- 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Michael D. McFarland, No. CV-22-00325-PHX-JJT (MTM) 10 Petitioner, ORDER 11 v. 12 David Shinn, et al., 13 Respondents. 14 15 At issue is the Report and Recommendation (Doc. 12, “R&R”) submitted by United 16 States Magistrate Judge Michael T. Morrissey recommending the Court deny and dismiss 17 as untimely and without excuse the Petition for Writ of Habeas Corpus pursuant to 28 18 U.S.C. § 2254 (Doc. 1). Judge Morrissey advised the parties they had 14 days after service 19 of the R&R to file any objections thereto, and warned that failure to timely object to the 20 R&R may result in acceptance of the Report and Recommendation by the District Court 21 without further review pursuant to United States v. Reyna-Tapia, 328 F. 3d 1114, 1121 (9th 22 Cir. 2003). (Doc. 12 at 7.) The time to file objections has passed and Petitioner filed none. 23 The Court therefore may accept the R&R and its underlying analysis. 24 Even upon an independent review of the R&R, the Court concludes it is correctly 25 decided. Petitioner’s state conviction became final for purposes of habeas review on 26 February 12, 2020. AEDPA’s one-year limitations period for seeking habeas review began 27 running the following day, and expired February 12, 2021. The Petition in this matter, filed 28 March 2, 2022, was therefore over a year late, and no statutory or equitable tolling is 1 || supported by any evidence. Petitioner also does not qualify for the “miscarriage of justice” || exception, as he has made no showing of “new reliable evidence of actual innocence” as 3 || required under Schlup v. Delo, 513 U.S. 298, 324 (1995). 4 IT IS ORDERED adopting in whole the R&R (Doc. 12) in this matter. 5 IT IS FURTHER ORDERED dismissing as untimely and denying with prejudice 6|| the Petition (Doc. 1). The Clerk of Court shall close this matter and enter judgment 7\| accordingly. 8 IT IS FURTHER ORDERED denying a Certificate of Appealability and leave to 9|| proceed in forma pauperis in this matter, as the Court finds that dismissal is justified by a 10 || plain procedural bar and reasonable jurists would not find the procedural ruling debatable. 11 Dated this 20th day of December, 2022. CN 12 “wok: 13 wef helee— Unifgd State#District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _2-
Document Info
Docket Number: 2:22-cv-00325-JJT
Filed Date: 12/20/2022
Precedential Status: Precedential
Modified Date: 6/19/2024