DeShaw v. Ryan et al

Filing 18

ORDER accepting and adopting the 13 Report and Recommendation. The Petition in this case is dismissed, without prejudice, and the Clerk of the Court shall enter judgment accordingly. Pursuant to Rule 11 of the Rules Governing Section 2254 Cases , in the event Petitioner files an appeal, the Court denies issuance of a certificate of appealability because dismissal of the petition is based on a plain procedural bar and jurists of reason would not find this Court's procedural ruling de batable. FURTHER ORDERED that, if counsel did not send Petitioner a copy of the December 21, 2016 Order, Petitioner may timely file a Rule 59 motion and contemporaneously file his objections to the R&R, and the Court will consider those objections. The Clerk of the Court must update the docket to reflect Petitioner's pro se status, and mail a copy of both this Order and Doc. 17 to Petitioner. Signed by Senior Judge James A Teilborg on 01/20/2017. (ATD)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Scott Lee DeShaw, Petitioner, 10 11 ORDER v. 12 No. CV-15-00892-PHX-JAT Charles L Ryan, et al., 13 Respondents. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On December 21, 2016, this Court issued the following Order: Pending before the Court is the Report and Recommendation (“R&R”) from the Magistrate Judge recommending that this case be dismissed for lack of jurisdiction. (Doc. 13). The R&R makes this recommendation because the Petition in this case is a second or successive petition filed without permission from the Court of Appeals to file another case. (Doc. 13 at 3). Prior to filing the Petition in this case, Petitioner filed a request for leave to file a second or successive petition with the Ninth Circuit Court of Appeals. (Doc. 13 at 3). The Ninth Circuit Court of Appeals appointed Petitioner counsel for that case. His counsel in that case has now filed a motion to be appointed as his counsel in this case and in any ancillary state court proceedings. (Doc. 14). In the motion for appointment, counsel correctly recounts that one factor the court should consider in deciding whether to appoint counsel is Petitioner’s likelihood of success on the merits. (Doc. 14 at 2). Counsel then argues that Petitioner’s Miller claim is likely to succeed on the merits. (Doc. 14 at 2-3). However, counsel makes no argument that this Court will ever reach the Miller claim in this case. In other words, counsel makes no argument that would overcome the R&R’s conclusion that this Court is without jurisdiction to hear this case. Therefore, without expressing any opinion on the substance of Petitioner’s Miller claim; the Court sees no likelihood of success in this case. Based on the foregoing, 1 2 3 4 5 6 7 IT IS ORDERED that the motion for appointment of counsel (Doc. 14) is denied in full. IT IS FURTHER ORDERED that the motion for status conference (Doc. 16) is denied. IT IS FINALY ORDERED that the motion for extension of time (Doc. 15) is granted such that Petitioner has until January 6, 2017, to file his objections to the R&R (Doc. 13). (Doc. 17). To date, Petitioner has not filed any objections to the R&R. Accordingly, the R&R will be accepted and adopted.1 8 However, it is unclear to the Court whether Petitioner received a copy of the 9 December 21, 2016 Order. Specifically, when counsel filed the motion for appointment, 10 he added himself to the docket as Petitioner’s counsel; rather than as a Movant, thereby 11 removing Petitioner himself from this Court’s mailing list for the distribution of Orders. 12 The Court assumes counsel mailed a copy of the Order to Petitioner, as counsel was 13 intercepting Petitioner’s mail from the Court; but the Court cannot be sure this occurred. 14 Therefore, to the extent Petitioner did not file objections solely because he never received 15 this Court’s December 21, 2016 Order, if Petitioner files a timely Rule 59 motion to set 16 aside the judgment, and contemporaneously files his objections to the R&R, the Court 17 will re-open this case for purposes of considering the objections and deem them to be 18 timely filed. 19 Accordingly, 20 21 22 23 24 25 26 27 28 1 This Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that the district judge must review the magistrate judge’s findings and recommendations de novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that de novo review of factual and legal issues is required if objections are made, ‘but not otherwise.’”); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 1027, 1032 (9th Cir. 2009) (the district court “must review de novo the portions of the [Magistrate Judge=s] recommendations to which the parties object.”). District courts are not required to conduct “any review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28 U.S.C. ' 636(b)(1) (“the court shall make a de novo determination of those portions of the [report and recommendation] to which objection is made.”). -2- 1 IT IS ORDERED that the Report and Recommendation (Doc. 13) is accepted and 2 adopted. The Petition in this case is dismissed, without prejudice, and the Clerk of the 3 Court shall enter judgment accordingly. 4 IT IS FURTHER ORDERED that pursuant to Rule 11 of the Rules Governing 5 Section 2254 Cases, in the event Petitioner files an appeal, the Court denies issuance of a 6 certificate of appealability because dismissal of the petition is based on a plain procedural 7 bar and jurists of reason would not find this Court=s procedural ruling debatable. See 8 Slack v. McDaniel, 529 U.S. 473, 484 (2000). 9 IT IS FURTHER ORDERED that, if counsel did not send Petitioner a copy of 10 the December 21, 2016 Order, Petitioner may timely file a Rule 59 motion and 11 contemporaneously file his objections to the R&R, and the Court will consider those 12 objections. 13 IT IS FINALLY ORDERED that the Clerk of the Court must update the docket 14 to reflect Petitioner’s pro se status, and mail a copy of both this Order and Doc. 17 to 15 Petitioner. 16 Dated this 20th day of January, 2017. 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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