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NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Mark Anthony Alcantar,

Petitioner,

v. 

Charles L. Ryan, et al.,

Respondents.

No. CV-15-02146-PHX-JJT

ORDER

At issue are Petitioner Mark Anthony Alcantar’s Petition under 28 U.S.C. §2254 

for Writ of Habeas Corpus (Doc. 1), as well as Petitioner’s “Response to Petition,” which 

the Clerk of the Court docketed and the Court treats as a motion to set aside the petition 

or dismiss it without prejudice (Doc. 17). Magistrate Judge Eileen Willett issued a Report 

and Recommendation (“R&R”) in the matter on April 1, 2016 (Doc. 20), to which no 

party filed an Objection, recommending denial and dismissal of the Petition and denial of 

the Motion to Set Aside. Because no party objected, timely or otherwise, the Court may 

accept the R&R without further review. United States v. Reyna-Tapia, 328 F.3d 1114, 

1121 (9th Cir. 2003). The Court nonetheless has conducted its own review of the Petition 

and Motion, and for the reasons set forth in the R&R, this Court will deny the Petition 

and the Motion. 

In the R&R, Judge Willett thoroughly and correctly analyzed the issues involved 

in the instant Petition, and because this Court will adopt the recommendations set forth in 

the R&R as well as the reasoning behind those recommendations, it will not restate those 

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issues or their resolution here in detail. The Petition presents a very straightforward 

matter of the application of the time limitations imposed on a habeas petition under 

28 U.S.C §2254. Petitioner was convicted on September 23, 2013, and thereafter had 90 

days to seek review under a state PCR proceeding. He did not do so, and so his

conviction in the Arizona State Court matter became final as of December 23, 2013,

pursuant to Section 2244(d)(1)(A) of AEDPA. AEDPA’s limitation period thus 

commenced on December 24, 2013, and any habeas petition filed on or after that date is 

barred absent statutory or equitable tolling.1 Petitioner filed nothing in the state matter 

that would have triggered any statutory tolling, and he has offered nothing to support an 

argument for equitable tolling, as Judge Willett noted. The Petition is untimely and

cannot stand.

As Judge Willett reasoned, granting Petitioner’s Motion to Set Aside the Petition 

or dismiss it without prejudice does not serve judicial economy because the defect here is 

irremediable. Any re-urging of the Petition in the future would raise the same 

insurmountable obstacle. The Petition always will be untimely and that cannot be 

remedied by returning to state court for PCR, as Petitioner suggests he might do, or any 

other action he could take. The Court therefore will follow the R&R and deny the Motion 

to Set Aside Petition (17) as well.

IT IS ORDERED adopting Magistrate Judge Willett’s R&R in its entirety and 

incorporating same into this Order. 

IT IS FURTHER ORDERED denying the Motion to Set Aside Petition for Writ of 

Habeas Corpus (Doc. 17)

IT IS FURTHER ORDERED denying the Petition for Writ of Habeas Corpus 

pursuant to 28 U.S.C. § 2254 (Doc. 1) and dismissing this matter with prejudice.

///

///

 

1 Judge Willett correctly notes that Petitioner makes no actual innocence claim in his Petition, so neither she nor the Court have anything to analyze for conformity with the 

standards of Schlup v. Delo, 513 U.S. 298 327 (1995).

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

proceed in forma pauperis on appeal in this matter because the dismissal of the instant 

Petition is justified by a plain procedural bar and jurists of reason would not find the 

procedural ruling debatable.

Dated this 22nd day of June, 2016.

Honorable John J. Tuchi

United States District Judge

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