Gonzalez #176281 v. Ryan et al

Filing 13

ORDER that the Report and Recommendation of the Magistrate Judge (Doc. 9 ) is rejected. FURTHER ORDERED that the Petition is referred again to Magistrate Judge Michelle Burns for a further Report and Recommendation on the merits of the Petition. See order for details. Signed by Senior Judge Neil V. Wake on 11/30/16. (NKS)

Download PDF
1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Andrew John Gonzalez, 10 Petitioner, 11 ORDER v. 12 No. CV-16-01785-PHX-NVW Charles L Ryan, et al., 13 Respondents. 14 15 16 Pending before the Court is the Report and Recommendation (“R&R”) of 17 Magistrate Judge Michelle H. Burns (Doc. 9) regarding petitioner’s Petition for Writ of 18 Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1). The R&R recommends that 19 the Petition be denied and dismissed with prejudice. The Magistrate Judge advised the 20 parties that they had fourteen days to file objections to the R&R. (R&R at 8 (citing 28 21 U.S.C. § 636(b)(1)). 22 Respondent filed Responses to Objections on November 3, 2016 (Doc. 11); and 23 Petitioner filed a Reply to the Response on November 16, 2016 (Doc. 12). Petitioner filed objections on October 31, 2016 (Doc. 10); 24 The Court has considered the objections and reviewed the Report and 25 Recommendation de novo. See Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1) (stating 26 that the court must make a de novo determination of those portions of the Report and 27 Recommendation to which specific objections are made). The Court agrees with the 28 Magistrate Judge’s determinations, accepts the recommended decision within the 1 meaning of Rule 72(b), Federal Rules of Civil Procedure, and overrules Petitioner’s 2 objections. See 28 U.S.C. § 636(b)(1) (stating that the district court “may accept, reject, 3 or modify, in whole or in part, the findings or recommendations made by the magistrate 4 judge”). 5 Based on the Petition and other briefing before her, the Magistrate Judge correctly 6 concluded that the Petition was untimely under the one-year statute of limitations of 28 7 U.S.C. § 2244(d)(1) and that no basis for equitable tolling had been presented. Petitioner 8 could have presented such a basis in his reply, but he filed no reply. 9 Petitioner’s Objection (Doc. 10) asserted for the first time that on May 4, 2016, he 10 requested withdrawal of postage money and the $5 filing from his prisoner account so he 11 could mail his Petition on May 5, 2016, before the May 9, 2016 deadline. He says they 12 did not withdraw the money until June 2, 2016. He attaches documents that substantiate 13 his assertion. 14 Respondent contends that Petitioner waived this new ground for equitable tolling 15 by not raising it until his Objection after the Magistrate Judge’s Report and 16 Recommendation. Respondent relies on case law about appellate procedure generally 17 and the consequence of failure to raise or brief issues in a timely fashion. That may be 18 the procedure in appeals, but it is not the procedure upon objection to a Magistrate 19 Judge’s Report and Recommendation. 20 required, to consider evidence presented for the first time in a party’s objection to a 21 magistrate judge’s recommendation.” Brown v. Roe, 279 F.3d 742, 744 (9th Cir. 2002) 22 (quoting United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000)). The district court 23 must make a decision whether to consider newly offered evidence and “must actually 24 exercise its discretion, rather than summarily accepting or denying the motion.” Brown, 25 279 F.3d at 744 (quoting Howell, 231 F.3d at 621-22). “[A] district court has discretion, but is not 26 The Court exercises its discretion to consider the new evidence first offered in the 27 Objections and finds equitable tolling based on that evidence, for the following reasons. 28 First, the documentary proof of Petitioner’s timely request is uncontested. Second, it -2- 1 would not be apparent to an unrepresented person that equitable tolling needed to be 2 addressed in the Petition itself. It should have been apparent after the Respondent’s 3 Answer that Petitioner’s case could turn on equitable tolling, but it still requires some 4 degree of technical sophistication to realize it should be addressed in a reply. Respondent 5 counters that Petitioner should have requested funds for postage and the filing fee even 6 earlier. But Respondent did request the funds in time to properly file/mail his petition. 7 He had no control over the prison officials’ failure to supply the funds for four weeks. 8 Respondent is not unfairly prejudiced by equitable tolling. The Court therefore finds that 9 the one-year statute of limitations of 28 U.S.C. § 2244(d)(1) is equitably tolled and the 10 11 12 Petition is timely. IT IS THEREFORE ORDERED that the Report and Recommendation of the Magistrate Judge (Doc. 9) is rejected. 13 IT IS FURTHER ORDERED that the Petition is referred again to Magistrate 14 Judge Michelle Burns for a further Report and Recommendation on the merits of the 15 Petition. 16 Dated this 30th day of November, 2016. 17 18 19 20 Neil V. Wake Senior United States District Judge 21 22 23 24 25 26 27 28 -3-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?