Lynam v. Ryan et al

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATION: (Doc. 16 ) as the findings of fact and conclusions of law of this Court. IT IS FURTHER ORDERED that Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Doc. 1 ) i s DENIED. IT IS FURTHER ORDERED that if Petitioner files an appeal, the Court declines to issue a certificate of appealability, pursuant to Rule 11(a) of the Rules Governing Section 2254 cases because reasonable jurists would not find the Courts procedural ruling debatable. Signed by Senior Judge David C Bury on 3/12/2019. (MCO)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Michael Ray Lynam,
Petitioner,

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ORDER

v.

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No. CV-15-00488-TUC-DCB

Charles L Ryan, et al.,

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Respondents.

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This matter was referred to Magistrate Judge Bruce G. Macdonald, pursuant to

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Rules of Practice for the United States District Court, District of Arizona (Local Rules),

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Rule (Civil) 72.1(a). On January 22, 2019, Magistrate Judge Macdonald issued a Report

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and Recommendation (R&R). He recommends that the Court deny the Petition filed under

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U.S.C. § 2254 for Writ of Habeas Corpus by a person in State custody. The Magistrate

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Judge found the Petition was barred by the one-year statute of limitation under the Anti-

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terrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d)(1). The

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Court accepts and adopts the Magistrate Judge’s R&R as the findings of fact and

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conclusions of law of this Court and dismisses the Petition as time-barred.

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STANDARD OF REVIEW

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The duties of the district court in connection with a R&R by a Magistrate Judge are

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set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The

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district court may “accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” Fed.R.Civ.P. 72(b); 28 U.S.C. §

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636(b)(1). Where the parties object to a R&R, “‘[a] judge of the [district] court shall make
a de novo determination of those portions of the [R&R] to which objection is made.’”
Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (quoting 28 U.S.C. § 636(b)(1)).
This Court's ruling is a de novo determination as to those portions of the R&R to
which there are objections. 28 U.S.C. § 636(b)(1)(C); Wang v. Masaitis, 416 F.3d 992,
1000 n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th
Cir.2003) (en banc). To the extent that no objection has been made, arguments to the
contrary have been waived. Fed. R. Civ. P. 72; see 28 U.S.C. § 636(b)(1) (objections are
waived if they are not filed within fourteen days of service of the R&R), see also McCall
v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980) (failure to object to Magistrate's report
waives right to do so on appeal); Advisory Committee Notes to Fed. R. Civ. P. 72 (citing
Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974) (when no timely
objection is filed, the court need only satisfy itself that there is no clear error on the face of
the record in order to accept the recommendation)).
The parties were sent copies of the R&R and instructed that, pursuant to 28 U.S.C.
§ 636(b)(1), they had 14 days to file written objections. See also, Fed. R. Civ. P. 72 (party
objecting to the recommended disposition has fourteen (14) days to file specific, written
objections). The Court has considered the Objection filed by the Plaintiff, the Reply filed
by the Defendants, and the parties’ briefs considered by the Magistrate Judge in deciding
the Petition.
OBJECTIONS
In the Petitioner’s Objection, he argues the merits of his Petition. Specifically, he
argues that the Arizona courts got it wrong when they refused to apply Martinez v. Ryan,
566 U.S. 1 (2012) to excuse preclusion related to his claim of ineffective assistance of
counsel in his Rule 32 proceeding. Unfortunately, the Petitioner cannot get review here on
the merits of his Petition because, as the Magistrate Judge explained, his Petition is barred
by AEDPA’s the one-year statute of limitation period. (R&R (Doc. 16) at 18-23.)
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The Court agrees with the Magistrate Judge that the Petition is time barred.
Magistrate Judge Macdonald issued a well-reasoned R&R, which explains why as a matter
of law and fact the case is barred by the one-year statute of limitation, including a correct
analysis of the time-bar as tolled in this case.
CONCLUSION
After de novo review of the issues raised in the Plaintiff’s Objection, this Court
agrees with the findings of fact and conclusions of law made by the Magistrate Judge in
the R&R for determining the Petition. The Court adopts it, and for the reasons stated in
the R&R, the Court denies Plaintiff’s Petition for habeas relief.
Accordingly,
IT IS ORDERED that after a full and independent review of the record, in respect
to the Objection, the Magistrate Judge's Report and Recommendation (Doc. 16) is accepted
and adopted as the findings of fact and conclusions of law of this Court.
IT IS FURTHER ORDERED that Petition Under 28 U.S.C. § 2254 for a Writ of
Habeas Corpus by a Person in State Custody (Doc. 1) is DENIED.
IT IS FURTHER ORDERED that the Clerk of the Court shall enter Judgment
accordingly.
IT IS FURTHER ORDERED that if Petitioner files an appeal, the Court declines
to issue a certificate of appealability, pursuant to Rule 11(a) of the Rules Governing Section
2254 cases because reasonable jurists would not find the Court’s procedural ruling
debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Dated this 12th day of March, 2019.

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