Lopez v. Ryan et al

Filing 23

ORDER - IT IS ORDERED: 1. That Magistrate Judge Fine's Report and Recommendation (Doc. 14 ) is accepted and adopted by the Court; 2. That the Motion to Stay the Habeas Proceedings with Leave to Amend or Leave to file a Second Successive Petitio n (Doc. 16 ) is denied; 3. That the Motion for Evidentiary Hearing (Doc. 20 ) is denied; 4. That the Motion for Leave to Amend the Petition (Doc. 21 ) is denied; 5. That the Petitioner's Objections (Doc. 15 ) are overruled; 6. That the Petit ion for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2244 (Doc. 1 ) is denied and this action is dismissed with prejudice; 7. That a Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied because the dismissa l of the Petition is justified by a plain procedural bar and reasonable jurists would not find the ruling debatable; and 8. That the Clerk of Court shall terminate this action. (See document for further details). Signed by Judge Steven P Logan on 7/11/17. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Armando Lopez, Jr.,

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Petitioner,
v.

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Charles L. Ryan, et al.,
Respondents.

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No. CV-15-02436-PHX-SPL
ORDER

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The Petitioner, Armando Lopez Jr, is currently serving a forty two year prison

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term in Douglas, Arizona. He was convicted in the Pinal County Superior Court for two

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counts of attempted murder and one count of burglary. Petitioner filed a pro se Petition

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for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) on December 1, 2015.

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Respondents filed a Limited Answer (Doc. 10), stating that the Petition should be

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dismissed as untimely under the Antiterrorism and Effective Death Penalty Act

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(“AEDPA”), and that the Petitioner’s claims are unexhausted and procedurally defaulted.

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Petitioner filed a Reply (Doc. 11) and a supplement to his Petition (Doc. 12).

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Additionally, United States Magistrate Judge Deborah M. Fine has issued a Report and

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Recommendation (“R&R”) recommending that the Court deny and dismiss the petition

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(Doc. 14) as untimely because the Petition was filed on November 24, 2015 and Judge

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Fine believed the filing of the Petition to be several years after the AEDPA’s one year

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statute of limitations had expired. The Petitioner timely filed Objections to the R&R

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(Doc. 15). Additionally, the petitioner filed a Motion to Stay the Habeas Proceedings

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with Leave to Amend or Leave to file a Second Successive Petition (Doc. 16).

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Respondents filed a response to Petitioner’s Motion to Stay the Habeas Proceedings and

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for Leave to Amend (Doc. 18). Petitioner subsequently replied to the response from the

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Respondents and requested an Evidentiary Hearing (Docs. 19, 20). Petitioner also filed a

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Motion for Leave to Amend the previously filed Petition (Doc. 21), and subsequently

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lodged an Amended / Supplement (Doc. 22). Petitioner does not object to the correctness

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of the factual background in the R&R, which the Court adopts and incorporates. For the

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following reasons, the Court accepts and adopts the R&R, and denies the petition.

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A district judge “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). When a party files

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a timely objection to an R&R, the district judge reviews de novo those portions of the

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R&R that have been “properly objected to.” Fed. R. Civ. P. 72(b). A proper objection

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requires specific written objections to the findings and recommendations in the R&R. See

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United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); 28 U.S.C. §

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636(b)(1). It follows that the Court need not conduct any review of portions to which no

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specific objection has been made. See Reyna-Tapia, 328 F.3d at 1121; see also Thomas v.

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Arn, 474 U.S. 140, 149 (1985) (discussing the inherent purpose of limited review is

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judicial economy). Further, a party is not entitled as of right to de novo review of

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evidence or arguments which are raised for the first time in an objection to the R&R, and

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the Court’s decision to consider them is discretionary. United States v. Howell, 231 F.3d

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615, 621-622 (9th Cir. 2000).

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The Writ of Habeas Corpus alleged a Sixth Amendment violation based on

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competency issues, a due process violation based on prosecutorial misconduct and an

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allegation of a multiplicitous indictment (Doc. 1 at 6-8). The Petitioner objected to the

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R&R (Doc. 15) arguing that section 2255 provides for relief from the one year deadline

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under certain circumstances, and that Judge Fine failed to address the competency issues

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raised in the Petition (Doc. 15 at 2). Additionally, the Petitioner argued the government

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was involved in prosecutorial misconduct and that the indictment was multiplicitous in
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violation of the Fifth Amendment (Doc. 15 at 3).

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The Court concludes that Magistrate Judge Fine’s recommendations are correct.

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The Court adopts Judge Fine’s R&R and the underlying reasoning. The Court expressly

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finds that after the Petitioner chose not to file a Petition for review with the Arizona

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Supreme Court, the convictions became final on November 8, 2010, which was the date

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that the Petitioner could no longer appeal to the Arizona Supreme Court (Doc. 10-2 at

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210). This Court further finds that the Petitioner filed his Petition with this Court on

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November 24, 2015 which was not timely. The equitable tolling arguments from the

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Petitioner are not persuasive. The Court did not find any extraordinary circumstances or

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diligence on the part of the Petitioner that would trigger his entitlement to equitable

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tolling.

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The Court has undertaken an extensive review of the sufficiently developed record

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and the issues presented in the objections, without the need of an evidentiary hearing.

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Having carefully reviewed the record, the Petitioner has not shown that he is entitled to

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habeas relief pursuant to 28 U.S.C. § 2244. Finding none of Petitioner’s objections have

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merit, the R&R will be adopted in full. Accordingly,

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IT IS ORDERED:

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1.

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That Magistrate Judge Fine’s Report and Recommendation (Doc. 14) is

accepted and adopted by the Court;
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That the Motion to Stay the Habeas Proceedings with Leave to Amend or

Leave to file a Second Successive Petition (Doc. 16) is denied;

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3.

That the Motion for Evidentiary Hearing (Doc. 20) is denied;

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4.

That the Motion for Leave to Amend the Petition (Doc. 21) is denied;

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5.

That the Petitioner’s Objections (Doc. 15) are overruled;

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That the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2244

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(Doc. 1) is denied and this action is dismissed with prejudice;
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That a Certificate of Appealability and leave to proceed in forma pauperis

on appeal are denied because the dismissal of the Petition is justified by a plain
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procedural bar and reasonable jurists would not find the ruling debatable; and

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That the Clerk of Court shall terminate this action.

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Dated this 11th day of July, 2017.

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Honorable Steven P. Logan
United States District Judge

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