Alexander 106151 v. Shinn ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Larry S Alexander, No. CV-21-00389-PHX-DJH 10 Petitioner, ORDER 11 v. 12 David Shinn, et al., 13 Respondents. 14 15 Before the Court is Petitioner’s Amended Petition for Writ of Habeas Corpus 16 pursuant to 28 U.S.C. § 2254 (“Petition”) (Doc. 7) and the Report and Recommendation 17 (“R&R”) (Doc. 15) issued by United States Magistrate Judge Camille D. Bibles. Also 18 before the Court is an Appeal of Judge Bible’s denial of Petitioner’s Motion to Appoint 19 Counsel. (Doc. 13). 20 I. The R&R 21 After consideration of the issues raised in the Petition, Judge Bibles concluded in 22 her R&R that the Petition was untimely because Petitioner had filed it 23 years after the 23 one-year statute of limitations in the Antiterrorism and Effective Death Penalty Act 24 (“AEDPA”) had expired. (Doc. 15 at 5). She further found that equitable tolling was not 25 available to Petitioner, and that federal review of his habeas claims was not warranted 26 under the “actual innocence gateway” because Petitioner had not presented any new, 27 reliable evidence establishing that he is factually innocent of his crimes. (Id. at 7). 28 Accordingly, Judge Bibles recommends the Petition be denied. (Id. at 8). 1 Judge Bibles advised the parties that they had fourteen days to file objections and 2 that the failure to timely do so “will be considered a waiver of a party’s right to de novo 3 appellate consideration of the issues.” (Id. at 8) (citing United States v. Reyna-Tapia, 328 4 F.3d 1114, 1121 (9th Cir. 2003) (en banc)). Neither Petitioner nor Respondents have filed 5 an objection and the time to do so has expired. 6 Absent any objections, the Court is not required to review the findings and 7 recommendations in the R&R. See Thomas v. Arn, 474 U.S. 140, 149 (1989) (noting that 8 the relevant provision of the Federal Magistrates Act, 28 U.S.C. § 636(b)(1), “does not on 9 its face require any review at all . . . of any issue that is not the subject of an objection.”); 10 Reyna-Tapia, 328 F.3d at 1121 (same); Fed.R.Civ.P. 72(b)(3) (“The district judge must 11 determine de novo any part of the magistrate judge’s disposition that has been properly 12 objected to.”). Nonetheless, the Court has reviewed Judge Bibles’s well-reasoned R&R 13 and agrees with its findings and recommendations. The Court will, therefore, accept the 14 R&R and dismiss the Petition. See 28 U.S.C. § 636(b)(1) (“A judge of the court may 15 accept, reject, or modify, in whole or in part, the findings or recommendations made by the 16 magistrate judge.”); Fed.R.Civ.P. 72(b)(3) (same). 17 II. Petitioner’s Appeal 18 Prior to the issuance of her R&R, Judge Bibles denied Petitioner’s Motion to 19 Appoint Counsel, finding that Petitioner had “been able to articulate his claims for federal 20 habeas relief and that the legal issues are not unusually complex.” (Doc. 11 at 2). Petitioner 21 then filed a “Motion to Appeal the Judgment of this Case” (Doc. 13), which Judge Bibles 22 construed as an appeal of her Order denying Petitioner’s request to appoint counsel (Doc. 23 14). 24 “A district judge may reconsider a magistrate’s order in a pretrial matter if that order 25 is ‘clearly erroneous or contrary to law.’” Osband v. Woodford, 290 F.3d 1036, 1041 (9th 26 Cir. 2002) (quoting 28 U.S.C. § 636(b)(1)(A)); see Grimes v. City & County of S.F., 951 27 F.2d 236, 240 (9th Cir. 1991) (“The district court shall defer to the magistrate’s orders 28 unless they are clearly erroneous or contrary to law.”) (citing Fed.R.Civ. P. 72(b)). 1 Petitioner points to no error in Judge Bibles’s Order denying the appointment of 2|| counsel, but only requests the Court “grant this motion to proceed with right to appeal this || case in the US Court of Appeal...” (Doc. 13 at 2). The Court has reviewed the Order and 4|| finds no error in Judge Bibles’ ruling on the Motion to Appoint Counsel. Moreover, to the 5 || extent Petitioner’s Appeal is more accurately characterized as a request for certificate of || appealability, 1t is also denied. His habeas claims are procedurally barred, and Petitioner || cannot show that reasonable jurist would find the ruling debatable. 8 Accordingly, 9 IT IS ORDERED that Magistrate Judge Bibles’s Report and Recommendation (Doc. 15) is ACCEPTED and ADOPTED as the Order of this Court. 11 IT IS FURTHER ORDERED that the Amended Petition for Writ of Habeas 12 || Corpus pursuant to 28 U.S.C. § 2254 (Doc. 7) is DENIED. 13 IT IS FURTHER ORDERED that Petitioner’s Appeal (Doc. 13) is DENIED. 14 IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing 15 || Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis 16 || onappeal are DENIED because dismissal of the Petitioner is justified by a plain procedural || bar and reasonable jurists would not find the ruling debatable, nor has he made a substantial 18 || showing of the denial of a constitutional right. 19 IT IS FINALLY ORDERED that the Clerk of the Court shall terminate this action || and enter judgment accordingly. 21 Dated this 5th day of November, 2021. 22 23 5 fe □□ 24 norable' Diang/4. 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