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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Michael Ray Lynam, 

Petitioner, 

v. 

Charles L Ryan, et al., 

Respondents. 

No. CV-15-00488-TUC-DCB 

ORDER 

 This matter was referred to Magistrate Judge Bruce G. Macdonald, pursuant to 

Rules of Practice for the United States District Court, District of Arizona (Local Rules), 

Rule (Civil) 72.1(a). On January 22, 2019, Magistrate Judge Macdonald issued a Report 

and Recommendation (R&R). He recommends that the Court deny the Petition filed under 

U.S.C. § 2254 for Writ of Habeas Corpus by a person in State custody. The Magistrate 

Judge found the Petition was barred by the one-year statute of limitation under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d)(1). The 

Court accepts and adopts the Magistrate Judge’s R&R as the findings of fact and 

conclusions of law of this Court and dismisses the Petition as time-barred. 

STANDARD OF REVIEW 

 The duties of the district court in connection with a R&R by a Magistrate Judge are 

set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The 

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

recommendations made by the magistrate judge.” Fed.R.Civ.P. 72(b); 28 U.S.C. § 
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636(b)(1). Where the parties object to a R&R, “‘[a] judge of the [district] court shall make 

a de novo determination of those portions of the [R&R] to which objection is made.’” 

Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (quoting 28 U.S.C. § 636(b)(1)). 

 This Court's ruling is a de novo determination as to those portions of the R&R to 

which there are objections. 28 U.S.C. § 636(b)(1)(C); Wang v. Masaitis, 416 F.3d 992, 

1000 n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th 

Cir.2003) (en banc). To the extent that no objection has been made, arguments to the 

contrary have been waived. Fed. R. Civ. P. 72; see 28 U.S.C. § 636(b)(1) (objections are 

waived if they are not filed within fourteen days of service of the R&R), see also McCall 

v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980) (failure to object to Magistrate's report 

waives right to do so on appeal); Advisory Committee Notes to Fed. R. Civ. P. 72 (citing 

Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974) (when no timely 

objection is filed, the court need only satisfy itself that there is no clear error on the face of 

the record in order to accept the recommendation)). 

 The parties were sent copies of the R&R and instructed that, pursuant to 28 U.S.C. 

§ 636(b)(1), they had 14 days to file written objections. See also, Fed. R. Civ. P. 72 (party 

objecting to the recommended disposition has fourteen (14) days to file specific, written 

objections). The Court has considered the Objection filed by the Plaintiff, the Reply filed 

by the Defendants, and the parties’ briefs considered by the Magistrate Judge in deciding 

the Petition. 

OBJECTIONS 

 In the Petitioner’s Objection, he argues the merits of his Petition. Specifically, he 

argues that the Arizona courts got it wrong when they refused to apply Martinez v. Ryan, 

566 U.S. 1 (2012) to excuse preclusion related to his claim of ineffective assistance of 

counsel in his Rule 32 proceeding. Unfortunately, the Petitioner cannot get review here on 

the merits of his Petition because, as the Magistrate Judge explained, his Petition is barred 

by AEDPA’s the one-year statute of limitation period. (R&R (Doc. 16) at 18-23.) 
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 The Court agrees with the Magistrate Judge that the Petition is time barred. 

Magistrate Judge Macdonald issued a well-reasoned R&R, which explains why as a matter 

of law and fact the case is barred by the one-year statute of limitation, including a correct 

analysis of the time-bar as tolled in this case. 

CONCLUSION 

 After de novo review of the issues raised in the Plaintiff’s Objection, this Court 

agrees with the findings of fact and conclusions of law made by the Magistrate Judge in 

the R&R for determining the Petition. The Court adopts it, and for the reasons stated in 

the R&R, the Court denies Plaintiff’s Petition for habeas relief. 

Accordingly, 

IT IS ORDERED that after a full and independent review of the record, in respect 

to the Objection, the Magistrate Judge's Report and Recommendation (Doc. 16) is accepted 

and adopted as the findings of fact and conclusions of law of this Court. 

IT IS FURTHER ORDERED that Petition Under 28 U.S.C. § 2254 for a Writ of 

Habeas Corpus by a Person in State Custody (Doc. 1) is DENIED. 

IT IS FURTHER ORDERED that the Clerk of the Court shall enter Judgment 

accordingly. 

IT IS FURTHER ORDERED that if Petitioner files an appeal, the Court declines 

to issue a certificate of appealability, pursuant to Rule 11(a) of the Rules Governing Section 

2254 cases because reasonable jurists would not find the Court’s procedural ruling 

debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). 

 Dated this 12th day of March, 2019.