Soucy v. Ryan et al

Filing 32

ORDERED that the Magistrate Judge's 28 Report and Recommendation is accepted and adopted as the findings of fact and conclusions of law of this Court. Further ordered that the Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody is DENIED. It is further ordered that the Petition is DISMISSED. Further ordered that the Clerk of the Court shall enter Judgment accordingly. Further ordered that in the event Petitioner files an appeal, the Court dec lines to issue a certificate of appealability, pursuant to Rule 11(a) of the Rules Governing Section 2254 cases because reasonable jurists would not find the Courts procedural ruling debatable. Signed by Senior Judge David C Bury on 8/31/2017. (BAR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Ryan Starr Soucy,

No. CV-17-00110-TUC-DCB

Petitioner,

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v.

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ORDER

Charles L Ryan, et al.,

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Respondents.

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REPORT AND RECOMMENDATION: ADOPTED

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This matter was referred to Magistrate Judge Leslie A. Bowman on March 27,

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2017, pursuant to the Rules of Practice for the United States District Court, District of

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Arizona (Local Rules), Rule (Civil) 72.1(a). On August 3, 2017, Magistrate Judge

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Bowman issued a Report and Recommendation (R&R). (Doc. 30.) She recommended

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that the Court deny and dismiss the habeas Petition and deny the motion to stay. The

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Magistrate Judge found the Petition to be time-barred and a stay to be futile. The Court

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accepts and adopts the Magistrate Judge’s R&R as the findings of fact and conclusions of

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law of this Court and denies the Petition and the Motion to Stay.

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STANDARD OF REVIEW

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The duties of the district court in connection with a R&R by a Magistrate Judge

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are set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. §

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636(b)(1). The district court may “accept, reject, or modify, in whole or in part, the

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findings or recommendations made by the magistrate judge.” Fed.R.Civ.P. 72(b); 28

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U.S.C. § 636(b)(1). Where the parties object to a R&R, “‘[a] judge of the [district] court
shall make a de novo determination of those portions of the [R&R] to which objection is
made.’” Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (quoting 28 U.S.C. § 636(b)(1)).
This Court's ruling is a de novo determination as to those portions of the R&R to
which there are objections. 28 U.S.C. § 636(b)(1)(C); Wang v. Masaitis, 416 F.3d 992,
1000 n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th
Cir.2003) (en banc). To the extent that no objection has been made, arguments to the
contrary have been waived. Fed. R. Civ. P. 72; see 28 U.S.C. § 636(b)(1) (objections are
waived if they are not filed within fourteen days of service of the R&R), see also McCall
v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980) (failure to object to Magistrate's report
waives right to do so on appeal); Advisory Committee Notes to Fed. R. Civ. P. 72 (citing
Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974) (when no
timely objection is filed, the court need only satisfy itself that 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, pursuant to 28 U.S.C.
§ 636(b)(1), they had 14 days to file written objections. See also, Fed. R. Civ. P. 72
(party objecting to the recommended disposition has fourteen (14) days to file specific,
written objections). The Court has considered the objections filed by the Petitioner, and
the parties’ briefs considered by the Magistrate Judge in deciding the Petition and motion.
OBJECTION
The Petitioner objects to the R&R. He challenges this Court’s deference to the
State’s interpretation of state law, Ariz.R.Crim.P. 32, and argues it does not govern this
case because the dismissal of his second Petition for Post Conviction Relief (PCR) was
without prejudice—a circumstance not covered by Rule 32. He asks this Court to
consider his third PCR Petition, filed on April 16, 2014, as an amended second PCR

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Petition, which would relate back to March 4, 2013, the Notice date, and/or May 8, 2013,
the filing date of the second PCR.
Rule 32 requires “a subsequent PCR notice to be filed within 30 days ‘after the
issuance of the final order or mandate by the appellate court in the petitioner’s first
Petition for post-conviction relief proceeding.’” (R&R (Doc. 28) at 2 (quoting Ariz. R.
Crim. P. 32.4(a)). The first PCR became final on October 16, 2013. Under the AntiTerrorism and Effective Death Penalty Act of 1997 (ADEPA), he had one year to seek
habeas relief. Treating the third PCR as an amended second Petition provides Petitioner
with a backdated filing date to March or May, 2013, -- either being timely. This would
toll the one-year statute of limitations period until its resolution, which occurred August
22, 2016.

Petitioner filed his habeas Petition with this Court on March 3, 2017.

Accordingly, it would not be barred by the AEDPA one-year statute of limitations.
Petitioner’s proposed scheme is not new. As the Magistrate Judge noted, the
Arizona Court of Appeals rejected it and ruled that the third PCR Petition was untimely.
This interpretation of state law by the state court binds this federal court sitting in habeas
corpus. (R&R (Doc. 28) at 6 (quoting Bradshaw v. Richey, 546 U.S. 74, 76 (2005).
Alternatively, this Court agrees with the Magistrate Judge’s logic in rejecting Petitioner’s
argument that the dismissal of the second PCR without prejudice confused him into
believing it could be refiled, which he did when he filed the next (third) PCR Petition.
The Magistrate Judge reasoned that any confusion ended once the PCR Court dismissed
his third PCR Petition as untimely on June 24, 2015. Nothing prevented him from filing
his habeas case then, and thereafter, the Petitioner lacked the requisite diligence
necessary to toll the limitation period for filing a habeas case in federal court. The Court
agrees that any equitable tolling due to confusion ended on June 24, 2016. He did not file
his habeas case until March 3, 2017.

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CONCLUSION
The Magistrate Judge correctly found the habeas Petition is time-barred. A stay to
allow Petitioner to exhaust unexhausted claims in the state courts would be futile. After a
de novo review of the Petitioner’s objections, this Court agrees with the findings of fact
and conclusions of law made by the Magistrate Judge in her R&R for determining the
habeas Petition and the Motion to Stay. The Court adopts it, and for the reasons stated in
the R&R, the Court denies both.
Accordingly,
IT IS ORDERED that after a full and independent review of the record, in respect
to the objections, the Magistrate Judge's Report and Recommendation (Doc. 28) is
accepted and adopted as the findings of fact and conclusions of law of this Court.
IT IS FURTHER ORDERED that the Petition Under 28 U.S.C. § 2254 for a
Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 1) is
DENIED.
IT IS FURTHER ORDERED that the Petition (Doc. 1) is DISMISSED.
IT IS FURTHER ORDERED that the Clerk of the Court shall enter Judgment
accordingly.
IT IS FURTHER ORDERED that in the event Petitioner files an appeal, the
Court declines to issue a certificate of appealability, pursuant to Rule 11(a) of the Rules
Governing Section 2254 cases because reasonable jurists would not find the Court’s
procedural ruling debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Dated this 31st day of August, 2017.

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