United States District Court, D. Arizona
DAVID C. BURY, UNITED STATE DISTRICT JUDGE.
matter was referred to Magistrate Judge Leslie A. Bowman on
December 16, 2016. Pursuant to Rules of Practice for the
United States District Court, District of Arizona (Local
Rules), Rule (Civil) 72.1(a), she issued a Report and
Recommendation (R&R) on June 26, 2017. (Doc. 31:
R&R). She recommends this Court dismiss the Petition for
Writ of Habeas Corpus because it is time-barred.
duties of the district court, when reviewing a R&R of 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). When the parties object to the 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)). When no objections are filed, the district court
does not need to review the R&R de novo. 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).
parties were sent copies of the R&R and instructed they
had 14 days to file written objections. 28 U.S.C. §
636(b), see also, Federal Rule of Criminal Procedure
72 (party objecting to the recommended disposition has
fourteen (14) days to file specific, written objections). To
date, no objections have been filed.
Honorable Leslie A. Bowman, United States Magistrate Judge,
considered the one-year statute of limitation period for a
habeas claim and whether the limitation period was equitably
tolled. She found the Petition is barred because the limited
period for review began to run on the date the state court
judgment became final, which was December 1, 2011. It ran for
four days until December 5, 2015, when the defendant filed a
notice for post-conviction relief, which tolled the
limitation period until he was denied review on November 7,
2014. The limitation period began running again and the
one-year period expired on November 3, 2015. Therefore, the
Petition filed on October 3, 2016, is time-barred.
Court agrees for the reasons explained by the Magistrate
Judge that Petitioner's alleged lack of access to legal
materials and inability to speak English are not sufficient
to establish it was impossible to file his Petition on time.
See Lakey v. Hickman, 633 F.3d 782, 286
(9th Cir. 2011) (entitlement to equitable tolling
only if he pursued his rights diligently and some
extraordinary circumstances prevented timely filing).
to 28 U.S.C. § 636(b), this Court makes a de
novo determination as to those portions of the R&R
to which there are objections. 28 U.S.C. § 636(b)(1)
("A judge of the court shall make a de novo
determination of those portions of the report or specified
proposed findings and recommendations to which objection is
made.") To the extent that no objection has been made,
arguments to the contrary have been waived. 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); see also, 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).
there are no objections and review has, therefore, been
waived, the Court nevertheless reviews at a minimum, de
novo, the Magistrate Judge's conclusions of law.
Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir.
2007) (citing Turner v. Duncan, 158 F.3d 449, 455
(9th Cir. 1998) (conclusions of law by a magistrate judge
reviewed de novo); Martinez v. Ylst, 951 F.2d 1153,
1156 (9th Cir. 1991) (failure to object standing alone will
not ordinarily waive question of law, but is a factor in
considering the propriety of finding waiver)).
Court finds the R&R to be thorough and well-reasoned,
without any clear error in law or fact. See United States
v. Remsing, 874 F.2d 614, 617-618 (9th Cir. 1989)
(citing 28 U.S.C. § 636(b)(1)(A) (providing for district
court to reconsider matters delegated to magistrate judge
when there is clear error or recommendation is contrary to
law)). The Court accepts and adopts the R&R as the
opinion of the Court, pursuant to 28 U.S.C. § 636(b)(1).
For the reasons stated in the R&R, the Court dismisses
the Petition as time-barred.
IT IS ORDERED that the Report and
Recommendation [Doc. # 31] is adopted as the opinion of the
IS FURTHER ORDERED that the Clerk of the Court shall
enter Judgment accordingly.
IS FURTHER ORDERED that in the event 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 ...