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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA

 

 The Petitioner, Armando Lopez Jr, is currently serving a forty two year prison 

term in Douglas, Arizona. He was convicted in the Pinal County Superior Court for two 

counts of attempted murder and one count of burglary. Petitioner filed a pro se Petition 

for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) on December 1, 2015. 

Respondents filed a Limited Answer (Doc. 10), stating that the Petition should be 

dismissed as untimely under the Antiterrorism and Effective Death Penalty Act 

(“AEDPA”), and that the Petitioner’s claims are unexhausted and procedurally defaulted. 

Petitioner filed a Reply (Doc. 11) and a supplement to his Petition (Doc. 12). 

Additionally, United States Magistrate Judge Deborah M. Fine has issued a Report and 

Recommendation (“R&R”) recommending that the Court deny and dismiss the petition 

(Doc. 14) as untimely because the Petition was filed on November 24, 2015 and Judge 

Fine believed the filing of the Petition to be several years after the AEDPA’s one year 

statute of limitations had expired. The Petitioner timely filed Objections to the R&R 

(Doc. 15). Additionally, the petitioner filed a Motion to Stay the Habeas Proceedings 

Armando Lopez, Jr., 

 

Petitioner, 

v. 

Charles L. Ryan, et al., 

Respondents. 

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No. CV-15-02436-PHX-SPL

ORDER 
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with Leave to Amend or Leave to file a Second Successive Petition (Doc. 16). 

Respondents filed a response to Petitioner’s Motion to Stay the Habeas Proceedings and 

for Leave to Amend (Doc. 18). Petitioner subsequently replied to the response from the 

Respondents and requested an Evidentiary Hearing (Docs. 19, 20). Petitioner also filed a 

Motion for Leave to Amend the previously filed Petition (Doc. 21), and subsequently 

lodged an Amended / Supplement (Doc. 22). Petitioner does not object to the correctness 

of the factual background in the R&R, which the Court adopts and incorporates. For the 

following reasons, the Court accepts and adopts the R&R, and denies the petition. 

 A district 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). When a party files 

a timely objection to an R&R, the district judge reviews de novo those portions of the 

R&R that have been “properly objected to.” Fed. R. Civ. P. 72(b). A proper objection 

requires specific written objections to the findings and recommendations in the R&R. See 

United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); 28 U.S.C. § 

636(b)(1). It follows that the Court need not conduct any review of portions to which no 

specific objection has been made. See Reyna-Tapia, 328 F.3d at 1121; see also Thomas v. 

Arn, 474 U.S. 140, 149 (1985) (discussing the inherent purpose of limited review is 

judicial economy). Further, a party is not entitled as of right to de novo review of 

evidence or arguments which are raised for the first time in an objection to the R&R, and 

the Court’s decision to consider them is discretionary. United States v. Howell, 231 F.3d 

615, 621-622 (9th Cir. 2000). 

The Writ of Habeas Corpus alleged a Sixth Amendment violation based on 

competency issues, a due process violation based on prosecutorial misconduct and an 

allegation of a multiplicitous indictment (Doc. 1 at 6-8). The Petitioner objected to the 

R&R (Doc. 15) arguing that section 2255 provides for relief from the one year deadline 

under certain circumstances, and that Judge Fine failed to address the competency issues 

raised in the Petition (Doc. 15 at 2). Additionally, the Petitioner argued the government 

was involved in prosecutorial misconduct and that the indictment was multiplicitous in 
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violation of the Fifth Amendment (Doc. 15 at 3). 

 The Court concludes that Magistrate Judge Fine’s recommendations are correct. 

The Court adopts Judge Fine’s R&R and the underlying reasoning. The Court expressly 

finds that after the Petitioner chose not to file a Petition for review with the Arizona 

Supreme Court, the convictions became final on November 8, 2010, which was the date 

that the Petitioner could no longer appeal to the Arizona Supreme Court (Doc. 10-2 at 

210). This Court further finds that the Petitioner filed his Petition with this Court on 

November 24, 2015 which was not timely. The equitable tolling arguments from the 

Petitioner are not persuasive. The Court did not find any extraordinary circumstances or 

diligence on the part of the Petitioner that would trigger his entitlement to equitable 

tolling. 

 The Court has undertaken an extensive review of the sufficiently developed record 

and the issues presented in the objections, without the need of an evidentiary hearing. 

Having carefully reviewed the record, the Petitioner has not shown that he is entitled to 

habeas relief pursuant to 28 U.S.C. § 2244. Finding none of Petitioner’s objections have 

merit, the R&R will be adopted in full. Accordingly,

IT IS ORDERED:

1. That Magistrate Judge Fine’s Report and Recommendation (Doc. 14) is 

accepted and adopted by the Court; 

2. That the Motion to Stay the Habeas Proceedings with Leave to Amend or 

Leave to file a Second Successive Petition (Doc. 16) is denied; 

3. That the Motion for Evidentiary Hearing (Doc. 20) is denied; 

4. That the Motion for Leave to Amend the Petition (Doc. 21) is denied; 

5. That the Petitioner’s Objections (Doc. 15) are overruled; 

6. That the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2244 

(Doc. 1) is denied and this action is dismissed with prejudice; 

7. That a Certificate of Appealability and leave to proceed in forma pauperis 

on appeal are denied because the dismissal of the Petition is justified by a plain 
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procedural bar and reasonable jurists would not find the ruling debatable; and 

8. That the Clerk of Court shall terminate this action. 

 Dated this 11th day of July, 2017.

Honorable Steven P. Logan

United States District Judge