Opinion
No. CV 11-088-TUC-FRZ
04-12-2012
Hector Jesus Espinoza-Beltran, Petitioner, v. Charles Ryan, et al, Respondents.
ORDER
Before the Court for consideration is the First Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 filed by Petitioner Hector Jesus Espinoza-Beltran and the Report and Recommendation of the Magistrate Judge, recommending that this Court issue an Order denying Petition for Writ of Habeas Corpus.
This matter was referred to Magistrate Judge Glenda E. Edmonds pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and report and recommendation.
Magistrate Judge Edmonds issued her Report and Recommendation, recommending that the District Court, after its independent review of the record, enter an order dismissing the Amended Petition for Writ of Habeas Corpus as time barred.
As set forth in detail in the Report and Recommendation, the limitation period for all of Espinoza-Beltran's claims commenced on September 18, 2001, "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). The one-year period expired on September 18, 2002. Espinoza-Beltran did not filed his federal petition for habeas relief until January 28, 2011. Accordingly, Magistrate Judge Edmonds properly concluded this present action is time barred.
The Report and Recommendation also advised that any party may serve and file written objections within 14 days of being served with a copy of this report and recommendation, pursuant to 28 U.S.C. §636 (b), and that, if objections are not timely filed, they may be deemed waived. No objections were filed.
The Court finds, after consideration of the matters presented and an independent review of the record herein, that the Petition should be denied as time barred and this action be dismissed as recommended.
In the event of an appeal, the Court finds that Petitioner has failed to make the requisite showing necessary to justify the issuance of a certificate of appealability. A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "[A] substantial showing of the denial of a constitutional right . . . includes showing that reasonable jurists could debate whether . . . 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, 483-84, 120 S.Ct. 1595, 1603-04 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4, 103 S.Ct. 3383, 3395 n.4 (1983)). See also Turner v. Calderon, 281 F.3d 851, 865 (9th Cir. 2002). "When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a [certificate of appealability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack, 529 U.S. at 484; 120 S.Ct 1604. Such has not been presented.
Based on the foregoing,
IT IS ORDERED that the Report and Recommendation (Doc. 16) is hereby ACCEPTED AND ADOPTED as the findings of fact and conclusions of law;
IT IS FURTHER ORDERED that the Amended Petitioner for Writ of Habeas Corpus (Doc. 6) is DENIED;
IT IS FURTHER ORDERED that the Motion to Amend/Correct Answer to Petition for Writ of Habeas Corpus (Doc. 14) is GRANTED;
IT IS FURTHER ORDERED that, in the event of an appeal, the Court finds there are no issues "adequate to deserve encouragement to proceed further" and thus, no certificate of appealability shall issue;
IT IS FURTHER ORDERED that Judgment be entered accordingly.
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Frank R. Zapata
Senior United States District Judge