Harvey v. Shinn

Filing 30

ORDER - Petitioner's objections to the R&R (Doc. 28 ) are overruled. The R&R's recommended disposition (Doc. 27 ) is accepted. The Petition (Doc. 15 ) is dismissed with prejudice. A Certificate of Appealability and leave to proceed in f orma 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 procedural ruling debatable. The Clerk shall enter judgment accordingly and terminate this action. Signed by Judge Dominic W Lanza on 10/14/20. (EJA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Richard D Harvey,
Petitioner,

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ORDER

v.

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No. CV-20-00476-PHX-DWL

David Shinn, et al.,

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Respondents.

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On March 2, 2020, Petitioner filed a petition for a writ of habeas corpus under 28

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U.S.C. § 2254. (Doc. 1.) Petitioner thereafter filed an amended petition (Doc. 7) and a

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second amended petition (Doc. 15), the latter of which serves as the operative pleading

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(“the Petition”) in this case. On September 2, 2020, Magistrate Judge Fine issued a Report

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and Recommendation (“R&R”) concluding the Petition should be dismissed with

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prejudice. (Doc. 27.) Afterward, Petitioner filed objections to the R&R (Doc. 28) and

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Respondents filed a response (Doc. 29). For the following reasons, the Court will overrule

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Petitioner’s objections, adopt the R&R, and terminate this action.

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I.

Background

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The Guilty Plea And Sentencing. In 2016, Petitioner was charged with various drug

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crimes. (Doc. 27 at 2.) While represented by counsel, Petitioner pleaded guilty. (Id.)

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Sentencing took place on April 25, 2018. (Id.) Petitioner received a 6.5-year sentence,

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which was less than the presumptive sentence, with credit for time served. (Id.) Petitioner

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also received, and signed, a “Notice of Rights of Review after Conviction and Procedure”

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form, which explained that there is no right of appeal after a guilty plea, that a petition for

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post-conviction relief (“PCR”) is the proper method to seek relief after a guilty plea, and

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that a PCR notice must be filed within 90 days of entry of judgment. (Id.)

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PCR Proceedings. Petitioner did not file a notice of appeal and did not file a PCR
notice within 90 days of entry of judgment.

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In early 2020 (i.e., more than a year and a half after entry of judgment), Petitioner

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filed an untimely PCR notice. (Id. at 3.) Among other things, the PCR notice asserted that

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Petitioner had not received full presentence incarceration credit. (Id.) The superior court

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denied relief, holding that most of Petitioner’s challenges were untimely without excuse

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and that the credit-related challenge failed on the merits. (Id.)

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Petitioner did not seek further review of the denial of PCR relief. (Id.)

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The Petition. As noted, Petitioner initially filed a § 2254 petition on March 2, 2020,

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and his operative Petition is deemed filed as of that date. Petitioner asserts two grounds

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for relief: (1) Fourth Amendment violations arising from the search that led to Petitioner’s

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arrest and prosecution; and (2) an alleged violation of Petitioner’s Sixth Amendment rights

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to a speedy trial and to effective assistance of counsel. (Id. at 3.) The Petition also asserts

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that Petitioner didn’t seek relief earlier because “[t]he facts are it took me a while to study

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the laws and the Constitution Rights along with reasons that I didn’t know any legal

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opportunities to aid and protect my rights. I was constructively denied counsel and

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completely lost trust in the Judicial system of the State of Arizona and County of

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Maricopa.” (Id.)

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The R&R. The R&R concludes the Petition should be dismissed with prejudice

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because it was filed outside AEDPA’s one-year statute of limitations. (Id. at 4-11.)

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Specifically, the R&R explains that Petitioner’s state-court conviction became final on July

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24, 2018 (i.e., 90 days after entry of judgment), the one-year statute of limitations expired

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on July 24, 2019, and Petitioner’s habeas filing in March 2020 therefore came too late. (Id.

