Sernas v. Ryan et al

Filing 20

ORDER ADOPTING 14 Magistrate Judge Duncan's Report and Recommendation. Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied because dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable. The Clerk shall terminate this action and enter judgment. Signed by Judge Diane J Humetewa on 6/16/16. (LSP)

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1 NOT FOR PUBLICATION 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Adam Bernard Sernas, Petitioner, 10 11 ORDER v. 12 No. CV-14-00954-PHX-DJH Charles L. Ryan and Attorney General of the State of Arizona, 13 14 Respondents. 15 16 This matter is before the Court on pro se Petitioner’s Petition for Writ of Habeas 17 Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) and the Report and Recommendation 18 (“R&R”) by United States Magistrate Judge David K. Duncan (Doc. 14). Magistrate 19 Judge Duncan recommended denial of this Petition as untimely, and he further found that 20 Petitioner was not entitled to equitable tolling. Petitioner timely filed objections to the 21 R&R. (Doc. 17). Respondents filed none. 22 I. Background 23 In the R&R, the Magistrate Judge accurately and fully set forth the procedural 24 background of this case. The Court need not repeat the same herein, especially given that 25 Petitioner is not objecting to any of the Magistrate Judge’s recitation of the background. 26 See Thomas v. Arn, 474 U.S. 140, 149 (1989) (The relevant provision of the Federal 27 Magistrates Act, 28 U.S.C. § 636(b)(1)(C), “does not on its face require any review at all 28 . . . of any issue that is not the subject of an objection.”) Likewise, because Petitioner’s 1 objections are framed strictly in terms of the Magistrate Judge’s findings and analysis of 2 equitable tolling, the Court will limit its review accordingly. 3 II. R & R 4 In discussing the possibility of equitable tolling, the Magistrate Judge construed 5 Sernas’ Petition as arguing, much like Sernas did in his 2012 Rule 32 State Court 6 proceedings, that Martinez v. Ryan, 132 S.Ct. 1309 (2012) and Melendez-Diaz v. 7 Massachusetts, 5523 U.S. 305 (2009), “are changes in law that entitle him to file an 8 untimely petition under Arizona Rules of Criminal Procedure 32.1(f) and 32.3(b).” (Doc. 9 14 at 4:14-16) (citation omitted). The Magistrate Judge found this argument “unavailing” 10 for two reasons: (1) “Martinez does not address the limitations bar in Section 2244(d)(2) 11 and it does not excuse an untimely habeas petition[;]” and (2) “Melendez-Diaz has not 12 been made retroactive by the U.S. Supreme Court or the Ninth Circuit.” (Id. at 4:17-22) 13 (citations omitted). 14 Continuing, the Magistrate Judge further found that “even if Melendez-Diaz had 15 restarted Sernas’ one year clock, this argument still fails.” (Id. at 4:22-23). 16 explained the Magistrate Judge, because Melendez-Diaz “was issued on June 25, 2009,” 17 18 19 20 21 22 23 24 25 26 27 28 It fails, yet “Sernas did not raise this argument until more than three years later in his 2012 Rule 32 proceedings, and his alleged ignorance of this case does not entitle him to tolling.” (Id. at 4:24-28) (citing Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (“a pro se petitioner’s lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling”)). III. Standard of Review This Court must “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which” Petitioner is objecting. 28 U.S.C. § 636(b)(1)(C); see also Fed.R.Civ.P. 72(b)(3) (“The district judge must determine de novo any part of the magistrate judge’s disposition that has been properly objected to.”); U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (same). This means that in the present case the Court must consider de novo the Magistrate Judge’s finding and Petitioner’s objections thereto that Petitioner is not entitled to equitable -2- 1 tolling. In undergoing this review, this Court "may accept, reject, or modify, in whole or 2 in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 3 636(b)(1)(C); Fed.R.Civ.P. 72(b)(3). 4 IV. Analysis 5 Petitioner objects to the R&R’s findings and analysis with respect to Martinez and 6 Melendez-Diaz. Despite what the Magistrate Judge found, Petitioner asserts Martinez 7 entitles him to “equitable tolling of any ‘untimely’ period[.]” (Doc. 17 at 4). Petitioner 8 similarly asserts, again contrary to the Magistrate Judge’s finding, that Melendez-Diaz 9 entitles him to equitable tolling. (Id.). Petitioner has been unsuccessfully making these 10 arguments since at least August 30, 2012 in post-conviction State Court proceedings. 11 (Doc. 9-2 at 9). Petitioner’s arguments gain nothing by repetition. This is especially so 12 given that parts of Petitioner’s objections discussing Martinez and Melendez-Diaz are 13 identical to those raised in his Limited Traverse and soundly rejected by the Magistrate 14 Judge in the R&R. Compare Doc. 13 (2-3; and 4 at ¶ 1)) with Doc. 17 (2-3; 4 at ¶ 1)); 15 and at 5 at ¶ (D)). Differently put, Petitioner is not expanding his objections beyond 16 those already soundly rejected in the R&R. As he has done since at least August 30, 2012, Petitioner continues to assert that 17 18 19 20 21 22 23 24 25 26 27 28 once he learned of Melendez-Diaz, he diligently pursued his rights thereunder. (Doc. 17 at 4). Of course, Petitioner’s assertion overlooks the Magistrate Judge’s conclusion (to which Petitioner did not object) that “Melendez-Diaz has not been made retroactive by the U.S. Supreme Court of the Ninth Circuit[,]” (Doc. 14 at 4:21-22) (citing Meras v. Sisto, 676 F.3d 1184, 1188 (9th Cir. 2012)). Thus, it is simply irrelevant whether Petitioner was diligent in pursuing his rights thereunder. What is more, although Petitioner admittedly is “unsophisticated in the law[]” for a variety of reasons (Doc. 9-2 at 9), as the Magistrate Judge also soundly reasoned, without more, that is not “an extraordinary circumstance warranting equitable tolling.” See Rasberry, 448 F.3d at 1154. Having found no merit to Petitioner’s objections, IT IS ORDERED that Magistrate Judge Duncan’s Report and Recommendation -3- 1 (Doc. ) is accepted and adopted as the Order of this Court. Petitioner’s Objections (Doc. 2 17) are overruled. 3 IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing 4 Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis 5 on appeal are denied because dismissal of the Petition is justified by a plain procedural 6 bar and jurists of reason would not find the procedural ruling debatable. 7 8 9 IT IS FINALLY ORDERED that the Clerk of the Court shall terminate this action and enter judgment accordingly. Dated this 16th day of June, 2016. 10 11 12 Honorable Diane J. Humetewa United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-

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