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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Adrian Hernandez, 

Petitioner, 

v. 

Charles L Ryan, et al., 

Respondents.

No. CV-18-00413-PHX-DLR

ORDER 

Before the Court is the Report and Recommendation (“R&R”) of Magistrate Judge 

James F. Metcalf (Doc. 25) regarding Petitioner’s Petition for Writ of Habeas Corpus filed 

pursuant to 28 U.S.C. § 2254 (Doc. 1). The R&R recommends that the petition be denied 

and dismissed with prejudice. The Magistrate Judge advised the parties that they had 

fourteen days from the date of service of a copy of the R&R to file specific written 

objections with the Court. Petitioner filed an objection to the R&R on March 29, 2019, 

(Doc. 26), and Respondents filed their response on April 15, 2019 (Doc. 27). 

 The Court has considered the objections and reviewed the R&R de novo. See Fed. 

R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1). The Magistrate Judge correctly found the petition 

is untimely. As part of the Anti-Terrorism and Effective Death Penalty Act of 1996 

(“AEDPA”), Congress set a one-year statute of limitations for all applications for writs of 

habeas corpus filed pursuant to § 2254, challenging convictions and sentences rendered by 

state courts. 28 U.S.C. § 2244(d). Petitioner did not meet that one-year limitation. 
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Petitioner’s one-year habeas limitations period commenced on May 1, 2012, the day 

after his proceeding with Arizona Supreme Court was dismissed. However, because 

Petitioner commenced his first post-conviction relief (“PCR”) proceeding on April 10, 

2012, before his limitations period began to run, the limitations period was tolled from its 

inception, through May 8, 2015, when the Arizona Court of Appeals issued its mandate on 

its order denying relief. His one-year limitations period expired one year later, on May 8, 

2016. Petitioner’s habeas petition (Doc. 1) is deemed filed on January 30, 2018, more than 

a year after the expiration of his one-year limitations period. The R&R correctly concluded 

that the petition is untimely, as it was not filed within the one-year deadline. 

Petitioner raises multiple objections to the R&R but fails to establish a basis for 

additional tolling of the one-year limitations period. Petitioner’s newly discovered 

evidence assertion is without merit. The alleged newly discovered evidence is based on 

the trial record, which could have been discovered with reasonable diligence during the 

filing period set forth in 28 U.S.C. § 2244(D)(1)(a). 

Petitioner’s assertions that the time between his first and second PCR proceeding 

should be tolled because they are related, and that he deserves equitable tolling because he 

is a non-English speaker, will not be considered because those argument were not made to 

the Magistrate Judge. See Unites States v. Howell, 231 F.3d 615, 621-22 (9th Cir. 2000). 

Petitioner’s assertion that the limitations period should be tolled because his PCR 

counsel was ineffective is a re-argument of the issues he raised to the Magistrate Judge. 

He does not identify any specific error in the Magistrate Judge’s finding on that issue. The 

Magistrate Judge correctly found that alleged infective assistance conduct—the omission 

of a claim for relief—was not the type of extraordinary attorney misconduct that warrants 

equitable tolling. See Holland v. Florida, 560 U.S 631, 651-52 (2010). 

Petitioner’s assertion that the inadequacy of the prison library prevented a timely 

filing of his habeas petition is not supported by any explanation of what the inadequacy 

was or how the inadequacy prevented him from meeting the one-year filing period. 

Petitioner has not shown a basis for additional statutory tolling, equitable tolling, or 
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actual innocence. The Court therefore accepts the R&R within the meaning of Federal 

Rule of Civil Procedure 72(b) and overrules Petitioner’s objections. See 28 U.S.C. § 

636(b)(1). 

IT IS ORDERED that the R&R (Doc. 25) is ACCEPTED. A Certificate of 

Appealability and leave to proceed in forma pauperis on appeal (Doc. 28) are DENIED

because the dismissal of the Petition is justified by a plain procedural bar and reasonable 

jurists would not find the ruling debatable, and because Petitioner has not made a 

substantial showing of the denial of a constitutional right. The Clerk of the Court shall 

enter judgment denying and dismissing Petitioner’s Petition for Writ of Habeas Corpus 

filed pursuant to 28 U.S.C. § 2254 (Doc. 1) with prejudice and shall terminate this action. 

Dated this 15th day of May, 2019. 

Douglas L. Rayes 

United States District Judge