Opinion
CV-22-01327-PHX-ROS (JFM)
06-13-2023
Anthony Allen Thomas, Petitioner, v. David Shinn, et al., Respondents.
ORDER
HONORABLE ROSLYN O. SILVER, SENIOR UNITED STATES DISTRICT JUDGE
Petitioner Anthony Allen Thomas filed an Amended Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 stating the Arizona Department of Corrections advised him he would be placed on probation after completing his current sentence. Because Petitioner is currently in prison due to having his probation revoked, Petitioner claims the future term of probation would, somehow, violate his “double jeopardy” rights. (Doc. 4). Petitioner asserts he was told during a meeting in June 2019 that he would be placed on probation upon his release. (Doc. 17 at 3). According to a declaration filed by a prison employee, the Arizona Department of Corrections had not updated its internal database at the time of that conversation, so it contained inaccurate information. Upon updating the database with the correct sentencing order from Petitioner's 2019 probation revocation, the future probation term was “canceled.” (Doc. 18 at 6).
Petitioner's original petition was dismissed with leave to amend for failure to use the correct form. (Doc. 3). On screening the amended petition, the Court dismissed Petitioner's first count for failure to state a claim. (Doc. 6).
On May 12, 2023, Magistrate Judge James F. Metcalf issued a Report and Recommendation (“R&R”) recommending Petitioner's amended petition be denied and dismissed with prejudice because it was untimely. The petition was filed nearly three years after Petitioner first learned about the probation term that supposedly would violate his “double jeopardy” rights. Pursuant to 28 U.S.C. § 2244(d)(1), there is a one-year statute of limitations for petitions brought by a person in custody pursuant to the judgment of a State Court.
Petitioner's objections were due within fourteen days of the R&R being served. (Doc. 20 at 10-11). Petitioner did not file any objections.
The R&R will be adopted in full.
Accordingly, IT IS ORDERED the Report and Recommendation (Doc. 20) is ADOPTED IN FULL.
IT IS FURTHER ORDERED the Amended Petition for Writ of Habeas Corpus (Doc. 4) is DENIED and DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED a Certificate of Appealability is DENIED because dismissal of the amended petition is justified by a plain procedural bar and reasonable jurists would not find the procedural ruling debatable.
IT IS FURTHER ORDERED the Clerk of Court shall close this matter.