Brown v. Ryan et al

Filing 20

ORDER ADOPTING REPORT AND RECOMMENDATION re: 16 Report and Recommendation. Denying 17 Motion to Stay Execution of Sentence and 19 Motion for Leave of the Court to File Supplemental Pleadings. The Petitioner's Objections (Doc. 18 ) are o verruled. The Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2244 (Doc. 1 ) is denied and this action is dismissed with prejudice. 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 procedural bar and reasonable jurists would not find the ruling debatable. The Clerk shall terminate this action. Signed by Judge Steven P Logan on 7/6/17. (DXD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Alexander Jeremiah Clifford Brown,

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Petitioner,
v.

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Charles L. Ryan, et al.,
Respondents.

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No. CV-16-01635-PHX-SPL
ORDER

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The Petitioner, Alexander Jeremiah Clifford Brown, at the time of the Petition,

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was incarcerated in Kingman, Arizona. The Petitioner, on January 1, 2004, was convicted

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of one count of child abuse as a dangerous offense (count one) and one count of non-

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dangerous child abuse (count two), and subsequently sentenced to 17 years imprisonment

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(Doc. 11-1, Ex. E, at 25-29).

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Petitioner filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.

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§ 2254 (Doc. 1). Respondents filed a Limited Answer (Doc. 11), and Petitioner filed a

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Reply (Doc. 14). United States Magistrate Judge John Z. Boyle 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. 16). The Petitioner subsequently filed a Motion to Stay Execution of Sentence

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(Doc. 17), and timely filed Objections to the R&R (Doc. 18). Additionally, the Petitioner

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filed a Motion for Leave to File Supplemental Pleadings (Doc. 19). Petitioner does not

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object to the correctness of the factual background in the R&R, which the Court adopts

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and incorporates. For the following reasons, the Court accepts and adopts the R&R, and

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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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When the Petitioner filed his Writ of Habeas Corpus, he raised one ground for

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relief alleging ineffective assistance of counsel in connection with his plea proceedings

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and his state post-conviction proceedings (Doc. 1). Petitioner specifically objected to the

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R&R arguing Judge Boyle failed to interpret the AEDPA’s one-year time limit, held the

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Petitioner to a higher degree of due diligence and that his lawyers failed to have a mental

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competency evaluation performed on the Petitioner prior to any discussions of

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adjudication in the case (Doc. 18).

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The Court finds that Judge Boyle correctly concluded that when the Petitioner

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filed the second and third successive PCR petitions, the statute of limitations was not

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tolled. Furthermore, the Court finds that if the deadline was reset to reflect the date of the

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plea agreement amendment, the statute of limitations would have expired years prior.

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The Court did not find any extraordinary circumstances or diligence on the part of the

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Petitioner that would trigger his entitlement to equitable tolling. Additionally, this Court

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did not find that Judge Boyle held the Petitioner to a higher degree of due diligence.
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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. Having carefully reviewed the record, the

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Petitioner has not shown that he is entitled to habeas relief pursuant to 28 U.S.C. §

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2244. Finding none of Petitioner’s objections have merit, the R&R will be adopted in

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full. Accordingly,

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IT IS ORDERED:

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1.

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That Magistrate Judge Boyle’s Report and Recommendation (Doc. 16) is

accepted and adopted by the Court;

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2.

That the Motion to Stay Execution of Sentence (Doc. 17) is denied;

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That the Motion for Leave of the Court to File Supplemental Pleadings

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(Doc. 19) is denied;

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That the Petitioner’s Objections (Doc. 18) 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

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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 6th day of July, 2017.

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Honorable Steven P. Logan
United States District Judge

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