Edtroy Harper v. Ryan Thornell, et al.

• Court: District Court, D. Arizona
• Decided: November 3, 2025
• Docket: 4:24-cv-00319
• Status: Unknown

Opinion

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Edtroy Harper, ) ) 9 Petitioner, ) v. ) No. CIV 24-319-TUC-CKJ 10 ) Ryan Thornell, et al. ) 11 ) ORDER Respondent. ) 12 ) 13 On August 5, 2025, Magistrate Lynnette C Kimmins issued a Report and 14 Recommendation (Doc. 16) in which she recommends the Court dismiss the Petition for Writ 15 of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) filed by Petitioner Edtroy Harper 16 ("Harper") as untimely. 17 The Report and Recommendation advised the parties that, pursuant to Fed.R.Civ.P. 18 72(b)(2), any party may serve and file written objections within fourteen (14) days after being 19 served with a copy of the Report and Recommendation. See also 28 U.S.C. § 636(b)(1). 20 The docket sheet indicates the copy of the Report and Recommendation mailed to Harper 21 was returned as undeliverable on August 7, 2025. The docket indicates the Clerk of Court 22 re-sent the Report and Recommendation following an email from Arizona Department of 23 Corrections staff stating Harper had been relocated to ASPC-Winslow (Kaibab unit) on June 24 30, 2025. On September 16, 2025, Harper submitted a Notice of Change of Address; this 25 notice confirms the re-sending of the Report and Recommendation was sent to the correct 26 address. 27 Based on the sending date of August 7, 2025, and allowing time for transit of the 28 Report and Recommendation, the Court finds no objections have been filed within the time 1 provided by 28 U.S.C. § 636(b)(1), 2 After an independent review, the Court finds it is appropriate to adopt the Report and 3 Recommendation and dismiss the Petition as untimely. 4 5 Certificate of Appealability ("COA") 6 Rule 11(a), Rules Governing Section 2254 Cases, requires that in habeas cases the 7 "district court must issue or deny a certificate of appealability when it enters a final order 8 adverse to the applicant." Such certificates are required in cases concerning detention arising 9 "out of process issued by a State court", or in a proceeding under 28 U.S.C. § 2255 attacking 10 a federal criminal judgment or sentence. 28 U.S.C. § 2253(c)(1). Here, the Petition is 11 brought pursuant to 28 U.S.C. § 2254, and challenges detention pursuant to a State court 12 judgment. This Court must determine, therefore, if a COA shall issue. 13 The standard for issuing a COA is whether the applicant has "made a substantial 14 showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "Where a district 15 court has rejected the constitutional claims on the merits, the showing required to satisfy § 16 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would 17 find the district court's assessment of the constitutional claims debatable or wrong." Slack 18 v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). "When the district 19 court denies a habeas petition on procedural grounds without reaching the prisoner's 20 underlying constitutional claim, a COA should issue when the prisoner shows, at least, that 21 jurists of reason would find it debatable whether the petition states a valid claim of the denial 22 of a constitutional right and that jurists of reason would find it debatable whether the district 23 court was correct in its procedural ruling." Id.; see also Robbins v. Carey, 481 F.3d 24 1143,1146-47 (9th Cir. 2007) (failure to object to magistrate judge's conclusions does not 25 automatically waive appellate challenge) In the certificate, the Court must indicate which 26 specific issues satisfy the showing. See 28 U.S.C. § 2253(c)(3). 27 The Court finds that jurists of reason would not find it debatable whether the Petition 28 1 || stated a valid claim of the denial of a constitutional right and the Court finds that jurists of 2 || reason would not find it debatable whether the district court was correct in its procedural 3 || ruling. A COA shall not issue as to Harper's claims. 4 Any further request for a COA must be addressed to the Court of Appeals. See Fed. 5 || R.App. P. 22(b); Ninth Circuit R. 22-1. 7 Accordingly, IT IS ORDERED: 8 1. The Report and Recommendation (Doc. 16) is ADOPTED. 9 2. The Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) 10 || by a Person in State Custody (Doc. 1) is DISMISSED as untimely. 11 3. The Clerk of the Court shall enter judgment and shall then close its file in this 12 || matter. 13 4. A Certificate of Appealability shall not issue in this case. 14 DATED this 31st day of October, 2025. 15 vig HQ gore 17 Cindy K. Jorgénso 8 United States District Judge 19 20 21 22 23 24 25 26 27 28 _3-