Cota v. Schriro et al, No. 2:2008cv00565 - Document 15 (D. Ariz. 2008)
Court Description: MEMORANDUM OF DECISION AND ORDER ADOPTING REPORT AND RECOMMENDATION. The Court adopts the 13 Report and Recommendation of the Magistrate Judge; the 1 Petition for Writ of Habeas Corpus is denied and this action is dismissed with prejudice. Signed by Judge Stephen M McNamee on 11/25/08. (REW, )
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Manuel Robles Cota, 10 Petitioner, 11 v. 12 Dora Schriro, et al., 13 Respondents. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV 08-0565-PHX-SMM (MEA) MEMORANDUM OF DECISION AND ORDER 15 Pending before the Court is Petitioner Manuel Robles Cota s Petition for Writ of 16 Habeas Corpus pursuant to 28 U.S.C. § 2254 (the Petition ) (Dkt. 1). The matter was 17 referred to the magistrate judge for a Report and Recommendation. On October 24, 2008, 18 the magistrate judge filed a Report and Recommendation with this Court recommending that 19 the Petition be denied on its merits (Dkt. 13). On November 3, 2008, Mr. Cota filed his 20 Objection to the Report and Recommendation (Dkt. 14). The government did not respond 21 to Mr. Cota s Objection. After considering the Report and Recommendation and the 22 arguments raised in Mr. Cota s Objection thereto, the Court now issues the following ruling. 23 STANDARD OF REVIEW 24 When reviewing a Magistrate Judge s Report and Recommendation, this Court shall 25 make a de novo determination of those portions of the report . . . to which objection is made, 26 and may accept, reject, or modify, in whole or in part, the findings or recommendations 27 made by the magistrate. 28 U.S.C. § 636(b)(1)(C); see also Baxter v. Sullivan, 923 F.2d 28 1 1391, 1394 (9th Cir. 1991) (citing Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 2 (9th Cir. 1983)). DISCUSSION1 3 4 In his Petition, Mr. Cota challenges his conviction by the Maricopa County Superior 5 Court, CR 2002-012505, pursuant to his guilty plea in that matter (Dkt. 1). Petitioner s 6 conviction became final on or about February 24, 2003. More than five years later, Petitioner 7 filed his Petition on March 26, 2008. The Magistrate Judge found that the one-year statute 8 of limitations in the Antiterrorism and Effective Death Penalty Act ( AEDPA ) barred the 9 Petition. The Magistrate Judge concluded that no statutory tolling applied because Petitioner 10 did not properly file an action for state post-conviction relief. The Magistrate Judge also 11 concluded that no equitable tolling applied because Petitioner did not meet his burden of 12 establishing extraordinary circumstances beyond his control made it impossible for him to 13 file the Petition on time. 14 Petitioner generally objects to every factual finding and legal conclusion made by the 15 Magistrate Judge. Petitioner specifically objects to the Report and Recommendation on the 16 ground that equitable tolling should apply. Petitioner contends that under Roy v. Lampert, 17 465 F. 3d 964 (9th Cir. 2006), he is entitled to an evidentiary hearing on equitable tolling. 18 Petitioner also contends that the language barrier, transfers between facilities, and limited 19 access to the prison law library warrant an evidentiary hearing on equitable tolling. 20 Having reviewed the legal conclusions of the Report and Recommendation of the 21 Magistrate Judge, and the objections having been made by Petitioner thereto, the Court finds 22 that the Magistrate Judge adequately addressed all of Petitioner s arguments. Therefore, the 23 Court hereby incorporates and adopts the Magistrate Judge s Report and Recommendation. 24 /// 25 26 1 27 The factual and procedural history of this case is set forth in the Magistrate Judge s Report and Recommendation (Dkt. 13). 28 -2- 1 CONCLUSION 2 For the reasons set forth above, 3 IT IS HEREBY ORDERED that the Court adopts the Report and Recommendation 4 of the magistrate judge (Dkt. 13). 5 IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus Pursuant 6 to 28 U.S.C. § 2254 (Dkt. 1) is DENIED and this action is DISMISSED WITH 7 PREJUDICE. 8 DATED this 25th day of November, 2008. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-
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