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Canez v. Ryan

United States District Court, D. Arizona

June 13, 2014

Arturo A. Canez, Petitioner,
v.
Charles L. Ryan, et. al., Respondents

Decided June 12, 2014.

Page 1251

[Copyrighted Material Omitted]

Page 1252

Arturo A Canez, also named as: Arturo Canez, Petitioner, Pro se, BUCKEYE, AZ.

For Charles L Ryan, Attorney General of the State of Arizona, Respondents: Ginger Jarvis, LEAD ATTORNEY, Office of the Attorney General, Phoenix, AZ.

OPINION

Page 1253

ORDER

Paul G. Rosenblatt, United States District Judge.

Before the Court is the Report and Recommendation of Magistrate Judge Logan (Doc. 32), which addresses Petitioner's First Amended Petition for Writ of Habeas Corpus, filed February 25, 2013, pursuant to 28 U.S.C. § 2254 (Doc. 12). Petitioner filed objections to the Report and Recommendation. (Doc. 34.)

Magistrate Judge Logan recommends that the Court deny the petition as barred by the one-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2244(d)(1)(A). Magistrate Judge Logan concludes that Petitioner is not eligible for statutory or equitable tolling. Having reviewed the matter de novo, the Court will adopt the Report and Recommendation.

Petitioner's convictions and sentences became final on October 7, 2011.[1] The limitations period was statutorily tolled until April 29, 2011, when Petitioner's timely-filed petition for postconviction relief was denied. (Doc. 20-2, Ex. P.) Petitioner filed his petition for habeas corpus relief on October 18, 2012 (Doc. 1), nearly six months after the limitations period expired.

For the reasons set forth in the Report and Recommendation, Petitioner's argument for additional statutory tolling fails because after April 29, 2011, no timely petition for review was pending. ( See Doc. 32 at 14-15; Doc. 20-2, Ex. R.) Petitioner's arguments for equitable tolling fail to meet the exceptionally high burden required for a showing that he had been " pursuing his rights diligently" and that " some extraordinary circumstances stood in [his] way." Pace v. DiGuglielmo, 544 U.S. 408, 418-19, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005); see, e.g., Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003); Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000). Finally, Petitioner's actual innocence argument fails because it is not supported by new evidence showing factual innocence. See Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).

Accordingly,

IT IS HEREBY ORDERED that Magistrate Judge Logan's Report and Recommendation (Doc. 32) is accepted and adopted by the Court.

IT IS HEREBY ORDERED that Petitioner's First Amended Petition for Writ of Habeas Corpus is dismissed and denied with prejudice. (Doc. 12.)

Page 1254

IT IS FURTHER ORDERED denying a Certificate of Appealability and denying leave to proceed in forma pauperis on appeal because Petitioner has not made a substantial showing of the denial of a constitutional right.

IT IS FURTHER ORDERED granting Petitioner's motion for an extension of the deadline for responding to the Report and Recommendation. (Doc. 12.)

IT IS FURTHER ORDERED that the Clerk of the Court shall close this case.


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