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NOT FOR PUBLICATION 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Russell J. McMillan, 

Petitioner, 

v. 

Charles L. Ryan, et al., 

Respondents.

No. CV-15-02440-PHX-JJT

ORDER 

 At issue is the Report and Recommendation (R&R) submitted by Magistrate Judge 

Bade in this matter (Doc. 12), recommending that the Court dismiss Russell J. 

McMillan’s Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) as 

untimely. Petitioner has filed a Response (Doc. 13). Respondents have waived their 

right to a reply. 

 Because Judge Bade’s recitation of facts and the record both in Arizona State 

court and in this Court is so thorough, the Court will not recount this history here. A 

review of the supporting materials supports Judge Bade’s recommendation that the 

Petition is untimely by more than two years. Petitioner had one year after his matter in 

the Arizona State court became final “by the conclusion of direct review or the expiration 

of the time for seeking such review” to file his petition for federal habeas review. 28 

U.S.C. § 2244(d)(1)(A). Finality thus set in on November 29, 2011, when the Arizona 

State trial court had denied relief on his Rule 32 of-right proceeding and he did not seek 

appellate review of that decision within the 35 days thereafter. Section 2244(d)(1)(A)’s 

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one-year limit thus expired a year later on November 29, 2012, and Judge Bade correctly 

concluded that no statutory or equitable tolling applied. Petitioner’s subsequently-filed 

second post-conviction petition did not restart the limitation period. He did not file his 

§ 2254 petition until December 1, 2015—two years and two days late. 

 Petitioner argues in his Response that AEDPA is unconstitutional, but in so doing 

he ignores the case law Judge Bade sets forth in the R&R to defeat that argument. See 

Green v. White, 223 F.3d 1001, 1003-04 (9th Cir. 2000). He also argues it was error for 

Judge Bade to ignore the merits of his petition and only address the timeliness issue. But 

courts do not reach the merits of a matter where the law instructs them to address 

procedural requirements, including timeliness and statutes of limitation, before reaching 

the merits, and then to dismiss those matters that do not meet procedural thresholds on 

that basis. There is no error in Judge Bade’s approach. The Court adopts it in whole. 

IT IS ORDERED adopting the R&R in whole and denying and dismissing the 

Petition for Writ of Habeas Corpus (Doc. 1). 

IT IS FURTHER ORDERED denying a Certificate of Appealability and leave to 

proceed in forma pauperis on appeal, as the dismissal of the Petition is justified by a 

plain procedural bar and reasonable jurists would not find the procedural ruling debatable 

and because Petitioner has not made a substantial showing of the denial of a 

constitutional right. 

 Dated this 26th day of April, 2016. 

Honorable John J. Tuchi

United States District Judge

Case 2:15-cv-02440-JJT Document 14 Filed 04/26/16 Page 2 of 2