United States District Court, D. Arizona
C. Bury United States District Judge
matter was referred to Magistrate Judge Bernardo P. Velasco,
pursuant to the Rules of Practice for the United States
District Court, District of Arizona (Local Rules), Rule
(Civil) 72.1(a). On July 8, 2016, Magistrate Judge Velasco
issued a Report and Recommendation (R&R). He recommends
that the Court dismiss the Petition with prejudice because it
is barred by a one-year statute of limitation, and the actual
innocence exception to the limitation period does not apply.
The Court agrees and accepts and adopts the Magistrate
Judge's R&R as the findings of fact and conclusions
of law of this Court and dismisses the Petition, with
duties of the district court in connection with an R&R by
a Magistrate Judge are set forth in Rule 72 of the Federal
Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The
district court may “accept, reject, or modify, in whole
or in part, the findings or recommendations made by the
magistrate judge.” Fed.R.Civ.P. 72(b); 28 U.S.C. §
636(b)(1). Where the parties object to an 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. §
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
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 objections filed by the Petitioner,
the parties' briefs considered by the Magistrate Judge in
deciding whether or not to dismiss the Petition.
Petitioner objects to the Magistrate Judge's R&R. He
argues that his Petition was timely filed in respect to April
28, 2014, the date the Mandate issued. He asserts that if the
Court agrees with the Magistrate Judge that the Petition was
untimely, there was excusable neglect due to prison
conditions such as insufficient research time in the prison
library and/or the untimeliness should be excused because he
is actually innocent.
Court does not repeat the procedural history of this habeas
case, which the Magistrate Judge set out in the R&R,
(R&R (Doc. 34) at 1-4), except as is relevant here.
Petitioner's PCR Petition was denied on April 12, 2012.
The Arizona Court of Appeals accepted review but denied
relief on November 27, 2012. After multiple extensions of
time to file a petition for review in the Arizona Supreme
Court, on February 24, 2014, the last extension of time
expired. On March 13, 2014, the Arizona Supreme Court
dismissed the matter and issued a Mandate on April 28, 2014.
The Magistrate Judge correctly found the one-year time period
for filing a federal habeas petition began when the time for
review in the Arizona Supreme Court expired: February 24,
2014. This case was filed March 30, 2015, and is untimely.
noted by the Magistrate Judge, the Antiterrorism and
Effective Death Penalty Act of 1996, (AEDPA)
“‘imposes a one-year statute of limitations on
habeas corpus petitions filed by state prisoners in federal
court.'” (R&R (Doc. 34) at 4 (quoting
Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir.
2001) (citing 28 U.S.C. § 2244(d)(1))
Section 2244(d)(1) provides:
The limitations period shall run from the latest of-
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time ...