Gonzalez #176281 v. Ryan et al
Filing
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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)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Andrew John Gonzalez,
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Petitioner,
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ORDER
v.
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No. CV-16-01785-PHX-NVW
Charles L Ryan, et al.,
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Respondents.
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Pending before the Court is the Report and Recommendation (“R&R”) of
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Magistrate Judge Michelle H. Burns (Doc. 9) regarding petitioner’s Petition for Writ of
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Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1). The R&R recommends that
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the Petition be denied and dismissed with prejudice. The Magistrate Judge advised the
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parties that they had fourteen days to file objections to the R&R. (R&R at 8 (citing 28
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U.S.C. § 636(b)(1)).
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Respondent filed Responses to Objections on November 3, 2016 (Doc. 11); and
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Petitioner filed a Reply to the Response on November 16, 2016 (Doc. 12).
Petitioner filed objections on October 31, 2016 (Doc. 10);
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The Court has considered the objections and reviewed the Report and
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Recommendation de novo. See Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1) (stating
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that the court must make a de novo determination of those portions of the Report and
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Recommendation to which specific objections are made). The Court agrees with the
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Magistrate Judge’s determinations, accepts the recommended decision within the
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meaning of Rule 72(b), Federal Rules of Civil Procedure, and overrules Petitioner’s
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objections. See 28 U.S.C. § 636(b)(1) (stating that the district court “may accept, reject,
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or modify, in whole or in part, the findings or recommendations made by the magistrate
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judge”).
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Based on the Petition and other briefing before her, the Magistrate Judge correctly
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concluded that the Petition was untimely under the one-year statute of limitations of 28
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U.S.C. § 2244(d)(1) and that no basis for equitable tolling had been presented. Petitioner
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could have presented such a basis in his reply, but he filed no reply.
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Petitioner’s Objection (Doc. 10) asserted for the first time that on May 4, 2016, he
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requested withdrawal of postage money and the $5 filing from his prisoner account so he
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could mail his Petition on May 5, 2016, before the May 9, 2016 deadline. He says they
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did not withdraw the money until June 2, 2016. He attaches documents that substantiate
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his assertion.
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Respondent contends that Petitioner waived this new ground for equitable tolling
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by not raising it until his Objection after the Magistrate Judge’s Report and
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Recommendation. Respondent relies on case law about appellate procedure generally
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and the consequence of failure to raise or brief issues in a timely fashion. That may be
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the procedure in appeals, but it is not the procedure upon objection to a Magistrate
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Judge’s Report and Recommendation.
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required, to consider evidence presented for the first time in a party’s objection to a
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magistrate judge’s recommendation.” Brown v. Roe, 279 F.3d 742, 744 (9th Cir. 2002)
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(quoting United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000)). The district court
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must make a decision whether to consider newly offered evidence and “must actually
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exercise its discretion, rather than summarily accepting or denying the motion.” Brown,
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279 F.3d at 744 (quoting Howell, 231 F.3d at 621-22).
“[A] district court has discretion, but is not
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The Court exercises its discretion to consider the new evidence first offered in the
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Objections and finds equitable tolling based on that evidence, for the following reasons.
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First, the documentary proof of Petitioner’s timely request is uncontested. Second, it
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would not be apparent to an unrepresented person that equitable tolling needed to be
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addressed in the Petition itself. It should have been apparent after the Respondent’s
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Answer that Petitioner’s case could turn on equitable tolling, but it still requires some
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degree of technical sophistication to realize it should be addressed in a reply. Respondent
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counters that Petitioner should have requested funds for postage and the filing fee even
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earlier. But Respondent did request the funds in time to properly file/mail his petition.
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He had no control over the prison officials’ failure to supply the funds for four weeks.
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Respondent is not unfairly prejudiced by equitable tolling. The Court therefore finds that
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the one-year statute of limitations of 28 U.S.C. § 2244(d)(1) is equitably tolled and the
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Petition is timely.
IT IS THEREFORE ORDERED that the Report and Recommendation of the
Magistrate Judge (Doc. 9) is rejected.
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IT IS FURTHER ORDERED that the Petition is referred again to Magistrate
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Judge Michelle Burns for a further Report and Recommendation on the merits of the
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Petition.
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Dated this 30th day of November, 2016.
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Neil V. Wake
Senior United States District Judge
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