Supulveda #254999 v. Ryan et al

Filing 22

ORDER ADOPTING REPORT AND RECOMMENDATION re: 19 Report and Recommendation. Petitioner's Objections (Doc. 20 ) are overruled and the Petition for Writ of Habeas Corpus (Doc. 1 ) is denied and this action is dismissed with prejudice. A Cert ificate 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 1/18/18. (DXD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Edmundo Supulveda,

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Petitioner,
v.

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Charles L. Ryan, et al,
Respondents.

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No. CV-16-01945-PHX-SPL
ORDER

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The Court has before it Petitioner’s Petition for Writ of Habeas Corpus pursuant to

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28 U.S.C. § 2254. (Doc. 1.) The Court has also received Respondents’ Limited Answer

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(Doc. 9), and Petitioner’s Reply. (Doc. 10.) Additionally, Petitioner and his sister Angela

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filed Affidavits. (Docs. 13, 14.) We also have before us Respondents’ Surreply (Doc.

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18), the Report and Recommendation (R&R) of United States Magistrate Judge John Z.

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Boyle (Doc. 19), and Petitioner’s timely Objections. (Doc. 20.)

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The Petitioner raises three grounds for relief in his Petition for Writ of Habeas

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Corpus. The Petitioner argues in Ground 1 that his trial counsel was ineffective because

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counsel failed to adequately advise Petitioner regarding the merits of a plea offer and case

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discovery that could have impacted the plea negotiations and trial. (Doc. 1 at 6.) In

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Ground 2, Petitioner argues that his appellate counsel was ineffective because the

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attorney failed to argue that the trial court erroneously admitted evidence of a recorded

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telephone call to 9-1-1. (Id. at 7.) In Ground 3, the Petitioner argues that he was denied

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the right to confront all witnesses against him. (Id. at 8.) Respondents argue that the

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Petitioner’s petition is untimely and that neither statutory tolling nor equitable tolling

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applies. (Doc. 9 at 4-11.)

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Judge Boyle concluded the Petitioner’s claims are untimely. (Doc. 19 at 2-9.)

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Additionally, Judge Boyle found that an evidentiary hearing was not warranted regarding

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Petitioner’s claims, including equitable tolling. He believes the record is sufficiently

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developed, finding the Petitioner did not make a good faith allegation that would entitle

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Petitioner to equitable tolling. (Id.)

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Petitioner argues extraordinary circumstances beyond his control made it

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impossible for him to file a timely habeas petition. (Doc. 20 at 1-10.) The Petitioner also

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submits that he has met the threshold of establishing that extraordinary circumstances

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beyond his control, made it impossible for him to file a timely petition. (Id. at 5.)

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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 Court has undertaken an extensive review of the sufficiently developed record

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and the objections to the findings and recommendations in the very detailed R&R,

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without the need for an evidentiary hearing.

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After conducting a de novo review of the issues and objections, the Court reaches
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the same conclusions reached by Judge Boyle. Specifically, the Court finds by pursuing

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a second PCR action prior to filing the instant Petition, the instant Petition is untimely.

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This Court further finds that no ground exists that would entitle Petitioner to equitable

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tolling relief.

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Having carefully reviewed the record, the Petitioner has not shown that he is
entitled to habeas relief. 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 the Magistrate Judge’s Report and Recommendation (Doc. 19) is

accepted and adopted by the Court;

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That the Petitioner’s Objections (Doc. 20) are overruled;

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That the Petition for Writ of Habeas Corpus (Doc. 1) is denied and this

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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 18th day of January, 2018.

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Honorable Steven P. Logan
United States District Judge

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