          Case 3:18-cv-08015-DJH Document 18 Filed 05/20/20 Page 1 of 4



 1
 2
 3
 4
 5
 6                        IN THE UNITED STATES DISTRICT COURT
 7                              FOR THE DISTRICT OF ARIZONA
 8
 9    Michael Bluhm,                                      No. CV-18-08015-PCT-DJH
10                    Petitioner,                         ORDER
11    v.
12    Charles L Ryan, et al.,
13                    Respondents.
14
15            This matter is before the Court on Petitioner’s Petition for Writ of Habeas Corpus
16   pursuant to 28 U.S.C. § 2254 (Doc. 1) filed on February 5, 2018 and the Report and
17   Recommendation (“R&R”) issued by United States Magistrate Judge Eileen S. Willett
18   (Doc. 15) on February 11, 2019. Petitioner filed an Objection to the R&R (“Objection”)
19   (Doc. 16) on February 28, 2019. Respondents filed a Reply to Petitioner’s Objection
20   (“Reply”) (Doc. 17) on March 13, 2019.
21            Petitioner raised two grounds for relief in his Petition. (Doc. 1). After a thorough
22   analysis, Judge Willett determined that the Petition was filed after the statute of limitations
23   period expired, that the Petitioner was not entitled to statutory or equitable tolling, and that
24   Petitioner has not demonstrated actual innocence. (Doc. 15). Accordingly, Judge Willett
25   recommends the Petition be denied and dismissed with prejudice. (Doc. 15 at 8).
26   I.       Standard of Review
27            The district judge “shall make a de novo determination of those portions of the report
28   or specified proposed findings or recommendations to which objection is made.” 28 U.S.C.
       Case 3:18-cv-08015-DJH Document 18 Filed 05/20/20 Page 2 of 4



 1   § 636(b)(1)(C); see also Fed.R.Civ.P. 72(b)(3) (“The district judge must determine de novo
 2   any part of the magistrate judge’s disposition that has been properly objected to.”); U.S. v.
 3   Reyna-Tapia, 328 F.3d 1114, 1121 (same). The judge “may accept, reject, or modify, in
 4   whole or in part, the findings or recommendations made by the magistrate judge.” 28
 5   U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(3).
 6   II.    Background
 7          Judge Willett described the procedural background of this case in her R&R.
 8   (Doc. 15 at 1-2). The Court need not repeat that information here. Moreover, Petitioner
 9   has not objected to any of the information in the background section. See Thomas v. Arn,
10   474 U.S. 140, 149 (1989) (The relevant provision of the Federal Magistrates Act, 28 U.S.C.
11   § 636(b)(1)(C), “does not on its face require any review at all . . . of any issue that is not
12   the subject of an objection.”). Petitioner also does not object to the factual basis from
13   which Judge Willett calculated Petitioner’s applicable statute of limitations and filing
14   deadlines. Pursuant to the authorities cited above, the Court is also not obligated to review
15   these findings. Nonetheless, the Court has reviewed these conclusions and agrees with
16   Judge Willett as to their accuracy.
17   III.   Petitioner’s Objection
18          On a general level, Petitioner’s Objection reiterates the merit-based arguments he
19   advances in his Petition. (See Doc. 16 at 1 (“When it comes to the claim of a warrantless
20   search there were numerous mistakes made by the arresting agency”); id. at 2 (“When it
21   comes to Petitioners [sic] of Inaffective [sic] Assistance of Counsel this is also a true and
22   factual claim”). Judge Willett, however, did not reach the merits of Petitioner’s claims
23   because she found the Petition was untimely. (Doc. 15 at 8). See also White v. Klitzkie,
24   281 F.3d 920, 921–22 (9th Cir. 2002) (whether a federal habeas petition is time-barred
25   must be resolved before considering other procedural issues or the merits of any habeas
26   claim). Thus, even if Petitioner’s merit arguments had the requisite specificity for this
27   Court to review, which they do not, the arguments are not objections the Court is obligated
28   to review under the Federal Magistrates Act because they do not contest factual or legal


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 1   determinations that Judge Willett made in her R&R. Thomas, 474 U.S. at 150 (where there
 2   is no objection to a magistrate’s factual and legal determinations, the district court need not
 3   review the decision “under a de novo or any other standard”). Moreover, as discussed
 4   infra, the Court agrees with Judge Willett that Petitioner’s Petition is untimely, and thus
 5   also does not reach Petitioner’s merit-based arguments.
 6          Although he does not contest the factual underlying Judge Willett’s conclusion that
 7   Petitioner’s habeas filing was untimely, Petitioner nonetheless argues that he “has done
 8   everything asked of him once he realized what had to be done to present his case to all the
 9   affected courts.” (Doc. 16 at 3). Without presenting any specifics as to what circumstances
10   came about that alerted Petitioner what “had to be done,” Petitioner urges the Court to “re-
11   review his case to push aside the untimeliness and all that comes with it.” (Id.) Read
12   liberally, the Court construes Petitioner’s arguments to be an objection to Judge Willett’s
13   conclusion that he should not be entitled to equitable tolling in assessing the timeliness of
14   his federal habeas petition.
15          The threshold to meet the requirements for equitable tolling is very high. Miranda
16   v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002). The limitations period set forth in
17   28 U.S.C. § 2244(d) is subject to equitable tolling where a petitioner shows he has been
18   pursuing his rights diligently and that extraordinary circumstances prevented him from
19   filing a timely petition. Holland v. Florida, 560 U.S. 631, 649 (2010). Equitable tolling is
20   applied sparingly, as reflected by the “extraordinary circumstances” requirement.
21   Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). Equitable tolling is
22   unavailable in most cases. Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (stating
23   that “the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest
24   the exceptions swallow the rule.”) (citation omitted). An “external force must cause the
25   untimeliness, rather than, as we have said, merely ‘oversight, miscalculation or negligence
26   on [the petitioner’s] part.’” Waldron-Ramsey, 556 F.3d at 1011 (quoting Harris v. Carter,
27   515 F.3d 1051, 1055 (9th Cir. 2008)). A petitioner seeking equitable tolling bears the
28   burden of demonstrating it is warranted in his habeas case. Doe v. Busby, 661 F.3d 1001,


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 1   1011 (9th Cir. 2011) (citing, inter alia, Holland, 560 U.S. at 649).
 2          The Court declines Petitioner’s invitation to “re-review” his case and “push aside”
 3   the untimeliness of his Petition. Petitioner has failed to demonstrate that any external force
 4   caused the untimeliness of either his state court filings or his federal habeas petition. Thus,
 5   any objection that Petitioner may have been trying to articulate that he was entitled to
 6   equitable tolling is overruled. Having failed to show that he is entitled to equitable tolling,
 7   the Court agrees with Judge Willett’s conclusion that Petitioner’s federal habeas petition is
 8   untimely.
 9   V.     Conclusion
10          Based on the foregoing,
11          IT IS ORDERED that Magistrate Judge Willett’s R&R (Doc. 15) is accepted and
12   adopted.
13          IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus pursuant
14   to 28 U.S.C. § 2254 (Doc. 1) is denied and dismissed with prejudice.
15          IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing
16   Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis
17   on appeal are denied because dismissal of the Petition is justified by a plain procedural bar
18   and jurists of reason would not find the procedural ruling debatable.
19          IT IS FINALLY ORDERED that the Clerk of Court shall terminate this action and
20   enter judgment accordingly.
21          Dated this 20th day of May, 2020.
22
23
24                                                 Honorable Diane J. Humetewa
25                                                 United States District Judge

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