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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Michael Bluhm,

Petitioner,

v. 

Charles L Ryan, et al.,

Respondents.

No. CV-18-08015-PCT-DJH

ORDER 

This matter is before the Court on Petitioner’s Petition for Writ of Habeas Corpus 

pursuant to 28 U.S.C. § 2254 (Doc. 1) filed on February 5, 2018 and the Report and 

Recommendation (“R&R”) issued by United States Magistrate Judge Eileen S. Willett

(Doc. 15) on February 11, 2019. Petitioner filed an Objection to the R&R (“Objection”) 

(Doc. 16) on February 28, 2019. Respondents filed a Reply to Petitioner’s Objection 

(“Reply”) (Doc. 17) on March 13, 2019. 

Petitioner raised two grounds for relief in his Petition. (Doc. 1). After a thorough 

analysis, Judge Willett determined that the Petition was filed after the statute of limitations 

period expired, that the Petitioner was not entitled to statutory or equitable tolling, and that 

Petitioner has not demonstrated actual innocence. (Doc. 15). Accordingly, Judge Willett

recommends the Petition be denied and dismissed with prejudice. (Doc. 15 at 8). 

I. Standard of Review

The district judge “shall make a de novo determination of those portions of the report 

or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. 

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§ 636(b)(1)(C); see also Fed.R.Civ.P. 72(b)(3) (“The district judge must determine de novo

any part of the magistrate judge’s disposition that has been properly objected to.”); U.S. v. 

Reyna-Tapia, 328 F.3d 1114, 1121 (same). The 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)(1)(C); Fed.R.Civ.P. 72(b)(3). 

II. Background

Judge Willett described the procedural background of this case in her R&R. 

(Doc. 15 at 1-2). The Court need not repeat that information here. Moreover, Petitioner 

has not objected to any of the information in the background section. See Thomas v. Arn, 

474 U.S. 140, 149 (1989) (The relevant provision of the Federal Magistrates Act, 28 U.S.C. 

§ 636(b)(1)(C), “does not on its face require any review at all . . . of any issue that is not 

the subject of an objection.”). Petitioner also does not object to the factual basis from 

which Judge Willett calculated Petitioner’s applicable statute of limitations and filing 

deadlines. Pursuant to the authorities cited above, the Court is also not obligated to review 

these findings. Nonetheless, the Court has reviewed these conclusions and agrees with 

Judge Willett as to their accuracy. 

III. Petitioner’s Objection

On a general level, Petitioner’s Objection reiterates the merit-based arguments he 

advances in his Petition. (See Doc. 16 at 1 (“When it comes to the claim of a warrantless 

search there were numerous mistakes made by the arresting agency”); id. at 2 (“When it 

comes to Petitioners [sic] of Inaffective [sic] Assistance of Counsel this is also a true and 

factual claim”). Judge Willett, however, did not reach the merits of Petitioner’s claims 

because she found the Petition was untimely. (Doc. 15 at 8). See also White v. Klitzkie, 

281 F.3d 920, 921–22 (9th Cir. 2002) (whether a federal habeas petition is time-barred 

must be resolved before considering other procedural issues or the merits of any habeas 

claim). Thus, even if Petitioner’s merit arguments had the requisite specificity for this 

Court to review, which they do not, the arguments are not objections the Court is obligated 

to review under the Federal Magistrates Act because they do not contest factual or legal 

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determinations that Judge Willett made in her R&R. Thomas, 474 U.S. at 150 (where there 

is no objection to a magistrate’s factual and legal determinations, the district court need not 

review the decision “under a de novo or any other standard”). Moreover, as discussed 

infra, the Court agrees with Judge Willett that Petitioner’s Petition is untimely, and thus 

also does not reach Petitioner’s merit-based arguments. 

Although he does not contest the factual underlying Judge Willett’s conclusion that 

Petitioner’s habeas filing was untimely, Petitioner nonetheless argues that he “has done 

everything asked of him once he realized what had to be done to present his case to all the 

affected courts.” (Doc. 16 at 3). Without presenting any specifics as to what circumstances 

came about that alerted Petitioner what “had to be done,” Petitioner urges the Court to “rereview his case to push aside the untimeliness and all that comes with it.” (Id.) Read 

liberally, the Court construes Petitioner’s arguments to be an objection to Judge Willett’s 

conclusion that he should not be entitled to equitable tolling in assessing the timeliness of 

his federal habeas petition. 

The threshold to meet the requirements for equitable tolling is very high. Miranda 

v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002). The limitations period set forth in 

28 U.S.C. § 2244(d) is subject to equitable tolling where a petitioner shows he has been 

pursuing his rights diligently and that extraordinary circumstances prevented him from 

filing a timely petition. Holland v. Florida, 560 U.S. 631, 649 (2010). Equitable tolling is 

applied sparingly, as reflected by the “extraordinary circumstances” requirement. 

Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). Equitable tolling is 

unavailable in most cases. Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (stating 

that “the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest 

the exceptions swallow the rule.”) (citation omitted). An “external force must cause the 

untimeliness, rather than, as we have said, merely ‘oversight, miscalculation or negligence 

on [the petitioner’s] part.’” Waldron-Ramsey, 556 F.3d at 1011 (quoting Harris v. Carter, 

515 F.3d 1051, 1055 (9th Cir. 2008)). A petitioner seeking equitable tolling bears the 

burden of demonstrating it is warranted in his habeas case. Doe v. Busby, 661 F.3d 1001, 

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1011 (9th Cir. 2011) (citing, inter alia, Holland, 560 U.S. at 649). 

The Court declines Petitioner’s invitation to “re-review” his case and “push aside” 

the untimeliness of his Petition. Petitioner has failed to demonstrate that any external force 

caused the untimeliness of either his state court filings or his federal habeas petition. Thus,

any objection that Petitioner may have been trying to articulate that he was entitled to 

equitable tolling is overruled. Having failed to show that he is entitled to equitable tolling, 

the Court agrees with Judge Willett’s conclusion that Petitioner’s federal habeas petition is 

untimely. 

V. Conclusion

Based on the foregoing,

IT IS ORDERED that Magistrate Judge Willett’s R&R (Doc. 15) is accepted and 

adopted. 

IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus pursuant 

to 28 U.S.C. § 2254 (Doc. 1) is denied and dismissed with prejudice.

IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing 

Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis

on appeal are denied because dismissal of the Petition is justified by a plain procedural bar 

and jurists of reason would not find the procedural ruling debatable.

IT IS FINALLY ORDERED that the Clerk of Court shall terminate this action and 

enter judgment accordingly.

Dated this 20th day of May, 2020.

Honorable Diane J. Humetewa

United States District Judge

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