Warling # 087473 v. Ryan et al

Filing 21

ORDER ACCEPTING REPORT AND RECOMMENDATION 15 - Petitioner's petition for writ of habeas corpus (Doc. 1 ) is denied. A certificate of appealability and leave to proceed in forma pauperis on appeal are denied because Petitioner has not made a substantial showing of the denial of a constitutional right as required by 28 U.S.C. § 2253(c)(2). The Clerk shall terminate this action. (See document for further details). Signed by Judge David G Campbell on 9/19/13. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Kareem Eli Warling,
Petitioner,

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ORDER

v.

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No. CV 12-01396-PHX-DGC (SPL)

Charles L. Ryan, et al.,
Respondents.

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Pending before the Court are the petition for writ of habeas corpus filed by pro se

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Petitioner Kareem Eli Warling (Doc. 1) and the Report and Recommendation (“R&R”)

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issued by Magistrate Judge Steven P. Logan (Doc. 15). The R&R recommends that the

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petition be denied because it is time-barred under the Antiterrorism and Effective Death

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Penalty Act (AEDPA) and no statutory or equitable tolling is available. Petitioner filed a

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response to the R&R. Doc. 16. Petitioner has not requested oral argument. For the

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reasons that follow, the Court will accept the R&R and deny the petition.

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I.

Background.

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Petitioner does not object to the R&R’s recitation of facts, and therefore the Court

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adopts it summarily. On December 12, 1990, a grand jury indicted Petitioner on one

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count of aggravated assault, a class 3 dangerous felony. Doc. 13-1 at 21. In a separate

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case, Petitioner was charged on June 24, 1991 with three counts of sexual conduct with a

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minor (Case No. CR 1991-05542). Id. at 37-38. In the latter case, Petitioner pled guilty

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to one count of sexual conduct with a minor, a class 6 felony. Id. at 43-61. The

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remaining counts and allegations of prior felony convictions were dismissed. Id. A jury

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found Petitioner guilty of aggravated assault on August 9, 1991.

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sentencing purposes, the trial court consolidated the two cases.

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October 1, 1991, the trial court sentenced Petitioner to 1.5 years for the class 6 felony and

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15 years for the class 3 felony, to be served concurrently. Id. at 66-94.1

Id. at 76.

For

Id. at 63-64.

On

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Petitioner filed timely notices of appeal in both cases (Doc. 13-2 at 7), and the

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Arizona Court of Appeals affirmed the convictions and sentences on May 25, 1993 (id. at

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22-27). Petitioner filed a timely petition for review (id. at -29), which the Arizona

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Supreme Court summarily denied on December 1, 1993 (id. at 58).

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On April 5, 1993, Petitioner filed a timely Notice of Post-Conviction Relief.

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Doc. 13-2 at 18-20. Petitioner’s court-appointed counsel filed notice in the trial court that

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he did not find any colorable claim for relief, and sought leave to allow Petitioner to file a

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pro per petition. Id. at 48-49. Petitioner did not file a pro per petition. The trial court

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summarily dismissed the proceedings on October 4, 1993. Id. at 51-56.

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More than 15 years later, on August 4, 2009, Petitioner filed a second Notice and

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Petition for Post-Conviction Relief. Doc. 13-2 at 105-27. The trial court dismissed the

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petition on March 10, 2010. Id. at 129-30. The Arizona Court of Appeals denied review

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on September 21, 2011 (id. at 153), and the Arizona Supreme Court denied review on

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February 23, 2012 (id.at 164). Petitioner then filed the present petition. Doc. 1.

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II.

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Standard of Review.
The Court may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by a magistrate judge in a habeas case.

See 28 U.S.C.

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§ 636(b)(1). The Court must undertake a de novo review of those portions of the R&R to

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which specific objections are made. See id.; Fed. R. Civ. P. 72(b)(3); United States v.

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On October 10, 1991 the trial court re-sentenced Petitioner to incorporate
Petitioner’s prior felony convictions, but all other terms of the sentence remained the
same. Doc. 13-1at 96-99.

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Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).

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III.

Analysis.

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Petitioner’s “Response to Report and Recommendation” contains no specific

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objections. Instead, the response argues generally that the petition is not time-barred

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because the AEDPA statute of limitations does not apply and Petitioner exhausted his

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state court remedies. Doc. 16 at 2-3. Judge Logan determined that the AEDPA, 28

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U.S.C. § 2244, governs habeas corpus petitions filed after its effective date, see Lindh v.

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Murphy, 521 U.S. 320, 326-27 (1997), including Petitioner’s petition. Doc. 15 at 5-8 &

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n.7. The Court agrees.

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Petitioner’s contention that he exhausted his state court remedies does not

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establish that his petition is timely. Judge Logan made no finding as to exhaustion, but

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instead determined that statutory and equitable tolling were not available (id. at 8-11) and

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that the petition is time-barred because the AEDPA statute of limitations, including the

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one-year grace period, expired on April 24, 1997 (id. at 8).

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Petitioner’s response is an ineffective general objection. Under Federal Rule of

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Civil Procedure 72(b), the district judge must review de novo those portions of the R&R

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

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“specific written objections to the proposed findings and recommendations.”

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(emphasis added); see 28 U.S.C. § 636(b)(1). An obvious purpose of this requirement is

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judicial economy – to permit magistrate judges to hear and resolve matters not

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objectionable to the parties. See Thomas v. Arn, 474 U.S. 140, 149 (1985); Reyna-Tapia,

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328 F.3d at 1121.

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efficiencies intended by Congress, a general objection “has the same effect as would a

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failure to object.” Howard v. Sec’y of HHS, 932 F.2d 505, 509 (6th Cir. 1991); Haley v.

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Stewart, No. CV-02-1087-PHX-DGC (CRP), 2006 WL 1980649, at *2 (D. Ariz. July 11,

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2006). As a result, the Court has no obligation to review Petitioner’s general objection to

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the R&R. See Thomas, 474 U.S. at 149 (no review at all is required for “any issue that is

Id.

Because de novo review of an entire R&R would defeat the

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not the subject of an objection.”).

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IT IS ORDERED:

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1.

Magistrate Steven P. Logan’s R&R (Doc. 15) is accepted.

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2.

Petitioner’s petition for writ of habeas corpus (Doc. 1) is denied.

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3.

A certificate of appealability and leave to proceed in forma pauperis on

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appeal are denied because Petitioner has not made a substantial showing of the denial of

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a constitutional right as required by 28 U.S.C. § 2253(c)(2).

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4.

The Clerk shall terminate this action.

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Dated this 19th day of September, 2013.

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