Gaxiola 145852 v. Thornell

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

9 Francisco Gaxiola, No. CV-24-02221-PHX-JJT (MTM) 10 Petitioner, ORDER v. Ryan Thornell, et al., 13 Respondents.

15 Before the Court is the Report and Recommendation (Doc. 17, “R&R”) of United States Magistrate Judge Michael T. Morrissey. The R&R concludes the Court should dismiss with prejudice Francisco Gaxiola’s Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Doc. 1, “Petition”) as untimely and without entitlement to equitable tolling. In the R&R, Judge Morrissey warned the parties that they had fourteen days from the date of service of the R&R to file any specific written objections to it with the Court. Judge Morrissey further warned that “failure to timely file objections [to the R&R] may result in the acceptance of [it] by the District Court without further review.” (R&R at 9.) It has now been three months since entry of the R&R and Petitioner Gaxiola has filed no objections thereto. The Court is thus empowered to accept the recommendations without further review. It nonetheless elects to conduct a review of the recommendations on their merits; upon doing so, the Court concludes that adoption of Judge Morrissey’s recommendations, as well as his reasoning as set forth in the concise but thorough R&R, is justified.

1 Petitioner’s state conviction for robbery became final for purposes of AEDPA! on 2|| June 20, 2020, when the Arizona Court of Appeals affirmed his conviction and sentence || and thirty days had elapsed thereafter without him seeking review by the Arizona Supreme Court. At that point, AEDPA’s one-year limitations period began to run, and did run for || 34 days until it was tolled by Petitioner’s timely PCR filing in the state trial court. The || AEDPA limitations period resumed running on February 27, 2023, when the state court || dismissed the PCR proceedings and Petitioner did not seek further review there. It ran for || another 331 days, until January 25, 2024, when the limitations period exhausted. Petitioner 9|| did not file the instant Petition until August 21, 2024, nearly seven months too late. || Judge Morrissey correctly determined that Petitioner did not state adequate basis for |} equitable tolling of the AEDPA limitations period, because Petitioner’s lack of awareness of the limitations period is not an external force and in any event is not an extraordinary || circumstance. E.g., Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006). And Petitioner presents no new and reliable evidence of actual innocence to trigger review under || Schlup v. DeLo, 513 U.S. 298 (1995). For these reasons, 16 IT IS ORDERED adopting in whole the R&R (Doc. 17) submitted by || Judge Morrissey and dismissing with prejudice the Petition under 28 U.S.C. § 2254 for a || Writ of Habeas Corpus by a Person in State Custody (Doc. 1) as untimely and not subject to equitable tolling.

20 IT IS FURTHER ORDERED denying a certificate of appealability, as the Court || concludes dismissal is justified by a plain procedural bar and reasonable jurists would not find the procedural ruling debatable. The Clerk of Court shall enter judgment and terminate || this matter.

24 Dated this 15th day of April, 2025. CN 26 wef holee— Unifga State#District Judge ' Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. Section 2241 et seq. _2-