Caputo v. Ryan et al

Filing 10

ORDER: The Magistrate Judge's Report and Recommendation 7 is accepted and adopted by the Court; Petitioner's Objections 8 are overruled; The Petition for Writ of Habeas Corpus 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; and The Clerk of Court shall terminate this action. Signed by Judge Steven P Logan on 10/30/2017. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Christopher M. Caputo,

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Petitioner,
v.

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Charles L. Ryan, et al.,
Respondents.

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No. CV-17-00906-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), and Respondents’ Limited Answer. (Doc. 6.) We also have

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before us the Report and Recommendation (R&R) of United States Magistrate Judge

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John Z. Boyle (Doc. 7), recommending denial of the Petition, Petitioner’s Objections

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(Doc. 8), and the Respondents’ Response to the Petitioner’s Objections to the Report and

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Recommendation. (Doc. 9.) Upon review of the R&R and the parties’ submissions, the

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Court will adopt in whole Judge Boyle’s recommendations and the underlying reasoning.

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The Petitioner raises 3 grounds for relief in his Petition for Writ of Habeas Corpus.

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In Ground 1, the Petitioner argues his sentence was illegal under Arizona Revised Statute

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13-702; Ground 2, the Petitioner argues the ineffective assistance of counsel for failure to

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request a mitigation hearing; and Ground 3, the Petitioner argues trial counsel was

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ineffective because counsel advised Petitioner to sign a plea for a maximum sentence.

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(Doc. 1.)

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Judge Boyle concluded the Petitioner’s claims are untimely. (Doc. 7 at 2-6.)

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Additionally, the magistrate judge further concluded that the Petitioner has not argued,

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and the record does not demonstrate, that the Petitioner is entitled to equitable tolling. (Id.

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at 6.)

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In his Objections to the Report and Recommendation, Petitioner argues his lawyer

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told him that post-conviction proceedings did not apply to Petitioner; Petitioner was not

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advised to the contrary until the time limit had passed; and his application was delayed

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because he did not have relevant court documents. (Doc. 8 at 1-2.) Additionally,

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Petitioner argues further delay was caused because Petitioner was looking for additional

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case law to try to excuse his late filing. (Id.)

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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. After conducting a de novo review of the

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issues and objections, the Court reaches the same conclusions reached by Judge Boyle.

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Specifically, the Court finds the Petitioner was sentenced almost two years prior to the

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filing of his Petition and no grounds exists that would entitle the Petitioner to equitable
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tolling. (Doc. 6-1, Ex. E, F, G and I.) The Court finds the claims of the Petitioner are

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untimely and that no extraordinary circumstances prevented him from filing his claims.

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Furthermore, the Court finds he is not entitled to equitable tolling.

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

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entitled to habeas relief. Finding none of Petitioner’s objections have merit, the R&R

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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. 7) is

accepted and adopted by the Court;

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That the Petitioner’s Objections (Doc. 8) 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 30th day of October, 2017.

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Honorable Steven P. Logan
United States District Judge

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