Dixon v. Arizona Department of Corrections

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

9 Howard H. Dixon, No. CV-20-00962-PHX-JJT (JZB) 10 Petitioner, ORDER v. Arizona Department of Corrections, 13 Respondent.

15 At issue is the Report and Recommendation (Doc. 13, “R&R”) issued by United States Magistrate Judge John Z. Boyle recommending that the Court deny and dismiss with prejudice the Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.

18 (Doc. 5.) In the R&R, Judge Boyle warned Petitioner he had 14 days from its service to file any objections, and his failure to do so could result in this Court accepting the R&R without further review and deciding the matter accordingly. (R&R at 9-10.)

21 It has now been over 42 days since the R&R was served via ECF to Petitioner, and he has filed no Objections. The Court thus accepts and adopts in whole the R&R. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Even if it had reviewed the R&R on its merits, the Court would conclude Judge Boyle correctly analyzed the timeline of prior proceedings under the applicable state and federal law and concluded that Petitioner failed to exhaust any of the three claims he put forth in the Petition. Those claims are procedurally defaulted at the state due to his inaction during the permissible time frame, and he cannot cure the default. He has presented no cognizable excuse to allow equitable tolling.

1 IT IS ORDERED adopting in whole the Report and Recommendation. (Doc. 13.)

2 IT IS FURTHER ORDERED denying and dismissing with prejudice the Amended || Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 5.)

4 IT IS FURTHER ORDERED denying a certificate of appealability and leave to || proceed in forma pauperis. Dismissal of this Amended Petition is justified by a plain || procedural bar. Reasonable jurists would not find the ruling debatable.

7 Dated this 9th day of December, 2020. CN 9 wefhelee— Unifgd State#District Judge -2-