United States District Court, D. Arizona
A. Teilborg, Judge
before the Court is the Report and Recommendation
(“R&R”) from the Magistrate Judge
recommending that the Petition for Writ of Habeas Corpus in
this case be denied. (Doc. 26). Petitioner objected to the
R&R. (Doc. 27). Respondents replied to the objection.
(Doc. 28). Although the rules do not permit it, Petitioner
objected to Respondents' reply. (Doc. 29). Because
Respondents submitted new evidence with the reply, the Court
will consider Petitioner's additional objection. (Doc.
Court “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). It is “clear
that the district judge must review the magistrate
judge's findings and recommendations de novo if objection
is made, but not otherwise.” United States v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en
banc) (emphasis in original); Schmidt v. Johnstone,
263 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (“Following
Reyna-Tapia, this Court concludes that de novo
review of factual and legal issues is required if objections
are made, ‘but not otherwise.'”); Klamath
Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt.,
589 F.3d 1027, 1032 (9th Cir. 2009) (the district court
“must review de novo the portions of the [Magistrate
Judge's] recommendations to which the parties
object.”). District courts are not required to conduct
“any review at all . . . of any issue that is not the
subject of an objection.” Thomas v. Arn, 474
U.S. 140, 149 (1985) (emphasis added); see also 28
U.S.C. § 636(b)(1) (“the court shall make a de
novo determination of those portions of the [report and
recommendation] to which objection is made.”).
Statute of Limitations
R&R explains, the Petition in this case was subject to a
one-year statute of limitations and was not timely filed.
(Doc. 26 at 5-7). In his objections, Petitioner does not
dispute this conclusion. However, he suggests he should
receive the benefit of equitable tolling of the statute of
limitations because the prison law library did not contain
the Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”) so that he could research and comply
with the statute of limitations. (Doc. 27 at 2).
replies to this objection and makes two arguments. First,
Respondent provides a copy of the legal materials available
in the law library. (Doc. 28-1 at 1-12). Included in these
materials is 28 U.S.C. § 2254, which is the legal
standard governing state habeas petitions. Thus, Petitioner
did have access to at least part of the AEDPA. However,
nothing on the face of this list proves that Petitioner had
access to 28 U.S.C. § 2244, which contains the statute
Respondents argue that in Petitioner's original filing in
this case, captioned as a motion to stay, Petitioner
acknowledged the AEDPA's one-year statute of limitations.
(Doc. 1 at 1-2 (“But by that time my 1 year will be up
that allows me to present my petition to the Federal Courts.
… I just don't have enough time to get everything
done before my 1-year will be up.”)). This motion to
stay was filed August 22, 2017, a month before the statue of
limitations expired on September 23, 2017. (See Doc.
26 at 7). Thus, Petitioner was aware of the statute of
limitations and had the opportunity to file within the
statute of limitations but did not. Accordingly,
Petitioner's claimed lack of access to legal resources is
not a basis to equitably toll the statute of limitations
because Petitioner had actual knowledge of the statute of
limitations. See Whalem/Hunt v. Early, 233 F.3d
1146, 1147 (9th Cir. 2000) (remanding for an evidentiary
hearing when Petitioner expressly stated that he had no
knowledge of the AEDPA's statute of limitations); Roy
v. Lampert, 465 F.3d 964, 974 (9th Cir. 2006) (same).
Petitioner's Petition is barred by the statute of
limitations. (Doc. 26 at 5-8). As a result, the Petition in
this case will be dismissed as untimely.
Exhaustion and Procedural Default
Alternatively, the R&R recommends that this Court find
that even if the Petition in this case was timely, Petitioner
is not entitled to relief. (Doc. 26 at 8-18). Petitioner does
not object to this alternative recommendation. Accordingly,
the Court hereby accepts and adopts it. See
Reyna-Tapia, 328 F.3d 1114 at 1121.
Petition in this case is dismissed because it is barred by
the statute of limitations. Alternatively, even if the
Petition were timely, it is dismissed because the claims in
the Petition are procedurally defaulted without excuse.
Therefore, IT IS ORDERED that the Report and
Recommendation (Doc. 26) is accepted; the objections are
overruled; the Petition in this case is denied and dismissed
with prejudice and the Clerk of the Court shall enter
IS FURTHER ORDERED that pursuant to Rule 11 of the
Rules Governing Section 2254 Cases, in the event Petitioner
files an appeal, the Court denies issuance of a certificate
of appealability because dismissal of the petition is based
on two plain procedural bars and jurists of reason would not
find this ...