Baca v. Thornell et al

Filing 22

ORDER that Magistrate Judge Boyle's R&R 11 is accepted and adopted as the Order of this Court. IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 1 is denied and dismissed with prejudice. Pu rsuant to Rule 11(a) of the Rules Governing Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied because dismissal of the Petition is justified by a plain procedural bar and jurists of reas on would not find the procedural ruling debatable. IT IS FURTHER ORDERED that Respondents' Motions to Strike (Docs. 17 , 19 , 21 ) are granted and Petitioner's unauthorized Supplemental Filings (Docs. 16 , 18 , 20 ) are stricken. IT IS FINALLY ORDERED that the Clerk of Court shall terminate this action and enter judgment accordingly. Signed by Judge Diane J Humetewa on 1/3/2025. (KLG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Edward Rabago Baca,
Petitioner,

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v.

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Ryan Thornell, et al.,

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No. CV-23-01789-PHX-DJH
ORDER

Defendants.

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This matter is before the Court on Petitioner’s Petition for Writ of Habeas Corpus

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under 28 U.S.C. § 2254 (Doc. 1) filed on August 28, 2023, and the Report and

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Recommendation (“R&R”) issued by United States Magistrate Judge John Z. Boyle

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(Doc. 11) on April 24, 2024. Petitioner filed an Objection to the R&R (“Objection”)

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(Doc. 14) and Respondents filed a Reply (Doc. 15). Petitioner subsequently filed a

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Supplement to his Objection (“First Supplement”) (Doc. 16); a “Reply to Respondents’

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Reply to Petitioner’s Objection” (“Second Supplement”) (Doc. 18); and a Reply to his

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“Reply to Respondents’ Reply to Petitioner’s Objection” (“Third Supplement”) (Doc. 20)

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(collectively, “Supplemental Filings”).

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Supplemental Filings (Docs. 17, 19, 21).

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I.

Respondents ask the Court to strike the

Standard of Review

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A district judge “shall make a de novo determination of those portions of the report

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or specified proposed findings or recommendations to which objection is made.” 28

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U.S.C. § 636(b)(1)(C); see also Fed.R.Civ.P. 72(b)(3) (“The district judge must determine

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de novo any part of the magistrate judge’s disposition that has been properly objected to.”);

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U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (2003) (same). The judge “may accept, reject,

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or modify, in whole or in part, the findings or recommendations made by the magistrate

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judge.” 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(3).

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II.

The R&R and Petitioner’s Objection

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Federal petitions for habeas corpus are governed by the Antiterrorism and Effective

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Death Penalty Act of 1996 (“AEDPA”). AEDPA imposes a one-year limitation period on

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the filing of habeas petitions, a deadline that begins to run “from the latest of. . . the date

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on which the judgment became final by the conclusion of direct review or the expiration

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of the time for seeking such review[.]” 28 U.S.C. § 2244(d)(1)(A).

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After a thorough analysis, Judge Boyle determined that Petitioner’s Petition was

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filed years after AEDPA’s statute of limitations period expired. He also found that

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Petitioner was not entitled to statutory or equitable tolling, and that Petitioner had failed to

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demonstrate or argue actual innocence. (Doc. 11). Accordingly, Judge Boyle recommends

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the Petition be denied and dismissed with prejudice. (Id.)

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Petitioner’s Objection reiterates many of the merit-based arguments he advances in

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his Petition. Judge Boyle, however, did not reach the merits of Petitioner’s claims because

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he found the Petition was untimely. (Doc. 11 at 4–5). See also White v. Klitzkie, 281 F.3d

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920, 921–22 (9th Cir. 2002) (whether a federal habeas petition is time-barred must be

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resolved before considering other procedural issues or the merits of any habeas claim).

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Where the Court agrees with the procedural findings and conclusions of the R&R, as it

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does here, it is not obligated to review Petitioner’s merit-based objections under the Federal

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Magistrates Act. Thomas v. Arn, 474 U.S. 140, 150 (1985) (where there is no objection to

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a magistrate’s factual and legal determinations, the district court need not review the

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decision “under a de novo or any other standard”).

