Leon #43457 v. Ryan et al

Filing 23

ORDER: The Court accepts the recommended disposition of the R&R 19 . The Petition 1 is denied and 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 enter judgment accordingly and terminate this action. Signed by Judge Dominic W Lanza on 2/05/2019. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jesus Oscar Meraz Leon,

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Petitioner,

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ORDER

v.

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No. CV-17-04227-PHX-DWL

Charles L Ryan, et al.,

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Respondents.

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On November 16, 2017, Petitioner filed a petition for writ of habeas corpus under

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28 U.S.C. § 2254 (“the Petition”). (Doc. 1.) On August 27, 2018, Magistrate Judge Fine

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issued a Report and Recommendation (“R&R”) concluding the Petition should be denied

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and dismissed with prejudice. (Doc. 19.) Afterward, Petitioner filed written objections to

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the R&R (Doc. 20) and Respondents filed a response (Doc. 21).
As explained below, the Court will deny Petitioner’s objections.

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I.

Background

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In 1985, following a jury trial, Petitioner was convicted of armed burglary, sexual

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assault, and attempted sexual assault and sentenced to life in prison. (Doc. 19 at 1-2.) He

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unsuccessfully appealed his conviction and sentence through the Arizona court system on

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grounds not relevant here. (Id.)

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In 2000, the state of Arizona enacted a post-conviction DNA testing procedure,
which is codified at A.R.S. § 13-4240(A). (Doc. 19 at 3-4.)
Four years later—in 2004—Petitioner filed a notice of post-conviction relief in

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which he requested “medical testing” of DNA. (Doc. 19 at 2.) The superior court never

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ruled on this notice. (Id.) Instead of requesting a ruling or petitioning to the Arizona Court

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of Appeals, Petitioner continued to file additional motions for post-conviction relief. (Id.)

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In March 2015, Petitioner filed another motion in the superior court for post-

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conviction DNA testing under A.R.S. § 13-4240(A). (Doc. 19 at 2.) In April 2015, the

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motion was denied. (Id.)

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In July 2015, Petitioner filed a petition for review with the Arizona Court of

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Appeals. (Id.) In April 2017, the Court of Appeals issued a memorandum decision in

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which it denied relief on the grounds that (1) “Leon offers no proof the evidence still exists

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more than thirty years after investigators first collected it, or, if it does exist, that it remains

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in a condition that allows DNA testing,” and (2) “Leon previously petitioned for DNA

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testing in 2004. . . . [I]f Leon wished to challenge the failure to grant that earlier petition

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for testing, he had an obligation to file a timely petition for review” and failed to do so.

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(Doc. 17-1 at 61.)

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In May 2017, Petitioner filed a petition for review with the Arizona Supreme Court.

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(Doc. 17-1 at 63-76.) This petition framed the issue as whether the trial court had abused

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its discretion under Arizona law. (Id. at 64.) The only two references to a possible federal

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constitutional claim were (1) an assertion that Arizona’s abuse-of-discretion standard “is

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too liberal and has resulted in an arbitrary and capricious enforcement of this substantive

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right for all but the wealthiest of defendants and is a complete violation of the 14th

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Amendment due process and equal protection clause” and (2) and assertion that the Court

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of Appeals had “resorted to using incorrect rhetoric so that they may sweep this complete

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denial of due process under the rug.” (Id. at 68-70.) The Supreme Court denied the petition

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in September 2017. (Doc. 17-1 at 85.)

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In November 2017, Petitioner filed the Petition. (Doc. 1.) It raises only one ground

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for relief: that Arizona’s refusal to grant his request for DNA testing violated his Fourteenth

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Amendment rights to due process and equal protection because he is actually innocent of

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sexual assault. (Id. at 6.)

