Gamez #131401 v. Ryan et al

Filing 68

ORDER ADOPTING 65 REPORT AND RECOMMENDATION. Mr. Gamez's 66 Objections are overruled. IT IS FURTHER ORDERED that Mr. Gamez's 17 Amended Petition for Writ of Habeas Corpus is DENIED and his case is dismissed with prejudice. The Clerk o f the Court is directed to enter judgment accordingly and close this case. A certificate of appealability shall not issue. Before Mr. Gamez can appeal this Court's judgment, a certificate of appealability must issue. (See attached PDF for complete information). Signed by Judge Rosemary Marquez on 4/29/15.(BAC)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Robert Carrasco Gamez,
Petitioner,

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ORDER

v.

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No. CV-12-00639-TUC-RM

Charles L. Ryan, et al.,

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Respondents.

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Pending before the Court is a Report and Recommendation (Doc. 65) issued by

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Magistrate Judge Jacqueline M. Rateau. In the Report and Recommendation, Judge

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Rateau recommends denying and dismissing Petitioner Robert Gamez’s Amended

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Petition for Writ of Habeas Corpus (Doc. 17) filed pursuant to 28 U.S. § 2254. Mr.

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Gamez filed an Objection (Doc. 66) to Judge Rateau’s Recommendation on February 18,

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2015.

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Judge Rateau found that Mr. Gamez’s Petition was untimely because it was filed

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on August 17, 2012, more than three years after the August 1, 2009 deadline. Mr. Gamez

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does not object to this determination and thereby waived his right to de novo review

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thereof. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en

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banc). Nevertheless, this Court has reviewed the full record and finds no substantial

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error, clear or otherwise, in Judge Rateau’s finding of untimeliness.1 See Fed. R. Civ. P.

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Although not material to Judge Rateau’s ultimate finding of untimeliness, this
Court notes that the Report and Recommendation mistakenly misquotes the Arizona
Rules of Criminal Procedure’s instruction of how to timely file a notice of post-

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72(b) advisory committee’s note (“When no timely objection is filed, the court need only

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satisfy itself that there is no clear error on the face of the record in order to accept [a

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magistrate judge’s] recommendation.”).

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Judge Rateau next found that Mr. Gamez’s untimely Petition could not be

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equitably tolled because the record demonstrated that there was no “external force” that

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made it “impossible to file a petition on time.” Report and Recommendation at 11

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(quoting Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999)). Specifically, Judge

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Rateau found that Mr. Gamez’s litigation of various lawsuits in the time period between

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August 2010 and December 2012 indicated that it was not impossible for Mr. Gamez to

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file a timely habeas petition in August 2009. Because Mr. Gamez objected to this portion

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of Judge Rateau’s Report and Recommendation, this Court reviews this determination de

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novo. This Court disagrees with the reasoning that it is evident that Mr. Gamez was able

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to file a petition in 2009 because he did so a year later, but nonetheless agrees that Mr.

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Gamez has not made a sufficient showing to allow him the benefit of equitable tolling.

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To make use of the equitable tolling doctrine, Mr. Gamez must show that he was

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diligent in pursuing his habeas rights and that some “extraordinary circumstances”

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prohibited him from filing his petition on time. Holland v. Florida, 560 U.S. 631, 649

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(2010). Despite his allegations of “systemic deprivation of access to court,” Mr. Gamez

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did not request an extension of time or inform the Court of the difficulties he was having

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filing a timely Petition. Accordingly, he cannot be said to have behaved diligently and to

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warrant an application of equitable tolling.

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This Court, upon its independent and full review of the record, agrees with all

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conviction review. See Report and Recommendation at 9-10. Despite Mr. Gamez’s
apparent impression, his Post-Conviction Relief proceeding was not “of-right,” as such
proceedings are those afforded to petitioners who were convicted via guilty plea rather
than via bench or jury verdict. See Ariz. R. Crim. P. 32.1 (“Any person who pled guilty
or no contest . . . shall have the right to file a post-conviction relief proceeding, and this
proceeding shall be known as a Rule 32 of-right proceeding.”). Because Mr. Gamez pled
not guilty and was convicted by a jury, the proper section of Rule 32.4(a) that dictates the
time at which he was to file a proper notice of post-conviction relief states that “[i]n all
other non-capital cases, the notice must be filed within ninety days after the entry of
judgment and sentence or within thirty days after the issuance of the order and mandate
in the direct appeal, whichever is later.” Ariz. R. Crim. 32.4(a).
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other aspects of Judge Rateau’s Report and Recommendation and finds that Mr. Gamez’s

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Objections in no way undermine the remaining analyses and conclusions therein.

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Accordingly,

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IT IS HEREBY ORDERED that Mr. Gamez’s Objections (Doc. 66) are

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overruled and the Report and Recommendation (Doc. 65) is accepted and adopted as

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detailed herein.

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IT IS FURTHER ORDERED that Mr. Gamez’s Amended Petition for Writ of

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Habeas Corpus (Doc. 17) is denied and his case is dismissed with prejudice. The Clerk

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of the Court is directed to enter judgment accordingly and close this case.

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IT IS FURTHER ORDERED that a certificate of appealability shall not issue.

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Before Mr. Gamez can appeal this Court’s judgment, a certificate of appealability must

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issue. See 28 U.S.C. §2253(c); Fed. R. App. P. 22(b)(1). A certificate may issue “only if

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the applicant has made a substantial showing of the denial of a constitutional right.” 28

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U.S.C. §2253(c)(2). A substantial showing is made if “reasonable jurists could debate

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whether . . . the petition should have been resolved in a different manner,” or if “the

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issues presented were adequate to deserve encouragement to proceed further.” See Slack

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v. McDaniel, 529 U.S. 473, 484-85 (2000) (internal quotation omitted). Upon review of

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the record in light of the standards for granting a certificate of appealability, the Court

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concludes that a certificate shall not issue because the resolution of the Petition is not

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debatable among reasonable jurists and does not deserve further proceedings.

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Dated this 29th day of April, 2015.

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Honorable Rosemary Márquez
United States District Judge

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