Alberto Cruz v. Bob Marshall
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:13-cv-01097-JAB-LPA Copies to all parties and the district court/agency. [999989587]. Mailed to: Alexander Egbert Ryan Travers. [15-6130]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6130
ALBERTO MARQUEZ CRUZ,
Petitioner - Appellant,
v.
BOB W. MARSHALL; KIERAN J. SHANAHAN,
Respondents – Appellees.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Senior District Judge. (1:13-cv-01097-JAB-LPA)
Argued:
September 21, 2016
Decided:
December 19, 2016
Before KING, SHEDD, and THACKER, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Shon Robert Hopwood, GEORGETOWN UNIVERSITY LAW CENTER,
Washington, D.C., for Appellant.
Clarence Joe DelForge, III,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina,
for Appellees.
ON BRIEF: Steven H. Goldblatt, Director,
Alexander J. Egbert, Ryan J. Travers, Student Counsel, Appellate
Litigation
Program,
GEORGETOWN
UNIVERSITY
LAW
CENTER,
Washington, D.C., for Appellant.
Roy Cooper, Attorney General
of the State of North Carolina, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellees.
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PER CURIAM:
North
(“Petitioner”)
Carolina
filed
a
state
habeas
prisoner
corpus
Alberto
petition
Cruz
asserting
five
grounds for relief in the District Court for the Middle District
of North Carolina against Bob Marshall, Acting Superintendent of
the
Harnett
Secretary,
State”).
The
Correctional
North
Carolina
district
Department
and
of
Frank
Public
Perry,
Safety
(“the
The State moved to dismiss the petition as untimely.
magistrate
Petitioner
Institution,
court
filed
court
recommended
objections
summarily
to
the
rejected
granting
the
recommendation,
Petitioner’s
motion.
but
the
objections,
adopted the recommendation, and entered an order dismissing the
action as untimely.
We granted Certificates of Appealability to determine
whether the petition timely asserts a Brady violation and an
ineffective assistance of counsel claim.
Because the district
court failed to properly consider Petitioner’s objections to the
magistrate’s Report and Recommendation and provide an adequate
rationale
for
its
decision,
we
vacate
the
decision and remand for further proceedings.
2
district
court’s
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I.
A.
On July 26, 2010, police arrested Petitioner, a 21year-old
Mexican
citizen,
in
a
Guilford County, North Carolina.
McDonald’s
parking
lot
in
On September 20, 2010, the
grand jury indicted Petitioner for a variety of drug-related
charges.
Thereafter,
Petitioner’s
counsel
proceeded
to
negotiate a plea agreement with the State.
On January 10, 2011, Petitioner pled guilty to seven
drug-related offenses.
175
and
219
months
He was ultimately sentenced to between
imprisonment.
Per
the
plea
agreement,
Petitioner waived his right to direct appeal.
B.
On
March
14,
2013,
Petitioner
filed
a
Motion
for
Appropriate Relief (“MAR”) in the North Carolina Superior Court
raising five challenges to his guilty plea and sentence: (1) a
violation of due process because the State did not allow him a
consular
visit
pursuant
to
the
Vienna
Convention;
(2)
a
violation of due process because Petitioner’s plea agreement was
not
knowing,
assistance
of
intelligent,
counsel
and
because
voluntary;
counsel
failed
(3)
to
ineffective
investigate
possible defenses; (4) a violation of due process because the
court sentenced him to a sentence outside the appropriate range;
and (5) a violation of Brady v. Maryland, 373 U.S. 83 (1963),
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because the State did not disclose a fingerprint analysis of the
drugs. 1
When the North Carolina Superior Court rejected the
MAR, Petitioner filed a Motion for Reconsideration, which was
denied.
Petitioner next filed a Petition for Writ of Certiorari
with the North Carolina Court of Appeals, which was also denied.
C.
On December 9, 2013, Petitioner filed a Petition for
Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254 (the “Habeas
Petition”), in the United States District Court for the Middle
District of North Carolina.
The district court referred the
matter to a magistrate judge.
See 28 U.S.C. § 636(b)(1)(B).
In
the Habeas Petition, Petitioner raised the same five challenges
to his plea and sentence as he did in his MAR.
Although almost
two years had elapsed since his guilty plea, the Habeas Petition
claimed timeliness under 28 U.S.C. § 2244(d)(1)(D). 2
1
The court
In the MAR, Petitioner did not provide information about
how or when he became aware of either the existence of the
State’s report or his attorney’s failure to investigate.
2
Section 2244 (d)(1) provides:
A 1-year period of limitation shall apply to
an application for a writ of habeas corpus
by a person in custody pursuant to the
judgment of a State court.
The limitation
period shall run from . . . (D) the date on
which the factual predicate of the claim or
(Continued)
4
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ordered
the
State
to
merits,
the
State
moved
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respond.
Rather
to
dismiss
2015,
the
than
the
respond
Habeas
on
the
Petition
as
untimely.
On
January
9,
magistrate
Report and Recommendation (“R & R”).
about
the
consular
agreement,
visit,
the
and
length
of
the
issued
a
It first held the claims
voluntary
the
judge
nature
sentence
of
untimely
the
plea
because
“Petitioner knew the factual predicate [for those claims] . . .
when
he
pled
guilty
and
received
his
sentence.”
