Gonzalez v. Ryan et al

Filing 15

ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION 12 - IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1 ) is denied and dismissed with prejudice. IT IS FURTHER ORDERED that a Certif icate of Appealability and leave to proceed in forma pauperis on appeal are denied because dismissal of the petition is justify by a plain procedural bar and jurists of reason would not find the ruling debatable. IT IS FINALLY ORDERED directing the Clerk of the Court to terminate this action and enter judgment accordingly. (See document for further details). Signed by Judge Diane J Humetewa on 11/28/16. (LAD)

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NOT FOR PUBLICATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jacob Gonzalez,
Petitioner,

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ORDER

v.

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No. CV-14-00496-PHX-DJH

Charles L Ryan, et al.,

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Respondents.

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This matter is before the Court on Petitioner’s Writ of Habeas Corpus pursuant to

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28 U.S.C. § 2254 (Doc. 1) and the Report and Recommendation (“R & R”) by United

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States Magistrate Judge David K. Duncan. (Doc. 12). Finding that the petition was

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untimely, and that petitioner Jacob Gonzalez was not entitled to equitable tolling, Judge

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Duncan recommended denial of the petition and dismissal with prejudice.

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Magistrate Judge “further recommended that a Certificate of Appealability and leave to

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proceed in forma pauperis on appeal be denied because dismissal of the petition is

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justified by a plain procedural bar and jurists of reason would not find the ruling

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debatable.” (Id. at 5:6-9) (emphasis omitted). Thereafter, the R & R expressly informed

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the parties that they were entitled to "file specific written objections with the Court[]” and

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a response to any such objections. (Id. at 5:14) (emphasis added). Concluding, the R &

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R warned that “[f]ailure timely to file objections to any factual determinations of the

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Magistrate Judge will be considered a waiver of a party’s right to appellate review of the

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findings of fact in an order or judgment entered pursuant to the Magistrate Judge’s

The

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recommendation.” (Id. at 5:20-22) (citation omitted). Petitioner timely filed objections

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to the R & R (Doc. 13), and Respondents timely filed a response thereto (Doc. 14).

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I. Standard of Review
The relevant provision of the Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C),
“does not on its face require any review at all . . . of any issue that is not the subject of an
objection.” Thomas v. Arn, 474 U.S. 140, 149 (1989); see also United States v. ReynaTapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (citations omitted) ("Neither the Constitution
nor the statute requires a district judge to review, de novo, findings and recommendations
that the parties themselves accept as correct."). Conversely, a "district judge must
determine de novo any part of the magistrate judge’s disposition that has been properly
objected to.” Fed.R.Civ.P. 72(b)(3) (emphasis added); see also 28 U.S.C. § 636(b)(1)
emphasis added) ("A judge of the court shall make a de novo determination of those
portions of the report . . . or recommendations to which objection is made.") “Although
the Ninth Circuit has not yet ruled on the matter, other circuits and district courts within
the Ninth Circuit have held when a petitioner raises a general objection to an R & R,
rather than specific objections, the Court is relieved of any obligation to review it.”
Martin v. Ryan, 2014 WL 5432133, at *2 (D. Ariz. 2014) (citing See, e.g., Warling v.
Ryan, 2013 WL 5276367, at *2 (D.Ariz. 2013) (“[A] general objection ‘has the same
effect as would a failure to object.’”); Gutierrez v. Flannican, 2006 WL 2816599
(D.Ariz. 2006) (citing Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984); Lockert v. Faulkner,
843 F.2d 1015, 1019 (7th Cir.1988); Howard v. Sec. of Health and Human Servs., 932
F.2d 505, 509 (6th Cir.1991); United States v. One Parcel of Real Prop., 73 F .3d 1057,
1060 (10th Cir.1996)).
II. R & R
Judge Duncan recited the factual and procedural background of this petition and
included cites to relevant portions of the record. (Doc. 12 at 23-2:27). In his petition,
Gonzalez argued for equitable tolling of the one year period for filing his petition. The
obvious implication, as Judge Duncan stated, is that Petitioner “acknowledges[] [that] his
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petition is untimely.” (Id. at 12:5). To be complete though, Judge Duncan analyzed the

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issue of whether Gonzalez’ petition was untimely and soundly concluded that it was not –

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having been filed nearly five years late.

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Turning to the issue of equitable tolling, Judge Duncan found that Petitioner could

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not avail himself of that doctrine because Petitioner did not address much less satisfy his

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burden of showing that “he pursued his rights diligently and that some extraordinary

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circumstance prevented him from filing the petition.” (Doc. 12 at 4:8-10) (citing Holland

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v. Florida, 560 U.S. 631, 649 (2010)). Instead, relying upon Martinez v. Ryan, 132 S.Ct.

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1309 (2012) and Ha Van Nguyen v. Curry, 736 F.3d 1287 (9th Cir. 2013), Petitioner

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argued that he was entitled to file an untimely habeas petition.

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Judge Duncan found Petitioner’s argument based upon Martinez to be

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“unpersuasive because Martinez does not address the limitations bar in Section

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2244(d)(2) and it does not excuse an untimely habeas petition. (Id. at 4:13-17) (E.g.,

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Madueno v. Ryan, 2014 WL 2094189, at *7 (D. Ariz. May 20, 2014); Marshall v. Ryan,

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2014 WL 710954, at *5 (D. Ariz. Feb. 25, 2014); Moreno v. Ryan, 2014 WL 24151, at *5

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(D. Ariz. Jan. 2, 2014)).

