Puleo v. Shinn et al

Filing 14

ORDER ADOPTING REPORT AND RECOMMENDATION re: 12 Report and Recommendation. The Petitioner's Objections (Doc. 13 ) are overruled and the Petition for Writ of Habeas Corpus (Doc. 1 ) is denied and this action is dismissed with prejudice. A Cer tificate 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 according and terminate this action. Signed by Judge Steven P Logan on 10/14/20. (DXD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Steven James Puleo,

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Petitioner,
v.

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David Shinn, et al.,
Respondents.

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No. CV 19-05402-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 Limited Answer from the Respondents (Doc. 10), and the

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Petitioner’s Supplement. (Doc. 11) Additionally, the Court is in receipt of the Report and

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Recommendation of the Magistrate Judge (Doc. 12), and the Petitioner’s Objections. (Doc.

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13)

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In the instant Petition, the Petitioner alleges: (1) due process violations; (2)

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ineffective assistance of counsel based on trial counsel; (3) Fourth Amendment violation;

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(4) Fourteenth Amendment violation. (Doc. 1 at 6-10)

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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 a

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timely objection to an R&R, the district judge reviews de novo those portions of the R&R

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that have been “properly objected to.” Fed. R. Civ. P. 72(b). A proper objection requires

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specific written objections to the findings and recommendations in the R&R. See United

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States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); 28 U.S.C. § 636(b) (1). It

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follows that the Court need not conduct any review of portions to which no specific

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objection has been made. See Reyna-Tapia, 328 F.3d at 1121; see also Thomas v. Arn, 474

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U.S. 140, 149 (1985) (discussing the inherent purpose of limited review is judicial

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economy). Further, a party is not entitled as of right to de novo review of evidence or

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arguments which are raised for the first time in an objection to the R&R, and the Court’s

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decision to consider them is discretionary. United States v. Howell, 231 F.3d 615, 621-622

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(9th Cir. 2000).

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The Court has carefully undertaken an extensive review of the sufficiently

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developed record. The Petitioner’s objections to the findings and recommendations have

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also been thoroughly considered.

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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 Bibles. Having carefully reviewed the record, the

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Petitioner failed to show that extraordinary circumstances or that newly discovered and

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reliable evidence of actual innocence were the proximate cause of the untimely filing as

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previously addressed in Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). Furthermore,

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the Petitioner simply failed to file the federal habeas petition in a timely manner. The

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Petitioner is not entitled to equitable tolling or habeas relief. The R&R will be adopted in

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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. 12) is

accepted and adopted by the Court;

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2.

That the Petitioner’s Objections (Doc. 13) are overruled;

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3.

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

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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 procedural

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bar and reasonable jurists would not find the ruling debatable; and

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5.

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That the Clerk of Court shall enter judgment according and terminate this

action.
Dated this 14th day of October, 2020.

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Honorable Steven P. Logan
United States District Judge

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