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The R&R was issued in August 2018. (Doc. 19.) It concludes the Petition should

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be denied for three independent reasons: (1) the petition is untimely and not subject to the

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“actual innocence” exception because Petitioner failed to present any new evidence of his

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innocence (Doc. 19 at 3-5); (2) Petitioner didn’t “fairly present[]” any federal claims in his

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petition to the Arizona Supreme Court and thus failed to meet AEDPA’s exhaustion

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requirement (Doc. 19 at 5-6); and (3) the Supreme Court specifically held, in Dist. Atty’s

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Office for Third Judicial Dist. v. McGuire, 557 U.S. 52 (2009), that there’s no federal

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constitutional right to post-conviction DNA testing (Doc. 19 at 6.)

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II.

Legal Standard

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A party may file specific, written objections to an R&R within fourteen days of

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being served with a copy of it. Rules Governing Section 2254 Cases 8(b) (“Section 2254

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Rules”); see also Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). The Court must

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undertake a de novo review of those portions of the R&R to which specific objections are

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made. See, e.g., Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (“It does not appear that

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Congress intended to require district court review of a magistrate’s factual or legal

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conclusions, under a de novo or any other standard, when neither party objects to those

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findings.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1221 (9th Cir. 2003) (“[T]he

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district judge must review the magistrate judge’s findings and recommendations de novo

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if objection is made, but not otherwise.”). The Court may accept, reject, or modify, in

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whole or in part, the findings or recommendations made by the magistrate judge. Section

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2254 Rules 8(b); see also Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1)(C).

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III.

The Parties’ Arguments

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In his objections to the R&R, Petitioner doesn’t meaningfully address the analysis

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contained in the R&R. (Doc. 20.) Instead, he argues (1) he’s entitled to DNA testing under

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Brady v. Maryland, 373 U.S. 83 (1963), (2) the evidence against him at trial was weak

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(there was no DNA evidence and the victim couldn’t identify him), and (3) the prosecution

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never proved “at least some penetration” as required under Arizona’s rape laws. (Id.)

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In their response, Respondents argue that Petitioner’s new arguments, “even if true,

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do[] not excuse the untimeliness of his claim nor [do they] turn his state claim into a federal

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one.” (Doc. 21 at 1-2.)

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IV.

Analysis

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The R&R identified three independent reasons why habeas relief is unavailable: (1)

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the Petition is untimely; (2) Petitioner failed to exhaust his federal claims in state court;

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and (3) on the merits, there is no federal constitutional right to DNA testing. In his

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objections, Petitioner seemingly ignored these issues. Even if his invocation of Brady

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could be liberally construed as an attempt to shoehorn his complaint into a cognizable

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federal theory of relief—and thus address the third ground for dismissal identified in the

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R&R—he still hasn’t addressed the issues of timeliness and exhaustion.

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These omissions mean Petitioner is not entitled to relief. The Supreme Court has

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explained that “[i]t does not appear that Congress intended to require district court review

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of a magistrate’s factual or legal conclusions, under a de novo or any other standard, when

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neither party objects to those findings.” Thomas v. Arn, 474 U.S. 140, 149-50 (1985).

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See also United States v. Reyna-Tapia, 328 F.3d 1114, 1221 (9th Cir. 2003) (“[T]he district

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judge must review the magistrate judge’s findings and recommendations de novo if

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objection is made, but not otherwise.”). Here, Petitioner has effectively conceded that the

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R&R’s analysis of the timeliness and exhaustion issues is correct.

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Accordingly, IT IS ORDERED that:

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(1)

The Court accepts the recommended disposition of the R&R (Doc. 19);

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(2)

The Petition (Doc. 1) is denied and dismissed with prejudice;

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(3)

A Certificate of Appealability and leave to proceed in forma pauperis on

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appeal are denied because the dismissal of the Petition is justified by a plain procedural bar

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and reasonable jurists would not find the ruling debatable; and

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…

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…

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(4)

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Dated this 5th day of February, 2019.

The Clerk shall enter judgment accordingly and terminate this action.

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