Buske #217334 v. Ryan et al

Filing 12

ORDER adopting and accepting Magistrate Judge Charles Pyle's 9 Report and Recommendation. Petitioner Carl Ray Buske's Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1 ) is denied. The Clerk of Court is directed to close the case. Signed by Chief Judge Raner C Collins on 4/5/2017.(SIB)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Carl Ray Buske,
Petitioner,

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ORDER

v.

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No. CV-15-00098-TUC-RCC

Charles L Ryan, et al.,

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Respondents.

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Pending before the Court is Petitioner Carl Ray Buske’s Petition for a Writ of

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Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1), Magistrate Judge Charles Pyle’s

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Report and Recommendation (“R & R”) (Doc. 9) and Petitioner’s objections to the R & R

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(Doc. 10). For the following reasons, this Court shall overrule Petitioner’s objections,

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accept and adopt the R & R and deny Sartin’s petition.

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Discussion

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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 may

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“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).

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Where the parties object to an R & R, “[a] judge of the [district] court shall make a

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de novo determination of those portions of the [R & R] to which objection is made.” 28

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U.S.C. § 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149-50 (1985). When no objection

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is filed, the district court need not review the R & R de novo. Wang v. Masaitis, 416 F.3d

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992, 1000 n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22

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(9th Cir. 2003) (en banc). The Court will not disturb a magistrate judge’s order unless his

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factual findings are clearly erroneous or his legal conclusions are contrary to law. 28

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

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by the district court.” United States v. Abonce-Barrera, 257 F.3d 959, 969 (9th Cir.

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2001). A failure to raise an objection waives all objections to the magistrate judge’s

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findings of fact. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). A failure to object

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to a Magistrate Judge’s conclusion “is a factor to be weighed in considering the propriety

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of finding waiver of an issue on appeal.” Id. (internal citations omitted).

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In his objections, Buske concedes that his petition is untimely but seeks equitable

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tolling because the representation his attorney provided on direct appeal fell below an

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objective standard of reasonableness. Petitioner is incorrect. A petitioner is entitled to

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equitable tolling of the limitations period “only if he shows (1) that he has been pursuing

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his rights diligently, and (2) that some extraordinary circumstance stood in his way and

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prevented timely filing.” Lakey v. Hickman, 633 F.3d 782, 786 (9th. Cir. 2011). “The

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high threshold of extraordinary circumstances is necessary lest the exceptions swallow

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the rule.” Id. Petitioner bears the burden of showing “extraordinary circumstances were

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the cause of his untimeliness.” Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003)

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(internal quotation and citation omitted).

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Here, Buske restates his argument that his counsel during the direct appeal

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provided misrepresentations and that but for these misrepresentations Buske would have

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timely filed his federal habeas petition rather than a fourth petition in state court.

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However, Magistrate Judge Pyle’s R & R sufficiently discusses why the alleged

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misrepresentations neither constitutes an extraordinary circumstance nor tolls the

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AEDPA time limitations. Because Buske’s petition was untimely and is ineligible for

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either statutory or equitable tolling, this Court shall deny the petition.

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…

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Accordingly,

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IT IS HEREBY ORDERED that Magistrate Judge Charles Pyle’s Report and

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Recommendation (“R & R”) (Doc. 9) is accepted and adopted.
IT IS FURTHER ORDERED that Petitioner Carl Ray Buske’s Petition for a

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Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) is denied.

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IT IS FURTHER ORDERED that the Clerk of Court is directed to close the
case.
Dated this 5th day of April, 2017.

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