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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Lionel Valenzuela Pereida,
Petitioner,

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ORDER

v.

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No. CV-13-00244-TUC-RCC

Charles L. Ryan, et al.,

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Respondents.

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Pending before the Court is Petitioner Lionel Valenzuela Pereida’s Petition Under

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§ 2254 (Doc. 1) and the June 11, 2014 Report and Recommendation (R & R) (Doc. 15)

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from Magistrate Judge D. Thomas Ferraro, recommending that this Court dismiss the

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Petition for Writ of Habeas Corpus. Petitioner timely filed his objection (Doc. 16) to the

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R & R on June 19, 2014. The Court accepts and adopts Magistrate Judge Ferraro’s June

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11, 2014 R & R as the findings of fact and conclusions of law of this Court and denies

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Petitioner’s Petition for Writ of Habeas Corpus.

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I.

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The factual and procedural background in this case is thoroughly detailed in

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Magistrate Judge Ferraro’s R & R (Doc. 15). This Court fully incorporates by reference

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the “Factual and Procedural Background” section of the R & R into this Order.

Background

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II.

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The duties of the district court in connection with a R & R are set forth in Rule 72

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of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court

Discussion

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may “accept, reject, or modify the recommended disposition; receive further evidence; or

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return the matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3); 28

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U.S.C. § 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149-50 (1985). Where the parties

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object to an R & R “[a] judge of the [district] court shall make a de novo determination of

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those portions of the [R & R] to which objection is made.” 28 U.S.C. § 636(b)(1); see

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Thomas v. Arn, 474 U.S. 140, 149-50 (1985). The Court will not disturb a magistrate

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judge’s order unless his factual findings are clearly erroneous or his legal conclusions are

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contrary to law. 28 U.S.C. § 636(b)(1)(A). “[T]he magistrate judge’s decision…is

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entitled to great deference by the district court.” U.S. v. Abonce-Barrera, 257 F.3d 959,

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969 (9th Cir. 2001).

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In his R & R, Magistrate Judge Ferraro finds that Pereida’s Petition is statutorily

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time-barred and that equitable tolling does not apply. Pereida objects to the R & R

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because he believes that it is argumentative and makes conclusory statements. Pereida

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argues that Judge Ferraro’s statements regarding the timing of the filing of his PCR

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petition, conclusion of his PCR proceeding, and filing of this federal petition are

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unsupported. The Court, however, finds that Judge Ferraro’s findings are well supported

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by the facts of this case. Based on the record before the Court, Pereida did not file his

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Petition in this Court until April 10, 2014– 609 days after the limitations period resumed

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in August 10, 2011. Even without including the 35 days of time that expired before

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Petitioner filed his PCR petition, Pereida filed his Petition with this Court well over the

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one-year statute of limitations period prescribed under the Antiterrorism and Effective

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Death Penalty Act (AEDPA), 28 U.S.C. § 2244(d)(1).

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Pereida also objects to Judge Ferraro’s finding that the letter from the Ninth

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Circuit does not excuse the one-year statute of limitations. Even if the language in the

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letter could be construed to permit tolling, “the letter was received from the Ninth Circuit

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more than four months after the one-year statute of limitations had run.” (Doc. 15, p. 4).

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Judge Ferraro also concluded that Pereida failed to establish that his attorney acted

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negligently or that Pereida lacked access to the AEDPA material. This Court agrees.

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Pereida provides no evidence that his attorney was negligent in a manner that would

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warrant equitable tolling.

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‘inadequacy’ of the prison law library did not prevent Pereida from filing his Petition on

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time.” (Doc. 15, p. 6). Pereida bears the burden of proving that the statute of limitations

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should be equitably tolled, Holland v. Florida, 560 U.S. 631, 645 (2010), and he has

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failed to meet that burden. Accordingly,

Furthermore, as Judge Ferraro correctly states, “the

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IT IS HEREBY ORDERED that:

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(1)

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Magistrate Judge D. Thomas Ferraro’s Report and Recommendation (Doc.

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(2)

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Petitioner’s Petition for Writ of Habeas Corpus (Doc. 1) is denied, and this

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action is dismissed with prejudice, and the Clerk should enter judgment and close this

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case.

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(3)

Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, in the

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event the Petitioner files an appeal, the Court declines to issue a certificate of

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appealability because reasonable jurists would not find the court’s conclusions and ruling

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debatable.

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DATED this 3rd day of October, 2014.

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