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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA

 

 The Court has before it Petitioner’s Petition for Writ of Habeas Corpus pursuant to 

28 U.S.C. § 2254. (Doc. 1.) The Court has also received Respondents’ Answer (Doc. 9), 

Petitioner’s Reply to the Answer (Doc. 10), the Report and Recommendation of Magistrate 

Judge Bridget S. Bade (Doc. 11), and Petitioner’s Objections to the Report and 

Recommendation (Doc. 12). 

In Grounds 1 and 2 of his habeas Petition, Petitioner argues that his trial counsel 

was ineffective in connection with plea negotiations and advice. (Doc. 1 at 6-8.) In Ground 

3, Petitioner argues that his trial counsel was ineffective for failing to investigate defenses 

to the charges against Petitioner. Id. at 9-10. In Ground 4, Petitioner alleges that his postconviction counsel was ineffective during his of-right proceeding pursuant to Arizona Rule 

of Criminal Procedure 32. Id. at 11; Ariz. R.Crim. P. 32.1. 

Respondents argue that Petitioner’s claims are untimely. (Doc. 9 at 14.) The 

Magistrate Judge concluded that Petitioner’s habeas Petition was untimely filed and 

therefore, Petitioner is not entitled to habeas relief. (Doc. 11 at 7.) 

Thomas David McWaters, 

 

Petitioner, 

v. 

Charles L. Ryan, et al., 

Respondents. 

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No. CV-17-03974-PHX-SPL 

ORDER 

 
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A district judge “may accept, reject, or modify, in whole or in part, the findings or 

recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). When a party files 

a timely objection to an R&R, the district judge reviews de novo those portions of the R&R 

that have been “properly objected to.” Fed. R. Civ. P. 72(b). A proper objection requires 

specific written objections to the findings and recommendations in the R&R. See United 

States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); 28 U.S.C. § 636(b) (1). It 

follows that the Court need not conduct any review of portions to which no specific 

objection has been made. See Reyna-Tapia, 328 F.3d at 1121; see also Thomas v. Arn, 474 

U.S. 140, 149 (1985) (discussing the inherent purpose of limited review is judicial 

economy). Further, a party is not entitled as of right to de novo review of evidence or 

arguments which are raised for the first time in an objection to the R&R, and the Court’s 

decision to consider them is discretionary. United States v. Howell, 231 F.3d 615, 621-622 

(9th Cir. 2000). 

 The Court has undertaken an extensive review of the sufficiently developed record. 

Petitioner’s objections to the findings and recommendations have also been carefully 

considered. After conducting a de novo review of the issues and objections, the Court 

reaches the same conclusions reached by Judge Bade. 

 Petitioner objects to the Magistrate Judge’s conclusion that he is not entitled to 

statutory or equitable tolling of the Antiterrorism and Effective Death Penalty Act’s 

(“AEDPA”) one-year statute of limitations. (Doc. 12 at 1.) This Court finds that the 

Magistrate Judge correctly concluded that the Petition was untimely and that Petitioner is 

not entitled to either statutory or equitable tolling. (Doc. 11 at 4-7.) As the Magistrate 

Judge correctly noted, “[t]he AEDPA statute of limitations had already expired by the time 

Petitioner commenced [his October 8, 2015] post-conviction action,” and thus, Petitioner’s 

2015 post-conviction proceeding did not statutorily toll the limitations period. Id. at 5; 

citing Ferguson v. Palmateer, 321 F.3d. 820, 823 (9th Cir. 2003) (holding that “section 

2244(d) does not permit the reinitiation of the limitations period that has ended before the 

state petition was filed.”) Further, the Magistrate Judge correctly determined that 
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Petitioner failed to meet his burden of showing that an extraordinary circumstance 

prevented him from filing a timely habeas petition, and therefore, Petitioner is not entitled 

to equitable tolling. (Doc. 11 at 7.) 

Having carefully reviewed the record, Petitioner has not shown that he is entitled to 

habeas relief. The R&R will be adopted in full. Accordingly, 

IT IS ORDERED:

1. That the Magistrate Judge’s Report and Recommendation (Doc. 11) is 

accepted and adopted by the Court; 

2. That Petitioner’s Objections (Doc. 12) are overruled; 

3. That the Petition for Writ of Habeas Corpus (Doc. 1) is denied and this action 

is dismissed with prejudice; 

4. That a certificate of appealability and leave to proceed in forma pauperis on 

appeal are denied; and 

5. That the Clerk of Court shall terminate this action. 

 Dated this 14th day of November, 2018. 

Honorable Steven P. Logan 

United States District Judge