Cisneroz v. Ryan et al

Filing 16

ORDER ADOPTING REPORT AND RECOMMENDATION 13 in whole; overruling Petitioner's Objection 14 ; denying the Petition for Writ of Habeas Corpus 1 ; denying a Certificate of Appealability upon the Court's conclusion that jurists of reason would not find its assessment of the constitutional claims to be debatable or wrong; the Clerk shall close this matter. Signed by Judge John J Tuchi on 2/16/17. (REW)

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1 NOT FOR PUBLICATION 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Michael Paul Cisneroz, Petitioner, 10 11 ORDER v. 12 No. CV-15-02000-PHX-JJT Charles L Ryan, et al., 13 Respondents. 14 15 At issue are the Petition for Writ of Habeas Corpus filed by Michael Paul Cisneroz 16 (“Petitioner”) on October 2, 2015 (Doc. 1), to which Charles Ryan and the Attorney 17 General of the State of Arizona (“Respondents”) filed a Response (Doc. 10) and 18 Petitioner filed a Reply (Doc. 11); and the Report and Recommendation (“R&R”) 19 prepared in this matter by United States Magistrate Judge Deborah M. Fine (Doc. 13), 20 which recommends that this Court deny the Petition and dismiss it with prejudice. 21 Petitioner timely filed an Objection to Report and Recommendation (Doc. 14), and 22 Respondents filed a Response thereto (Doc. 15). 23 A party’s failure to file objections to the R&R is considered a waiver of a party’s 24 right to de novo consideration of the issues. United States v. Reyna-Tapia, 328 F.3d 1114, 25 1121 (9th Cir. 2003) (en banc). It also constitutes a waiver of a party’s right to appellate 26 review of the findings of fact in an order or judgment entered pursuant to the R&R. See 27 Robbins v. Carey, 481 F.3rd 1143, 1146-47 (9th Cir. 2007). Respondents argue in their 28 Response to Objections (Doc. 15) that the Court should find Petitioner’s objections out of 1 compliance with Fed. R. Civ. P. 72(b)(2) because they “do no more than reiterate the 2 same general assertions that [Petitioner] made in his habeas petition.” (Doc. 15 at 1.) If 3 the Court so finds, it may treat such objections as a failure to object and apply the waiver 4 pursuant to Reyna-Tapia. Warling v. Ryan, 2013 WL 5276367 at *2 (D. Ariz. Sep. 19, 5 2013). 6 The Court nonetheless has undertaken a review of the issues presented in the 7 Objections. Upon that review, the Court concludes that Magistrate Judge Fine’s 8 recommendations are wholly sound. The Court adopts in whole Judge Fine’s R&R and 9 the underlying reasoning. The Court expressly finds that under AEDPA’s limitations 10 period, Petitioner’s Habeas Petition was due no later than October 9, 2009, unless a 11 subsequent timely PCR proceeding was filed. None was filed timely, and thus the 12 limitations period of AEDPA was not tolled, and his Petition of October 2, 2015, was 13 thus nearly six years late. Petitioner’s much later filing of an untimely second PCR 14 petition after his first PCR review process became final did not reset the clock for the 15 limitations period or otherwise operate as statutory tolling under AEDPA; and Petitioner 16 provided no justification for equitable tolling. 17 In his Objection, Petitioner attempts to bootstrap his way into compliance with the 18 equitable tolling analysis by arguing ineffective assistance of counsel leading up to his 19 entry of a change of plea. This will not work. As Judge Fine correctly found, Petitioner 20 does not begin to meet the requirements of Bills v. Clark to show eligibility for equitable 21 tolling due to a mental impairment. 628 F. 3d 1092, 1099-1100 (9th Cir. 2010). Petitioner 22 has made no showing of a but-for cause of delay relating to an injury he suffered before 23 he entered his no contest plea and well before any of the deliverables at issue in this 24 habeas matter became due. For all of those reasons, the Court will deny the Petition and 25 dismiss it with prejudice. 26 IT IS ORDERED adopting the R&R (Doc. 13) in whole. 27 IT IS FURTHER ORDERED overruling Petitioner’s Objection (Doc. 14). 28 -2- 1 2 IT IS FURTHER ORDERED denying the Petition for Writ of Habeas Corpus (Doc. 1). 3 IT IS FURTHER ORDERED denying a Certificate of Appealability upon the 4 Court’s conclusion that jurists of reason would not find its assessment of the 5 constitutional claims to be debatable or wrong. The Clerk of Court shall close this matter. 6 Dated this 16th day of February, 2017. 7 8 9 Honorable John J. Tuchi United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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