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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NOT FOR PUBLICATION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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Michael Paul Cisneroz,
Petitioner,

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ORDER

v.

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No. CV-15-02000-PHX-JJT

Charles L Ryan, et al.,

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Respondents.

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At issue are the Petition for Writ of Habeas Corpus filed by Michael Paul Cisneroz

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(“Petitioner”) on October 2, 2015 (Doc. 1), to which Charles Ryan and the Attorney

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General of the State of Arizona (“Respondents”) filed a Response (Doc. 10) and

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Petitioner filed a Reply (Doc. 11); and the Report and Recommendation (“R&R”)

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prepared in this matter by United States Magistrate Judge Deborah M. Fine (Doc. 13),

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which recommends that this Court deny the Petition and dismiss it with prejudice.

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Petitioner timely filed an Objection to Report and Recommendation (Doc. 14), and

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Respondents filed a Response thereto (Doc. 15).

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A party’s failure to file objections to the R&R is considered a waiver of a party’s

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right to de novo consideration of the issues. United States v. Reyna-Tapia, 328 F.3d 1114,

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1121 (9th Cir. 2003) (en banc). It also constitutes a waiver of a party’s right to appellate

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review of the findings of fact in an order or judgment entered pursuant to the R&R. See

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Robbins v. Carey, 481 F.3rd 1143, 1146-47 (9th Cir. 2007). Respondents argue in their

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Response to Objections (Doc. 15) that the Court should find Petitioner’s objections out of

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compliance with Fed. R. Civ. P. 72(b)(2) because they “do no more than reiterate the

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same general assertions that [Petitioner] made in his habeas petition.” (Doc. 15 at 1.) If

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the Court so finds, it may treat such objections as a failure to object and apply the waiver

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pursuant to Reyna-Tapia. Warling v. Ryan, 2013 WL 5276367 at *2 (D. Ariz. Sep. 19,

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2013).

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The Court nonetheless has undertaken a review of the issues presented in the

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Objections. Upon that review, the Court concludes that Magistrate Judge Fine’s

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recommendations are wholly sound. The Court adopts in whole Judge Fine’s R&R and

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the underlying reasoning. The Court expressly finds that under AEDPA’s limitations

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period, Petitioner’s Habeas Petition was due no later than October 9, 2009, unless a

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subsequent timely PCR proceeding was filed. None was filed timely, and thus the

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limitations period of AEDPA was not tolled, and his Petition of October 2, 2015, was

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thus nearly six years late. Petitioner’s much later filing of an untimely second PCR

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petition after his first PCR review process became final did not reset the clock for the

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limitations period or otherwise operate as statutory tolling under AEDPA; and Petitioner

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provided no justification for equitable tolling.

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In his Objection, Petitioner attempts to bootstrap his way into compliance with the

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equitable tolling analysis by arguing ineffective assistance of counsel leading up to his

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entry of a change of plea. This will not work. As Judge Fine correctly found, Petitioner

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does not begin to meet the requirements of Bills v. Clark to show eligibility for equitable

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tolling due to a mental impairment. 628 F. 3d 1092, 1099-1100 (9th Cir. 2010). Petitioner

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has made no showing of a but-for cause of delay relating to an injury he suffered before

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he entered his no contest plea and well before any of the deliverables at issue in this

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habeas matter became due. For all of those reasons, the Court will deny the Petition and

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dismiss it with prejudice.

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IT IS ORDERED adopting the R&R (Doc. 13) in whole.

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IT IS FURTHER ORDERED overruling Petitioner’s Objection (Doc. 14).

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IT IS FURTHER ORDERED denying the Petition for Writ of Habeas Corpus
(Doc. 1).

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IT IS FURTHER ORDERED denying a Certificate of Appealability upon the

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Court’s conclusion that jurists of reason would not find its assessment of the

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constitutional claims to be debatable or wrong. The Clerk of Court shall close this matter.

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Dated this 16th day of February, 2017.

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Honorable John J. Tuchi
United States District Judge

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