Filed: Aug. 05, 2019
Latest Update: Aug. 05, 2019
Summary: ORDER JOHN J. TUCHI , District Judge . At issue is the Report and Recommendation (Doc. 22) ("R&R") entered by United States Magistrate Judge John Z. Boyle in this matter recommending the Court dismiss Armando Gamboa-Molina's Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 2254 (Doc. 17) and deny his Petition for Affirmative Injunction (Doc. 8) in the same matter. Petitioner was warned in the R&R that he had 14 days from its entry on July 12, 2019, in which to file any objec
Summary: ORDER JOHN J. TUCHI , District Judge . At issue is the Report and Recommendation (Doc. 22) ("R&R") entered by United States Magistrate Judge John Z. Boyle in this matter recommending the Court dismiss Armando Gamboa-Molina's Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 2254 (Doc. 17) and deny his Petition for Affirmative Injunction (Doc. 8) in the same matter. Petitioner was warned in the R&R that he had 14 days from its entry on July 12, 2019, in which to file any object..
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ORDER
JOHN J. TUCHI, District Judge.
At issue is the Report and Recommendation (Doc. 22) ("R&R") entered by United States Magistrate Judge John Z. Boyle in this matter recommending the Court dismiss Armando Gamboa-Molina's Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 2254 (Doc. 17) and deny his Petition for Affirmative Injunction (Doc. 8) in the same matter. Petitioner was warned in the R&R that he had 14 days from its entry on July 12, 2019, in which to file any objections thereto. (Doc. 22 at 10.) That deadline passed and Petitioner has filed no objections. The Court may therefore accept the R&R without further review. United States v. Tapia-Reyna, 328 F.3d 1114, 1121 (9th Cir. 2003). The Court nonetheless has conducted a substantive review of the Petition and the timeline of all filings since the underlying state conviction, and concludes that Judge Boyle's R&R, and all of its reasoning, is correct.
As Judge Boyle found, Petitioner's convictions at issue became final May 7, 2010, one month after the mandate issued from the Arizona Court of Appeals. Under the applicable law Petitioner had one year from that date, or until May 7, 2011, to file his Petition in this matter. He did not file his Petition until January 24, 2019. While Petitioner did file for post-conviction relief review in the state court, he did so untimely, as the state court found, and therefore his invalid PCR petition did not operate to statutorily toll the time. His habeas Petition was therefore nearly eight years too late. As Judge Boyle found, he does not qualify for equitable tolling.
IT IS ORDERED adopting in whole Judge Boyle's R&R (Doc. 22) and dismissing as untimely and denying with prejudice the Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 2254 (Doc. 11).
IT IS FURTHER ORDERED denying the Petition for Affirmative Injunction (Doc. 8).
IT IS FURTHER ORDERED denying a Certificate of Appealability and leave to proceed in forma pauperis. Dismissal of the Petition is justified by a plain procedural bar, reasonable jurists would not find the ruling here debatable, and Petitioner has not made a substantial showing of the denial of a Constitutional right. The Clerk shall close this matter.
