United States District Court, D. Arizona
HONORABLE JENNIFER G. ZIPPS, UNITED STATES DISTRICT JUDGE.
before the Court is a Report and Recommendation issued by
United States Magistrate Eric J. Markovich that recommends
denying Petitioner's Habeas Petition filed pursuant to 28
U.S.C. §2254. (Doc. 18.) Petitioner filed an Objection
to the R&R on August 7, 2017. (Doc. 19.) For the reasons
stated herein, the Court will deny the Objection and adopt
reviewing a Magistrate Judge's Report and Recommendation,
this Court “shall make a de novo determination of those
portions of the report ... to which objection is made,
” and “may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1)(C);
see also Baxter v. Sullivan, 923 F.2d 1391, 1394
(9th Cir. 1991) (citing Britt v. Simi Valley Unified Sch.
Dist., 708 F.2d 452, 454 (9th Cir. 1983)). Failure to
object to a Magistrate Judge's recommendation relieves
the Court of conducting de novo review of the Magistrate
Judge's factual findings; the Court then may make a
ruling based on applicable law. Orand v. United
States, 602 F.2d 207, 208 (9th Cir. 1979) (citing
Campbell v. United States Dist. Ct., 501 F.2d 196
(9th Cir. 1974)).
explained by Magistrate Judge Markovich, Petitioner's
habeas petition is untimely, is procedurally defaulted, and
is not subject to statutory or equitable tolling.
Petitioner's judgment became final on April 29, 2008 when
his time for seeking appellate review expired. See
28 U.S.C § 2244(d)(1)(A); Gonzalez v. Thaler,
132 S.Ct. 641 (2012). The one-year limitations period
commenced on April 30, 2008 and expired on April 30, 2009,
more than five years before the instant § 2254 petition
was filed. See Patterson v. Steward, 251 F.3d 1243,
1245-47 (9th Cir. 2001). Petitioner's second notice of
post-conviction relief (Doc. 16 Ex. J) was untimely filed and
Petitioner has pled no conditions under Arizona Rules of
Criminal Procedure 32.2(b) under which his untimely claims
might be heard. Therefore, Petitioner's second notice
for post-conviction relief is not subject to statutory
tolling. Banjo v. Ayers, 614 F.3d 964, 968 (9th Cir.
2010). Furthermore, Petitioner has failed to meet the high
threshold necessary to trigger equitable tolling under the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). 28 U.S.C. § 2244; see Spitsyn
v. Moore, 345 F.3d 796, 799 (9th Cir. 2003).
Petitioner's objections do not undermine the analysis and
proper conclusion reached by Magistrate Judge Markovich,
Petitioner's objections are rejected and the Report and
Recommendation is adopted.
Petitioner can appeal this Court's judgment, a
certificate of appealability must issue. See Fed. R.
App. P. 22(b)(1) (the applicant cannot take an appeal unless
a circuit justice or a circuit or district judge issues a
certificate of appealability under 28 U.S.C. § 2253(c)).
Additionally, 28 U.S.C. §2253(c)(2) provides that a
certificate may issue only if the applicant has made a
substantial showing of the denial of a constitutional right.
In the certificate, the court must indicate which specific
issues satisfy this showing. See 28 U.S.C.
§2253(c)(3). A substantial showing is made when the
resolution of an issue of appeal is debatable among
reasonable jurists, if courts could resolve the issues
differently, or if the issue deserves further proceedings.
See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).
Upon review of the record in light of the standards for
granting a certificate of appealability, the Court concludes
that a certificate shall not issue as the resolution of the
petition is not debatable among reasonable jurists and does
not deserve further proceedings.
IT IS HEREBY ORDERED as follows:
1. The Report and Recommendation (Doc. 18) is accepted and
2. Petitioner's §2254 Petition (Doc. 1) is denied;
3. A Certificate of Appealability is denied and shall not
4. Leave to proceed in forma pauperis on appeal is denied
5. This case is dismissed. The Clerk of the Court shall enter
judgment accordingly and close the file in this matter.