Summary
reviewing for clear error unobjected-to portions of Report and Recommendation
Summary of this case from Noriega v. Comm'r of Soc. Sec. Admin.Opinion
No. CV 10-225-TUC-RCC
04-17-2012
Malik Cornell Prior, Petitioner, v. Charles L. Ryan, et al., Respondent.
ORDER
On April 21, 2010 Petitioner filed a Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody. (Doc. 1). The Petition was dismissed with leave to amend. (Doc. 3). Petitioner filed his First Amended Petition on June 3, 2010. (Doc. 5). The Petition was fully briefed, and the Honorable Bernardo P. Velasco, United States Magistrate Judge, filed a Report and Recommendation (Recommendation) in this action, which advised the Court to deny the Petition. (Doc. 17). The Court will adopt the Recommendation and deny the Petition.
The Recommendation advised the Court to find (1) the Petition was timely as to all claims except the fourth, (2) the first and second grounds were procedurally defaulted because Petitioner did not articulate federal law as the basis for the claims raised in state court, and (3) the state court reasonably applied Blakely v. Washington, 542 U.S. 296 (2004). Relying on Hemmerle v. Schriro, 495 F.3d 1069 (9th Cir. 2007), Respondent objected and argued the Petition was not timely because it was not filed within one year of the Arizona Court of Appeals' denial of post-conviction relief. (Doc. 18).
The Court reviews this portion of the Recommendation de novo, United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc), and finds Respondent's arguments unpersuasive. As explained in Celaya v. Stewart, 691 F.Supp.2d 1046 (D.Ariz. 2010), the statute of limitations in habeas cases is tolled pending resolution of post-conviction proceedings. In Arizona, if the Arizona Court of Appeals grants review but denies relief, a petition for post-conviction relief is final after the required mandate issues. Id. at 1053-54. The Court adopts the Recommendation as to this issue.
No other objections remaining, the Court reviews the remainder of the Recommendation for clear error. See Advisory Committee Notes to Fed.R.Civ.P. 72 (citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir.1974)). Finding none, the Court adopts the Recommendation as to the remaining issues. Accordingly,
The Court ACCEPTS the Recommendation of Magistrate Judge Velasco. (Doc. 17).
IT IS ORDERED that the Petitioner is DENIED. (Doc. 3).
IT IS FURTHER ORDERED denying Petitioner a Certificate of Appealability because reasonable jurists would not find it debatable whether the Court was correct in its procedural rulings, that the petition should have been resolved in a different manner, or that the issues presented were "adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000).
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Raner C. Collins
United States District Judge