Escobar v. Ryan et al

Filing 16

ORDER adopting Report and Recommendations 15 , as the opinion of the Court. IT IS FURTHER ORDERED that the Petition (Doc. 1 ) is dismissed, and the Clerk of the Court shall enter judgment accordingly. IT IS FURTHER ORDERED that pursuant to Rule 11 (a) of the Rules Governing Section 2254 Cases, in the event Petitioner files an appeal, the Court declines to issue a certificate of appealability because reasonable jurists would not find the Court's procedural ruling debatable. Signed by Senior Judge David C Bury on 7/27/2016. (SIB)

Download PDF
1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 CV-14-02140-TUC-DCB (BPV) Mark Anthony Escobar, Jr., Petitioner, ORDER v. Charles L. Ryan, et al., Respondents. 14 15 16 This matter was referred to Magistrate Judge Bernardo P. Velasco on June 25, 17 2014, pursuant to Rules of Practice for the United States District Court, District of 18 Arizona Rule (Civil) 72.1(a). On June 8, 2016, Magistrate Judge Velasco issued a Report 19 20 and Recommendation (R&R). (Doc. 15). He recommends that the District Court dismiss 21 the Petition for a Writ of Habeas Corpus as procedurally defaulted. The Court accepts 22 and adopts the Magistrate Judge’s R&R as the findings of fact and conclusions of law of 23 this Court and denies the Petition for Writ of Habeas Corpus. 24 25 26 27 STANDARD OF REVIEW The duties of the district court in connection with a R&R by a Magistrate Judge are set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. §636(b)(1). 28 The district court may “accept, reject, or modify, in whole or in part, the findings or 1 recommendations made by the magistrate judge.” Fed.R.Civ.P. 72(b); 28 U.S.C. 2 §636(b)(1). When the parties object to an R&R, “[a] judge of the [district] court shall 3 make a de novo determination of those portions of the [R&R] to which objection is 4 5 made.” Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (quoting 28 U.S.C. §636(b)(1)). 6 When no objections are filed, the district court does not need to review the R&R de novo. 7 Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005); United States v. Reyna-Tapia, 8 9 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc). Pursuant to 28 U.S.C. § 636(b), this Court makes a de novo determination as to 10 11 12 those portions of the R&R to which there are objections. 28 U.S.C. § 636(b)(1) ("A judge of the court shall make a de novo determination of those portions of the report or 13 14 specified proposed findings and recommendations to which objection is made.") To the 15 extent that no objection has been made, arguments to the contrary have been 16 waived. McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980) (failure to object to 17 18 Magistrate's report waives right to do so on appeal); see also, Advisory Committee Notes 19 to Fed. R. Civ. P. 72 (citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 20 (9th Cir. 1974) (when no timely objection is filed, the court need only satisfy itself that 21 22 there is no clear error on the face of the record in order to accept the recommendation). The parties were sent copies of the R&R and instructed that they had 14 days to 23 24 25 file written objections. 28 U.S.C. §636(b), see also, Federal Rule of Criminal Procedure 72 (party objecting to the recommended disposition has fourteen (14) days to file 26 27 specific, written objections). To date, no objections have been filed. 28 ///// -2- REPORT & RECOMMENDATION 1 2 3 The Honorable Bernardo P. Velasco, United States Magistrate Judge, considered the correct standard for exhaustion and procedural default for a federal habeas petition. 4 5 Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a writ of 6 habeas corpus cannot be granted unless it appears that the petitioner has exhausted all 7 available state court remedies. 28 U.S.C. §2254(b)(1); see also Coleman v. Thompson, 8 9 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509 (1982). Petitioner failed to 10 present to the Arizona Court of Appeals the claims he raises in his federal Petition and 11 therefore has failed to exhaust his state court remedies. See Baldwin v. Reese, 541 U.S. 12 27, 29 (2004) (“To provide the State with the necessary ‘opportunity,’ the prisoner must 13 14 ‘fairly present’ his claim in each appropriate state court . . . thereby alerting that court to 15 the federal nature of the claim.”). Furthermore, Petitioner would no longer have a remedy 16 if he returned to the Arizona courts to present the claims he raises here. Rule 32.2(a)(3) of 17 18 the Arizona Rules of Criminal Procedure provides that a defendant is precluded from 19 post-conviction relief on any ground that was waived in any previous collateral 20 proceeding. Petitioner waived appellate review of his ineffective assistance of counsel 21 22 claim raised in his first Post-Conviction Relief Petition by withdrawing that Petition in 23 2014 at the hearing on remand from the appellate court. Although he also raised the claim 24 in his Third PCR Petition filed in 2013, he did not request appellate court review of the 25 ///// 26 27 ///// 28 -3- 1 trial court’s denial of his Third PCR Petition and is now barred from doing so. See 2 Ariz.R.Crim.P. 32.4(a); see also Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002) (a 3 state post-conviction action is futile when it is time-barred). Therefore, any additional 4 5 petitions would be subject to summary dismissal. See State v. Rosario, 195 Ariz. 264, 6 266, 987 P.2d 226, 228 (App. 1999); State v. Jones, 182 Ariz. 432, 897 P.2d 734 (App. 7 1995); Moreno v. Gonzalez, 192 Ariz. 131, 135, 962 P.2d 205, 209 (1998) (timeliness is a 8 9 separate inquiry from preclusion). (R&R) (Doc. 15) at 8-9.) 10 Petitioner has not argued or otherwise shown cause or prejudice to overcome the 11 procedural default in this case. Furthermore, Petitioner has not argued or otherwise 12 shown that a fundamental miscarriage of justice has occurred which would require this 13 14 15 16 17 18 Court to address his claims on the merits. Id. at 9. Here, there are no objections and review has, therefore, been waived, but the Court nevertheless reviews at a minimum, de novo, the Magistrate Judge’s conclusions of law. Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (citing Turner v. Duncan, 19 158 F.3d 449, 455 (9th Cir. 1998) (conclusions of law by a magistrate judge reviewed de 20 novo); Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991) (failure to object standing 21 22 23 24 25 alone will not ordinarily waive question of law, but is a factor in considering the propriety of finding waiver)). The Court finds the R&R to be thorough and well-reasoned, without any clear error in law or fact. See United States v. Remsing, 874 F.2d 614, 617-618 (9th Cir. 1989) 26 27 (citing 28 U.S.C. §636(b)(1)(A) as providing for district court to reconsider matters 28 delegated to magistrate judge when there is clear error or recommendation is contrary to -4- 1 law). The Magistrate Judge properly applied the law of exhaustion and procedural 2 default. The Court accepts and adopts the R&R as the opinion of the Court, pursuant to 3 28 U.S.C. §636(b)(1). 4 5 6 7 Accordingly, IT IS ORDERED that the Report and Recommendation (Doc. 15) is adopted as the opinion of the Court. 8 9 10 11 12 IT IS FURTHER ORDERED that the Petition (Doc. 1) is dismissed, and the Clerk of the Court shall enter judgment accordingly. IT IS FUTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, in the event Petitioner files an appeal, the Court declines to issue a 13 14 certificate of appealability because reasonable jurists would not find the Court’s 15 procedural ruling debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). 16 Dated this 27th day of July, 2016. 17 18 19 20 Honorable David C. Bury United States District Judge 21 22 23 24 25 26 27 28 -5-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?