Fernandez v. Fraker

Filing 14

ORDER ADOPTING REPORT AND RECOMMENDATIONS re 12 Objections to Report and Recommendation filed by Angel Fernandez; petition is dismissed as time barred; the Court will not grant a Certificate of Appeal, signed by Judge Ronald B. Leighton. (DN)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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ANGEL FERNANDEZ,
Petitioner,

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CASE NO. C12-5426 RBL-JRC
ORDER ADOPTING A REPORT
AND RECOMMENDATION

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v.

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RONALD FRAKER,
Respondent.

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The Court having reviewed the Report and Recommendation of the Hon. J. Richard

13 Creatura, United States Magistrate Judge, objections to the Report and Recommendation [Dkt.
14 #12], and the remaining record, does hereby find and Order:
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(1)

The Court adopts the Report and Recommendation;

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(2)

This petition is dismissed as time barred without reaching the merits.
Petitioner may not use an alleged jury instruction defect to claim actual
innocence. The actual innocence exception to procedural default requires
evidence of innocence that was not presented at trial and that evidence
must show that no reasonable jury would have convicted the petitioner.
Schlup v. Delo, 513 U.S. 298, 329 (1995). Petitioner failed to produce any
evidence of innocence.

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ORDER ADOPTING A REPORT AND
RECOMMENDATION - 1

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(3)

The Court will not grant a Certificate of Appeal.

DATED this 11th day of October, 2012.

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A

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Ronald B. Leighton
United States District Judge

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ORDER ADOPTING A REPORT AND
RECOMMENDATION - 2