Cruz
v.
Marshall, No. 1:13-cv-1097, 2015 WL 136089, at *3 (M.D.N.C. Jan.
9, 2015), report and recommendation adopted, No. 1:13-cv-1097,
2015 WL 270026 (M.D.N.C. Jan. 21, 2015).
The
assistance
of
R
&
R
counsel
analyzed
claims
the
Brady
separately
but
and
ineffective
ultimately
held
these claims untimely because Petitioner had failed to plead
sufficient facts to toll the statute of limitations pursuant to
28 U.S.C. § 2244(d)(1)(D).
Although the Habeas Petition alleged
a Brady violation and asserted the State suppressed a report
showing Petitioner’s fingerprints were not on the drugs he was
charged with trafficking, it did not include the date Petitioner
learned of the State’s report.
Likewise, although the Habeas
claims presented could have been discovered
through the exercise of due diligence.
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Petition alleged ineffective assistance of counsel and asserted
Petitioner’s counsel failed to adequately investigate his case,
it
did
not
failure
include
to
investigate
failure.
the
date
or
Petitioner
even
how
he
learned
of
counsel’s
learned
of
counsel’s
The R & R deemed the failure to include these dates a
“fatal” error and therefore held these claims untimely.
Cruz,
2015 WL 136089, at *3.
Petitioner timely filed his objections to the R & R
and
corrected
the
flaw.
Specifically,
Petitioner
stated
he
learned of the report showing his fingerprints were not on the
drugs when he received the State’s discovery documents “on or
about
January
15,
2013.”
J.A.
159. 3
His
objection
also
explained he learned of counsel’s failure to investigate his
case when he received his “file from counsel on or about March
1, 2013.”
Id. at 160.
Although Petitioner filled in this critical gap, the
district court nonetheless adopted the R & R and declined to
issue a Certificate of Appealability.
Furthermore, the district
court’s laconic order failed to provide any insight as to why
the district court was rejecting Petitioner’s objections.
See
Cruz, 2015 WL 270026, at *1.
3
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
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Petitioner timely filed a Notice of Appeal, and we
granted
a
Certificate
of
Appealability
on
the
Brady
claim.
Counsel was appointed for Petitioner and, upon request, we also
granted
a
Certificate
of
Appealability
on
the
ineffective
assistance of counsel claim.
II.
Pursuant to 28 U.S.C. § 636(b)(1)(C), a district court
must review de novo any parts of an R & R to which objections are
made.
When a party fails to object to an adverse ruling, the
district court, in its discretion, may adopt an R & R without
providing an explanation.
See Camby v. Davis, 718 F.2d 198, 200
(4th Cir. 1983) (“Absent objection, we do not believe that any
explanation need be given for adopting the report.”).
When a party raises new information in objections to
an R & R, regardless of whether it is new evidence or a new
argument, 4 the district court must do more than simply agree with
the magistrate.
to the objection.
Cir. 1982).
It must provide independent reasoning tailored
See Orpiano v. Johnson, 687 F.2d 44, 48 (4th
The district court does not need to provide an
4
The parties dispute whether the addition of the dates in
Petitioner’s objection to the R & R classify as additional
evidence the district court had discretion to accept or a new
argument the court was obligated to consider.
See Appellant’s
Br. 24; Appellee’s Br. 8.
We reach no determination on the
issue.
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elaborate or lengthy explanation, but it must provide a specific
rationale that permits meaningful appellate review.
See United
States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (requiring a
district court to provide a specific explanation for sentencing
decisions); Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1177
(9th Cir. 1996) (“Here, the record does not reflect the district
court’s reasons for deciding not to award sanctions . . . .
Because such a reasoned basis is necessary to make appellate
review meaningful, we vacate the district court order . . . .”);
Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 182 (4th
Cir. 1988) (“The procedures mandated by [In re Knight, 743 F.3d
231 (4th Cir. 1984)] ensure that the decision to seal records
will not be made lightly, and make possible meaningful review of
a decision to seal.”).
Here, the district court did not provide a sufficient
explanation.
Instead,
the
court
simply
stated,
it
“had
appropriately reviewed the portions of the Magistrate Judge’s
Report
to
which
determination
in
objection
accord
was
with
made
the
Cruz, 2015 WL 270026, at *1.
and
has
Magistrate
made
a
Judge’s
de
novo
report.”
But this statement cannot be
reconciled with the posture of the case.
The
ineffective
Petitioner
magistrate
assistance
failed
to
of
judge
dismissed
counsel
include
and
specific
8
as
Brady
dates
untimely
claims
when
he
the
because
learned
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facts
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critical
to
these
providing those dates.
longer
included
ineffective
the
court
petition
was
claims.
Petitioner
responded
by
With the new information, the R & R no
basis
assistance
district
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should
untimely
to
of
counsel
have
so
dismiss
claims.
explained
as
to
Petitioner’s
its
permit
Brady
Therefore,
decision
meaningful
that
or
the
the
appellate
review.
III.
For the foregoing reasons, we vacate and remand for
further proceedings.
Specifically, we direct the district court
to review de novo the R & R, including Petitioner’s objections,
and provide sufficient explanation for its ruling, whatever that
may be.
VACATED AND REMANDED
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