Rivera 121499 v. Shinn

1 WO 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Jose Alfredo Rivera, No. CV-19-05263-PHX-ROS 10 Petitioner, ORDER v. David Shinn, 13 Respondent.

15 On May 15, 2020, Magistrate Judge Deborah M. Fine issued a Report and Recommendation (“R&R”). (Doc. 15). The R&R recommends denial of the petition for writ of habeas corpus, reasoning the petition is untimely by more than five years. Petitioner filed objections but those objections do not address the timeliness issue. (Doc. 18).

19 Instead, the objections merely argue the merits of Petitioner’s claims. The Court cannot reach the merits of the claims because the petition is untimely.

21 Petitioner’s convictions became final in December 2012 but he did not file his federal petition until September 2019. Petitioner appears to claim his mental illness prevented him from timely filing. Petitioner attached to his objections a statement from a prison official stating that, as of April 2013, Petitioner was “demonstrating stability off psychotropic medication” and he “no longer needed mental health services.” (Doc. 18 at 12). Thus, Petitioner’s mental illness is not “extraordinary circumstances” that excuse the late filing of his federal petition. See Smith v. Davis, 953 F.3d 582, 588 (9th Cir. 2020) (“A petitioner seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.”’).

3 Accordingly, 4 IT IS ORDERED the Report and Recommendation (Doc. 15) is ADOPTED. The || petition for writ of habeas corpus (Doc. 1, 8) is DISMISSED WITH PREJUDICE.

6 IT IS FURTHER ORDERED a Certificate of Appealability is denied because dismissal of the Petition 1s justified by a plain procedural bar and reasonable jurists would || not find the procedural ruling debatable.

9 Dated this 13th day of August, 2020.

10 fo - 11 — : 3 Senior United States District Judge _2-