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at 4-6.) The R&R further explains that (1) Petitioner isn’t entitled to statutory tolling

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because he didn’t file his PCR notice until early 2020, which was after the statute of

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limitations had already expired; (2) Petitioner isn’t entitled to equitable tolling (a) because

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his pro se status, indigence, limited legal resources, ignorance of the law, and lack of

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representation don’t constitute “extraordinary circumstances,” (b) although he asserted in

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his reply that he lacked access to the prison legal library until January 2019, this still left

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him with ample time to seek relief before the July 2019 deadline, and (c) he hasn’t, in any

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event, shown that he was diligent in seeking relief; and (3) Petitioner isn’t entitled to the

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equitable exception for actual innocence. (Id. at 6-11.)

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II.

Legal Standard

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A party may file written objections to an R&R within fourteen days of being served

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

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objections must be “specific.” See Fed. R. Civ. P. 72(b)(2) (“Within 14 days after being

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served with a copy of the recommended disposition, a party may serve and file specific

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written objections to the proposed findings and recommendations.”).

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District courts are not required to review any portion of an R&R to which no specific

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objection has been made. See, e.g., Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (“It does

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not appear that Congress intended to require district court review of a magistrate’s factual

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

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those findings.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)

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(“[T]he district judge must review the magistrate judge’s findings and recommendations

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de novo if objection is made, but not otherwise.”). Thus, district judges need not review

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an objection to an R&R that is general and non-specific. See, e.g., Warling v. Ryan, 2013

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WL 5276367, *2 (D. Ariz. 2013) (“Because de novo review of an entire R & R would

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defeat the efficiencies intended by Congress, a general objection ‘has the same effect as

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would a failure to object.’”) (citations omitted); Haley v. Stewart, 2006 WL 1980649, *2

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(D. Ariz. 2006) (“[G]eneral objections to an R & R are tantamount to no objection at all.”).1

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See generally S. Gensler, 2 Federal Rules of Civil Procedure, Rules and
Commentary, Rule 72, at 422 (2018) (“A party who wishes to object to a magistrate judge’s
ruling must make specific and direct objections. General objections that do not direct the
district court to the issues in controversy are not sufficient. . . . [T]he objecting party must
specifically identify each issue for which he seeks district court review . . . .”).
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III.

Analysis

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In his objections to the R&R, Petitioner seems to raise two arguments. (Doc. 28.)

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First, Petitioner contends he is entitled to equable tolling because “[h]ow do[] I prove my

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due diligence of learning the laws and my constitutional rights on my behalf being

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incarcerated in a totally locked down DOC facility?” (Id. at 1.) Second, Petitioner

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contends that Respondents’ failure to address his Fourth and Sixth Amendment claims on

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the merits demonstrates his entitlement to relief on those claims. (Id. at 1-2.)

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Respondents only address Petitioner’s first argument. (Doc. 29.) They contend that

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the “current lockdown” in Petitioner’s facility “did not affect his due diligence when failing

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to properly present his claims to this Court.” (Id. at 2.)

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Petitioner’s objections lack merit. As the R&R correctly notes, the key period for

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assessing equitable tolling is the one-year period after Petitioner’s state-court conviction

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became final, i.e., from July 2018 to July 2019. This period predates the COVID-19

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pandemic, so the current lockdown in Petitioner’s facility is irrelevant. As for earlier

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lockdowns, Petitioner stated in the reply in support of the Petition that when he arrived at

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the Yuma facility, it was “on a total lockdown because of a riot that occurred . . . before I

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arrived,” but the lockdown only lasted “until Jan 2019” at which point the facility

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“return[ed] to normal operations.” (Doc. 26 at 6.) Given this backdrop, the Court agrees

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with and adopts the R&R’s conclusion that Petitioner is not entitled to equitable tolling.

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There were no extraordinary circumstances that prevented Petitioner from seeking relief

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by July 2019—and, indeed, Petitioner did not file his PCR notice until early 2020 and did

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not file his habeas petition until March 2020.

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In light of this finding of untimeliness, there is no need to reach Petitioner’s second
objection, which concerns the substantive merit of his habeas claims.

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Accordingly, IT IS ORDERED that:

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(1)

Petitioner’s objections to the R&R (Doc. 28) are overruled.

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(2)

The R&R’s recommended disposition (Doc. 27) is accepted.

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(3)

The Petition (Doc. 15) is dismissed with prejudice.

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(4)

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

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bar and reasonable jurists would not find the procedural ruling debatable.

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(5)

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Dated this 14th day of October, 2020.

The Clerk shall enter judgment accordingly and terminate this action.

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