Olmos v. Ryan et al

Filing 93

ORDER ADOPTING REPORT AND RECOMMENDATION. IT IS ORDERED that Magistrate Judge Bade's R&R (Doc. 87 ) is accepted; that Claim Thirteen of Petitioner's Petition of Writ of Habeas Corpus (Doc. 1 ) is denied and dismissed for lack of juris diction; that Petitioner's Motion for Certificate of Appealability (Doc. 88 ) is denied; that pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, in the event Petitioner files an appeal, the Court declines to issue a certificate of appealability because reasonable jurists would not find the Court's procedural ruling debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Signed by Judge G Murray Snow on 3/10/2014. (ALS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Timothy Paul Olmos,
Petitioner,

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ORDER

v.

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No. CV-11-00344-PHX-GMS

Charles L. Ryan, et al.,

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Respondents.

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Pending before this Court are a Report and Recommendation (R&R) issued by

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Magistrate Judge Bridget S. Bade regarding Claim Thirteen of Petitioner Timothy Paul

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Olmos’s Petition for Habeas Corpus (Doc. 87) and Petitioner’s Motion for Certificate of

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Appealability (Doc. 88). For the following reasons, the Court accepts the R&R, denies

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Petitioner’s request for relief on Claim Thirteen, and denies Petitioner’s Motion for a

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Certificate of Appealability.

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BACKGROUND

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Olmos was indicted on one count of child molestation, one count of sexual

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conduct with a minor, and one count of sexual abuse in Maricopa Superior Court on

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August 20, 2004. (Doc. 40-1, Ex. A.) Under each count, the State alleged that Olmos had

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committed a dangerous crime against children. On February 25, 2005, the jury returned a

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verdict of guilty on the charges of child molestation and sexual abuse, but were unable to

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arrive at a verdict on the charge of sexual conduct with a minor. (Id., Ex. C.) The trial

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court imposed a mitigated 15-year prison sentence, placed Olmos on lifetime probation,

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and required him to register as a sex offender. (Doc. 40-4, Exs. E, F.)

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As detailed in this Court’s earlier order concerning Olmos’s Petition for Habeas

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Corpus, Olmos appealed his conviction and sentence, filed four petitions for post-

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conviction relief, and eventually filed the instant writ of habeas corpus in federal court.

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(Doc. 78 at 2–3.) Olmos’s federal petition asserted fourteen grounds for relief. (Doc. 1.)

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In his Claim Thirteen, Olmos alleged that the registration requirements of the Sex

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Offender Registration and Notification Act (“SORNA”) violate his First Amendment

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rights. (Doc. 1 at 24.) Magistrate Judge Bade issued an R&R recommending denial of the

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Petition and Certificate of Appealability. (Doc. 67.) Olmos timely filed objections to that

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R&R, and the Court reviewed the Petition de novo. (Doc. 78.) The Court ultimately

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accepted in part and denied in part Judge Bade’s R&R. (Id. at 36.) Because it had not

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been briefed, the Court did not make a merits determination regarding Claim Thirteen.

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Instead, the Court ordered that the parties file supplemental briefing on the issue, and

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referred the case back to Magistrate Judge Bade for further consideration. (Id. at 34.)

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The parties filed their supplemental briefing (Docs. 80, 85, 86) and Magistrate

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Judge Bade issued a second R&R solely on this claim (Doc. 87). In her R&R, Magistrate

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Judge Bade recommended dismissal of Claim Thirteen on the grounds that Olmos’s First

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Amendment challenge is not cognizable under 28 U.S.C. § 2254, and thus the Court lacks

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jurisdiction to hear the claim in that context. (Doc. 87.) Olmos did not file objections to

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Judge Bade’s second R&R, but did file a Motion for Certificate of Appealability. (Doc.

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88.) While the Court would typically treat this Motion as timely filed objections, Olmos

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did not raise any arguments related to Claim Thirteen in his Motion. Thus, the Court is

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unable to consider the Motion to include any timely filed objections to Magistrate Judge

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Bade’s second R&R. The Court will review the second R&R and will then consider

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Olmos’s Motion.
Discussion

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I.

Report and Recommendation Regarding Claim Thirteen

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Petitioner did not file objections, which relieves the Court of its obligation to

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review the R&R. See United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003);
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Thomas v. Arn, 474 U.S. 140, 149 (1985) (“[Section 636(b)(1)] does not . . . require any

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review at all . . . of any issue that is not the subject of an objection.”); Fed. R. Civ. P.

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72(b)(3) (“The district judge must determine de novo any part of the magistrate judge's

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disposition that has been properly objected to.”). The Court has nonetheless reviewed the

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R&R and finds that it is well-taken. The Court agrees that Petitioner’s First Amendment

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challenge to SORNA’s registration requirement lacks the necessary nexus to his custody

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required to confer jurisdiction under 28 U.S.C. § 2254(a).

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The Court will accept the R&R and deny Claim Thirteen of the Petition (Doc. 1 at

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24), having dismissed the other counts of the Petition in response to Magistrate Judge

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Bade’s first R&R in this case (Doc. 78). See 28 U.S.C. § 636(b)(1) (stating that the

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

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recommendations made by the magistrate”); Fed. R. Civ. P. 72(b)(3) (“The district judge

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may accept, reject, or modify the recommended disposition; receive further evidence; or

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return the matter to the magistrate judge with instructions.”).

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II.

Motion for Certificate of Appealability

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Petitioner moves for a Certificate of Appealability. (Doc. 88.) He seeks to appeal

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regarding seven issues: (1) whether the Court erred by refusing to accept his

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supplemental memorandum; (2) whether the Court erred when it ruled he had not

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overcome the procedural bar on his claim regarding the State’s use of peremptory

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challenges; (3) whether the Court erred in its analysis of Claim Six; (4) whether the Court

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erred in ruling that SORNA complies with the necessary and proper clause as applied to

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individuals convicted in state court; (5) whether the Court erred when it denied his

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motion to stay his mixed petition while he exhausted certain claims in state court; (6)

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whether the Court erred when it found that SORNA does not violate the Equal Protection

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Clause; and (7) whether the Court erred when it found Claims One, Two, Four, Five,

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Eight, Ten, and Fourteen were procedurally barred. (Doc. 88 at 1–2.)

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In her first and second R&Rs (Doc. 67 at 30; Doc. 87 at 9), Magistrate Judge Bade

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recommended that the Certificate of Appealability be denied as the dismissal of the
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Petition is justified by a plan procedural bar and because Petitioner has not made a

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substantial showing of the denial of a constitutional right. The Court agrees. Pursuant to

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Rule 11(a) of the Rules Governing Section 2254 Cases, the Court declines to issue a

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Certificate of Appealability because reasonable jurists would not find the Court’s

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

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Therefore,

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IT IS ORDERED that Magistrate Judge Bade’s R&R (Doc. 87) is accepted.

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IT IS FURTHER ORDERED that Claim Thirteen of Petitioner’s Petition of Writ

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of Habeas Corpus (Doc. 1) is denied and dismissed for lack of jurisdiction.
IT IS FURTHER ORDERED that Petitioner’s Motion for Certificate of
Appealability (Doc. 88) is denied.

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IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing

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Section 2254 Cases, in the event Petitioner files an appeal, the Court declines to issue a

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certificate of appealability because reasonable jurists would not find the Court’s

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

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Dated this 10th of March, 2014.

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