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Indeed, Petitioner does not object to the factual basis from which Judge Boyle

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calculated Petitioner’s applicable statute of limitations and filing deadlines. Petitioner

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instead argues that state rules allow a defendant to challenge the subject matter jurisdiction

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of the court “at any time” and thus AEDPA’s one-year statute of limitation for filing habeas

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petitions does not apply to him. (Doc. 14 at 7 (arguing Rule 16.1 “overcomes the procedural

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bar applied by R. 32.4(b)(3)(4), and therefore does not start the one-year statute of

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limitations, and overrides AEDPA”).1 Not so. Though Petitioner is correct that he may

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raise an objection to subject matter jurisdiction at any time, he must still comply with

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AEDPA’s one-year statute of limitation for filing habeas petitions. Here, Petitioner’s

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conviction became final on July 20, 2018—one year after his deadline to file his post-

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conviction review notice. (Doc. 11 at 4–5). Petitioner did not challenge his conviction in

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state court until June 2, 2024; he did not file his federal habeas petition until August 18,

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2023. Thus, neither his state nor federal challenge was timely.
Judge Boyle’s analysis and recommendations on the timeliness of Petitioner’s

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Petition are sound and the Court adopts them in their entirety.

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III.

Petitioner’s Supplemental Filings

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The Court will also grant Respondents’ Motions to Strike Petitioner’s Supplemental

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Filings. Petitioner’s First Supplement (Doc. 16) asks the Court to consider the State of

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Arizona’s response to his state-filed motion to dismiss and the superior court’s ruling on

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his fourth Rule 33 proceeding. (Id. at 2–10). Petitioner says these filings support his

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position that he was convicted in the wrong jurisdiction. Notably, this Court need not

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“consider evidence presented for the first time in a party’s objection to a magistrate judge’s

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recommendation.” United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000). But even

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if it were to consider these filings, they do not explain or justify the untimeliness of

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Petitioner’s federal habeas petition. Nor do the supplemental arguments Petitioner makes

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in his Second and Third Supplements. Moreover, and as Respondents point out, neither

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the Rules of Civil Procedure nor this Court’s Local Rules authorize a petitioner to file a

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sur-reply in support of objections to an R&R. See Fed. R. Civ. P. 7; Local R. Civ. P. 7.2.

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Rule 72(b)(2) of the Rules of Civil Procedure expressly authorizes parties to file objections

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to a magistrate’s R&R, as well as responses thereto, but does not authorize filing a reply to

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Petitioner made the same argument in his Petition (Doc. 1 at 80).
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any response. Consistent with Rule 72, Judge Boyle’s R&R did not authorize or set a time

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for Petitioner to file a sur-reply to Respondents’ reply to his objections. (Doc. 11 at 9–10).

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Neither the Rules of Civil Procedure nor this Court’s Local Rules entitle a party to file

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supplements or sur-replies in support of objections to an R&R, and Petitioner has not stated

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a reason he should be permitted to do so. Therefore, the Second and Third Supplements

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will also be stricken. See Guerrero v. Shinn, No. CV–22–01091–PHX–MTL, 2023 WL

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3650488, at *1 (D. Ariz. May 25, 2023) (“The Court agrees with Respondents that neither

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the Federal Rules of Civil Procedure nor this Court’s local rules authorize Petitioner to file

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a sur-reply absent authorization from the Court.”).

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IV.

Conclusion

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Based on the foregoing,

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IT IS ORDERED that Magistrate Judge Boyle’s R&R (Doc. 11) is accepted and

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adopted as the Order of this Court.

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IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus pursuant

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to 28 U.S.C. § 2254 (Doc. 1) is denied and dismissed with prejudice. Pursuant to Rule

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11(a) of the Rules Governing Section 2254 Cases, a Certificate of Appealability and leave

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to proceed in forma pauperis on appeal are denied because dismissal of the Petition is

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justified by a plain procedural bar and jurists of reason would not find the procedural ruling

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debatable.

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IT IS FURTHER ORDERED that Respondents’ Motions to Strike (Docs. 17,

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19, 21) are granted and Petitioner’s unauthorized Supplemental Filings (Docs. 16, 18, 20)

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are stricken.

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IT IS FINALLY ORDERED that the Clerk of Court shall terminate this action and
enter judgment accordingly.
Dated this 3rd day of January, 2025.
Honorable Diane J. Humetewa
United States District Judge

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