, 10 11 ORDER v. 12 No. CV-13-00244-TUC-RCC Charles L. Ryan, et al., 13 Respondents. 14 15 Pending before the Court is Petitioner Lionel Valenzuela Pereida’s Petition Under 16 § 2254 (Doc. 1) and the June 11, 2014 Report and Recommendation (R & R) (Doc. 15) 17 from Magistrate Judge D. Thomas Ferraro, recommending that this Court dismiss the 18 Petition for Writ of Habeas Corpus. Petitioner timely filed his objection (Doc. 16) to the 19 R & R on June 19, 2014. The Court accepts and adopts Magistrate Judge Ferraro’s June 20 11, 2014 R & R as the findings of fact and conclusions of law of this Court and denies 21 Petitioner’s Petition for Writ of Habeas Corpus. 22 I. 23 The factual and procedural background in this case is thoroughly detailed in 24 Magistrate Judge Ferraro’s R & R (Doc. 15). This Court fully incorporates by reference 25 the “Factual and Procedural Background” section of the R & R into this Order. Background 26 II. 27 The duties of the district court in connection with a R & R are set forth in Rule 72 28 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court Discussion 1 may “accept, reject, or modify the recommended disposition; receive further evidence; or 2 return the matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3); 28 3 U.S.C. § 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149-50 (1985). Where the parties 4 object to an R & R “[a] judge of the [district] court shall make a de novo determination of 5 those portions of the [R & R] to which objection is made.” 28 U.S.C. § 636(b)(1); see 6 Thomas v. Arn, 474 U.S. 140, 149-50 (1985). The Court will not disturb a magistrate 7 judge’s order unless his factual findings are clearly erroneous or his legal conclusions are 8 contrary to law. 28 U.S.C. § 636(b)(1)(A). “[T]he magistrate judge’s decision…is 9 entitled to great deference by the district court.” U.S. v. Abonce-Barrera, 257 F.3d 959, 10 969 (9th Cir. 2001). 11 In his R & R, Magistrate Judge Ferraro finds that Pereida’s Petition is statutorily 12 time-barred and that equitable tolling does not apply. Pereida objects to the R & R 13 because he believes that it is argumentative and makes conclusory statements. Pereida 14 argues that Judge Ferraro’s statements regarding the timing of the filing of his PCR 15 petition, conclusion of his PCR proceeding, and filing of this federal petition are 16 unsupported. The Court, however, finds that Judge Ferraro’s findings are well supported 17 by the facts of this case. Based on the record before the Court, Pereida did not file his 18 Petition in this Court until April 10, 2014– 609 days after the limitations period resumed 19 in August 10, 2011. Even without including the 35 days of time that expired before 20 Petitioner filed his PCR petition, Pereida filed his Petition with this Court well over the 21 one-year statute of limitations period prescribed under the Antiterrorism and Effective 22 Death Penalty Act (AEDPA), 28 U.S.C. § 2244(d)(1). 23 Pereida also objects to Judge Ferraro’s finding that the letter from the Ninth 24 Circuit does not excuse the one-year statute of limitations. Even if the language in the 25 letter could be construed to permit tolling, “the letter was received from the Ninth Circuit 26 more than four months after the one-year statute of limitations had run.” (Doc. 15, p. 4). 27 Judge Ferraro also concluded that Pereida failed to establish that his attorney acted 28 negligently or that Pereida lacked access to the AEDPA material. This Court agrees. -2- 1 Pereida provides no evidence that his attorney was negligent in a manner that would 2 warrant equitable tolling. 3 ‘inadequacy’ of the prison law library did not prevent Pereida from filing his Petition on 4 time.” (Doc. 15, p. 6). Pereida bears the burden of proving that the statute of limitations 5 should be equitably tolled, Holland v. Florida, 560 U.S. 631, 645 (2010), and he has 6 failed to meet that burden. Accordingly, Furthermore, as Judge Ferraro correctly states, “the 7 IT IS HEREBY ORDERED that: 8 (1) 9 Magistrate Judge D. Thomas Ferraro’s Report and Recommendation (Doc. 15) is accepted and adopted as the findings of fact and conclusions of law by this Court. (2) 10 Petitioner’s Petition for Writ of Habeas Corpus (Doc. 1) is denied, and this 11 action is dismissed with prejudice, and the Clerk should enter judgment and close this 12 case. 13 (3) Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, in the 14 event the Petitioner files an appeal, the Court declines to issue a certificate of 15 appealability because reasonable jurists would not find the court’s conclusions and ruling 16 debatable. 17 DATED this 3rd day of October, 2014. 18 19 20 21 22 23 24 25 26 27 28 -3-

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