Elawyers Elawyers
Ohio| Change

Hernandez v. Ryan, CV-17-03132-PHX-JJT (MHB). (2018)

Court: District Court, D. Arizona Number: infdco20181221c38 Visitors: 18
Filed: Dec. 20, 2018
Latest Update: Dec. 20, 2018
Summary: ORDER JOHN J. TUCHI , District Judge . At issue is the Report and Recommendation ("R&R")(Doc. 15) submitted by United States Magistrate Judge Michelle H. Burns, recommending that the Court dis miss the Petition. Petitioner timely filed two Objections (Doc. 16), which the Court has considered. After straightforward but thorough analysis, Judge Burns's R&R correctly concludes that the Petition must be dismissed as untimely. Petitioner waived his right to appeal in the underlying state crimin
More

ORDER

At issue is the Report and Recommendation ("R&R")(Doc. 15) submitted by United States Magistrate Judge Michelle H. Burns, recommending that the Court dis miss the Petition. Petitioner timely filed two Objections (Doc. 16), which the Court has considered.

After straightforward but thorough analysis, Judge Burns's R&R correctly concludes that the Petition must be dismissed as untimely. Petitioner waived his right to appeal in the underlying state criminal matter pursuant to his plea agreemen. Thus his conviction became final for purposes of seeking post-conviction relief 90 days after he was sentenced and judgment was entered on April 13, 2010. Thus he had until July 12, 2010 to file an "of-right" PCR petition. He did not so file any petition until January 6, 2017— six and one half years too late. His conviction became final for purposes of filing Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in this Court on July 13, 2010 and expired a year later on July 13, 2011. He did not file his Petition in this Court until September 11, 2017—over six years too late. No tolling applies because Petitioner filed no petitions with any court within the prescribed time limitations so none were or would be valid and operate to toll time. Finally, the Court agrees with Judge Burns that Petitioner has shown no excuse or cause for his delay in filing. As a result the Court must deny and dismiss as untimely the Petition.

In his Objections, Petitioner does not meet any of the points of Judge Burns's analysis regarding the operation of the deadlines imposed by AEDPA or by Arizona Rule of Criminal Procedure 32. He does not challenge the provisions of Rule 32 or Section 2254, including their timelines and triggers; nor does he attempt to point out some mistake Judge Burns made in applying them or reaching the conclusion she did.

IT IS ORDERED overruling Petitioner's Objections (Doc. 16) and adopting the R&R (Doc. 15) in this matter.

IT IS FURTHER ORDERED denying and dismissing with prejudice Petitioner's Petition for Writ of Habeas Corpus (Doc. 1).

IT IS FURTHER ORDERED denying a Certificate of Appealability and leave to proceed in forma pauperis on appeal because the Court finds dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable.

IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment accordingly and terminate this matter.

Source:  Leagle

Can't find what you're looking for?

Post a free question on our public forum.
Ask a Question
Search for lawyers by practice areas.
Find a Lawyer