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argument that in Ha Van Nguyen “the Ninth Circuit extended Martinez to allow for

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untimely habeas petitions[.]” (Id. at 4:18-20). Judge Duncan offered the following

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rationale:

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Further, Judge Duncan found “unavailing” Petitioner’s

[U]nlike here, Ha Van Nguyen involved an attempt to add a
claim to a timely filed habeas petition after the expiration of
the statute of limitations. . . . Because Gonzalez never timely
filed a habeas petition, there has never been a petition that he
can use to relate back his claims of ineffective assistance of
counsel.
(Id. at 4:20-23) (citation omitted).

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Judge Duncan also rejected Petitioner’s final argument for equitable tolling,

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namely that “his current counsel could not timely obtain a copy of his legal file from his

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previous counsel.” (Doc. 12 at 4:24-25) (citation omitted). Judge Duncan rejected this

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argument for two reasons.

First, Petitioner did not provide the necessary factual

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predicate to support equitable tolling. More particularly, Petitioner did “not include the

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date of the request, the length of the delay or any other facts that would bring this case

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within the scope of Spitsyn v. Moore, 345 F.3d 796, 800 (9th Cir. 2003), as amended

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(Nov. 3, 2003).” (Id. at 4: 26-27). Continuing, Judge Duncan further reasoned that “the

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nearly five-year delay in filing [Petitioner’s] habeas petition raises a substantial question

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regarding [his] diligence in seeking to obtain his file.” (Id. at 4:28-5:2). Finally, Judge

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Duncan pointed out that Petitioner’s nearly five year delay “is far beyond the seven or 20

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day delay resulting from a withheld file as noted in Lott v. Mueller, 304 F.3d 918, 925

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(9th Cir. 2002).” (Id. at 5:2-3).

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III. Objections and Response

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Petitioner did not object at all to the R & R’s “Background” section.1 Nor did

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Petitioner object in any way to Judge Duncan’s analysis of the statute of limitations issue

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and his finding of untimeliness. Instead, cutting and pasting from his memorandum in

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support of his petition, Petitioner repeats verbatim his argument that he is entitled to

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equitable tolling. Compare Doc. 2 at 8:18-9:11 with Doc. 13 at 3:1-6; and compare Doc.

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2 at 12:3-9 with Doc. 13 at 3:17-4:2. Petitioner concludes by “ask[ing] this Court to

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reject” the recommendation that his Petition be dismissed and to, instead, “consider the

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merits of the Petition.” (Doc. 13 at 4:7-8).

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According to Respondents, “this Court has no obligation to conduct a review of

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the R & R before adopting it.” (Doc. 14 at 3) (citation omitted). Respondents are taking

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this position for two closely related reasons. First, in his objections, Petitioner did not

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identify “any specific flay” in Judge Duncan’s analysis. (Id.). Second, Respondents

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accurately state that Petitioner did not “provide any specific reason why . . . Judge[]

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[Duncan’s] finding—that Martinez and Nguyen are not applicable to his case—is

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In his objections, Petitioner “relie[d] on the facts as set forth in his
Memorandum in Support of Petition for Writ of Habeas Corpus filed on March 13,
2014.” (Doc. 13 at 2:11-12) (citation omitted).
To the extent Petitioner may be
suggesting that there is some discrepancy between the facts relied upon by Judge Duncan
and those in Petitioner’s Memorandum, the obligation was on Petitioner to specifically
object to Judge Duncan’s background. Petitioner did not do that, however, as noted
above.
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incorrect[,]” and this “his objection has the same effect as would a failure to object.” (Id.

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at 3) (citing Warling, 2013 WL 5276367, at *2) (internal quotation marks and other

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citations omitted). Rather, Respondents contend that in his objections Petitioner merely

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“reiterates” earlier arguments made in his petition and his reply. (Id. at 2). Respondents

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are correct.

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IV. Failure to Make Specific Objections

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Petitioner’s objections lack the requisite specificity, which is fatal. The “obvious

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purpose” of the specificity requirement “is judicial economy—to permit magistrate

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judges to hear and resolve matters not objectionable to the parties.” Warling, 2013 WL

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5276367, at *2. (citing Thomas, 474 U.S. at 149; Reyna–Tapia, 328 F.3d at 1121).

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“Because de novo review of an entire R & R would defeat the efficiencies intended by

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Congress, a general objection “has the same effect as would a failure to object.” Id.

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(citing Howard, 932 F.2d at 509; Haley v. Stewart, 2006 WL 1980649, at *2 (D.Ariz.

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2006)). Furthermore, “[w]here, as here, Petitioner's objections point to not a single flaw

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in the R&R's analysis, they have the same effect as would a complete failure to object.”

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See Price v. Ryan, 2016 WL 344466, at *1 (D. Ariz. Jan. 28, 2016) (citing Warling, 2013

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WL 5276367 at *2).

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Duncan’s R & R, the Court has not obligation to and will not review Petitioner’s so-

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called “objections.”

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V. CONCLUSION

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Accordingly,

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IT IS ORDERED that Magistrate Judge Duncan’s R&R (Doc. 12) is accepted

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Given the complete lack of any specific objections to Judge

and adopted as the order of this Court.
IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 (Doc. 1) is denied and dismissed with prejudice.

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IT IS FURTHER ORDERED that a Certificate of Appealability and leave to

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proceed in forma pauperis on appeal are denied because dismissal of the petition is

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justify by a plain procedural bar and jurists of reason would not find the ruling debatable.

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IT IS FINALLY ORDERED directing the Clerk of the Court to terminate this
action and enter judgment accordingly.
Dated this 28th day of November, 2016.

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Honorable Diane J. Humetewa
United States District Judge

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