McFarland 036919 v. Shinn

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

9 Michael D. McFarland, No. CV-22-00325-PHX-JJT (MTM) 10 Petitioner, ORDER v. David Shinn, et al., 13 Respondents.

15 At issue is the Report and Recommendation (Doc. 12, “R&R”) submitted by United States Magistrate Judge Michael T. Morrissey recommending the Court deny and dismiss as untimely and without excuse the Petition for Writ of Habeas Corpus pursuant to 28 18 U.S.C. § 2254 (Doc. 1). Judge Morrissey advised the parties they had 14 days after service of the R&R to file any objections thereto, and warned that failure to timely object to the R&R may result in acceptance of the Report and Recommendation by the District Court without further review pursuant to United States v. Reyna-Tapia, 328 F. 3d 1114, 1121 (9th Cir. 2003). (Doc. 12 at 7.) The time to file objections has passed and Petitioner filed none.

23 The Court therefore may accept the R&R and its underlying analysis.

24 Even upon an independent review of the R&R, the Court concludes it is correctly decided. Petitioner’s state conviction became final for purposes of habeas review on February 12, 2020. AEDPA’s one-year limitations period for seeking habeas review began running the following day, and expired February 12, 2021. The Petition in this matter, filed March 2, 2022, was therefore over a year late, and no statutory or equitable tolling is || supported by any evidence. Petitioner also does not qualify for the “miscarriage of justice” || exception, as he has made no showing of “new reliable evidence of actual innocence” as || required under Schlup v. Delo, 513 U.S. 298, 324 (1995).

4 IT IS ORDERED adopting in whole the R&R (Doc. 12) in this matter.

5 IT IS FURTHER ORDERED dismissing as untimely and denying with prejudice 6|| the Petition (Doc. 1). The Clerk of Court shall close this matter and enter judgment 7\| accordingly.

8 IT IS FURTHER ORDERED denying a Certificate of Appealability and leave to 9|| proceed in forma pauperis in this matter, as the Court finds that dismissal is justified by a || plain procedural bar and reasonable jurists would not find the procedural ruling debatable.

11 Dated this 20th day of December, 2022. CN 12 “wok: 13 wef helee— Unifgd State#District Judge _2-