Rojas #158837 v. Ryan et al

Filing 15

ORDER adopting the Report and Recommendation in this matter (Doc. 14 ); FURTHER ORDERED denying as moot Petitioner's Motion to Stay Pending Exhaustion of State Court Remedies (Doc. 4 ); FURTHER ORDERED granting Respondents' request for st ay pending a decision by the Supreme Court of the United States in Montgomery v. Louisiana, 135 S. Ct. 1546 (Doc. 11 ); IT IS FURTHER ORDERED that upon the Supreme Court's issuance of a decision in Montgomery, the parties shall file a notice of the decision with this Court, whereupon the Court shall lift the stay. Signed by Judge John J Tuchi on 1/28/2016. (KMG)

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NOT FOR PUBLICATION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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Richard Rojas,

No. CV-15-00933-PHX-JJT
Petitioner,

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v.

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ORDER

Charles L. Ryan, et al.,

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Respondents.

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At issue is Petitioner’s Motion to Stay Pending Exhaustion of State Court

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Remedies (Doc. 4); and the Report and Recommendation (Doc. 14)(“R&R”) submitted in

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this matter by United States Magistrate Judge John Z. Boyle, to which no party has filed

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objections despite the time to do so having expired. The R&R recommends that the

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Court deny Petitioner’s Motion to Stay as moot, because since its filing, the Supreme

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Court of Arizona has denied review of his post-conviction relief proceedings. But it

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recommends granting Respondents’ request for a stay pending a decision by the Supreme

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Court of the United States in Montgomery v. Louisiana, 135 S. Ct. 1546, a matter pending

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in the current term.

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Where a party fails to object to an R&R, the Court is free to accept the R&R

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without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.

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2003). Judge Boyle so advised the parties in the R&R. (Doc. 14 at pp. 8-9). Though

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pursuant to the above law the Court is free to accept the R&R without more, it has

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nonetheless conducted a review of the entire docket in this matter. Upon that review, the

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Court concludes that Judge Boyle’s recommendations are well taken and correctly apply

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the law throughout. The Court adopts the reasoning of the R&R in whole.

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On July 21, 2015, the Supreme Court of Arizona denied review of Petitioner’s

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Petition for post-Conviction relief. (Doc. 12-3, Exh. X). Upon that denial, the R&R

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correctly concluded that Petitioner’s Motion in the instant matter is moot, and the Court

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will deny it as such.

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Respondents have nonetheless requested a stay of the habeas matter, because the

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determination of Montgomery by the Supreme Court of the United States will impact this

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Court’s analysis of whether Petitioner’s habeas claims are time-barred, and whether they

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succeed or fail on their merits. The Court concludes, as Judge Boyle recommends, that

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the stay Respondents request is appropriate. If, in deciding Montgomery, the Supreme

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Court determines that its prior holding in Miller v. Alabama, 132 S. Ct. 2455 (2012)—

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that the Eighth Amendment forbids a sentencing scheme that mandates life in prison

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without the possibility of parole for juvenile offenders—is retroactive, Petitioner’s claims

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in this habeas review may not be time-barred. Moreover, if the Supreme Court finds that

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Miller is retroactive, Petitioner’s first and third grounds for relief may or may not fail on

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the merits. For this reason, and because the Supreme Court will have answered the

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question of retroactivity by its summer recess, the Court will stay the matter.

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IT IS ORDERED adopting the Report and Recommendation in this matter
(Doc. 14);

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IT IS FURTHER ORDERED denying as moot Petitioner’s Motion to Stay
Pending Exhaustion of State Court Remedies (Doc. 4);

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IT IS FURTHER ORDERED granting Respondents’ request for stay pending a

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decision by the Supreme Court of the United States in Montgomery v. Louisiana, 135 S.

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Ct. 1546 (Doc. 11);

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///

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///

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///

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IT IS FURTHER ORDERED that upon the Supreme Court’s issuance of a

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decision in Montgomery, the parties shall file a notice of the decision with this Court,

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whereupon the Court shall lift the stay.

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Dated this 28th day of January, 2016.

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Honorable John J. Tuchi
United States District Judge

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