United States District Court, D. Arizona
Honorable David C. Bury United States District Judge.
matter was referred to Magistrate Judge Bruce G. Macdonald,
pursuant to Rules of Practice for the United States District
Court, District of Arizona (Local Rules), Rule (Civil)
72.1(a). On January 22, 2019, Magistrate Judge Macdonald
issued a Report and Recommendation (R&R). He recommends
that the Court deny the Petition filed under U.S.C. §
2254 for Writ of Habeas Corpus by a person in State custody.
The Magistrate Judge found the Petition was barred by the
one-year statute of limitation under the Anti-terrorism and
Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. §
2244(d)(1). The Court 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 as
duties of the district court in connection with a 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 a 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 Objection filed by the Plaintiff, the
Reply filed by the Defendants, and the parties' briefs
considered by the Magistrate Judge in deciding the Petition.
Petitioner's Objection, he argues the merits of his
Petition. Specifically, he argues that the Arizona courts got
it wrong when they refused to apply Martinez v.
Ryan, 566 U.S. 1 (2012) to excuse preclusion related to
his claim of ineffective assistance of counsel in his Rule 32
proceeding. Unfortunately, the Petitioner cannot get review
here on the merits of his Petition because, as the Magistrate
Judge explained, his Petition is barred by AEDPA's the
one-year statute of limitation period. (R&R (Doc. 16) at
Court agrees with the Magistrate Judge that the Petition is
time barred. Magistrate Judge Macdonald issued a
well-reasoned R&R, which explains why as a matter of law
and fact the case is barred by the one-year statute of
limitation, including a correct analysis of the time-bar as
tolled in this case.
de novo review of the issues raised in the
Plaintiffs Objection, this Court agrees with the findings of
fact and conclusions of law made by the Magistrate Judge in
the R&R for determining the Petition. The Court adopts
it, and for the reasons stated in the R&R, the Court
denies Plaintiffs Petition for habeas relief.
IS ORDERED that after a full and independent review
of the record, in respect to the Objection, the Magistrate
Judge's Report and Recommendation (Doc. 16) is accepted
and adopted as the findings of fact and conclusions of law of
IS FURTHER ORDERED that Petition Under 28 U.S.C.
§ 2254 for a Writ of Habeas Corpus by a Person in ...