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Prior v. Ryan

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA
Apr 17, 2012
No. CV 10-225-TUC-RCC (D. Ariz. Apr. 17, 2012)

Summary

reviewing for clear error unobjected-to portions of Report and Recommendation

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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).

____________

Raner C. Collins

United States District Judge


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Prior v. Ryan

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA
Apr 17, 2012
No. CV 10-225-TUC-RCC (D. Ariz. Apr. 17, 2012)

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Case details for

Prior v. Ryan

Case Details

Full title:Malik Cornell Prior, Petitioner, v. Charles L. Ryan, et al., Respondent.

Court:UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Date published: Apr 17, 2012

Citations

No. CV 10-225-TUC-RCC (D. Ariz. Apr. 17, 2012)

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