Alberto Cruz v. Bob Marshall


UNPUBLISHED PER CURIAM OPINION filed.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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Appeal: 15-6130 Doc: 63 Filed: 12/19/2016 Pg: 1 of 9 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-6130 ALBERTO MARQUEZ CRUZ, Petitioner - Appellant, v. BOB W. MARSHALL; KIERAN J. SHANAHAN,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 Vacated and remanded by unpublished per curiam opinion.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. Appeal: 15-6130 Doc: 63 Filed: 12/19/2016 Pg: 2 of 9 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 Appeal: 15-6130 Doc: 63 Filed: 12/19/2016 Pg: 3 of 9 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), 3 Appeal: 15-6130 Doc: 63 Filed: 12/19/2016 Pg: 4 of 9 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 Appeal: 15-6130 Doc: 63 Filed: 12/19/2016 ordered the State to merits, the State moved Pg: 5 of 9 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. 5 Appeal: 15-6130 Doc: 63 Filed: 12/19/2016 Pg: 6 of 9 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. 6 Appeal: 15-6130 Doc: 63 Filed: 12/19/2016 Pg: 7 of 9 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. 7 Appeal: 15-6130 Doc: 63 Filed: 12/19/2016 Pg: 8 of 9 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 Appeal: 15-6130 facts Doc: 63 Filed: 12/19/2016 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 Pg: 9 of 9 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 9

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