Sanchez #290235 v. Ryan et al

Filing 24

ORDER that the Report and Recommendation (Doc. 21 ) is partially accepted and partially rejected as follows: a. The Report and Recommendation is rejected to the extent it finds that Petitioner does not have any Rule 32 proceedings pending in stat e court. b. The Report and Recommendation is otherwise accepted. It is further Ordered Petitioner's Motion to Supplement (Doc. 23 ) is granted. It is further Ordered Petitioner's Motion for Stay and Abeyance (Doc. 18 ) is denied. It is further Ordered the stay entered on 9/1/2017 (Doc. 16 ) is lifted. Respondents must answer the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1 ) within 40 days of the date this Order is filed (see attached Order for complete details). Signed by Judge Rosemary Marquez on 7/30/2018. (MFR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Michael Isidoro Sanchez,
Petitioner,

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ORDER

v.

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No. CV-17-00224-TUC-RM

Charles L Ryan, et al.,

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Respondents.

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On May 16, 2017, Petitioner Michael Isidoro Sanchez, who is confined in the

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Arizona State Prison Complex-Eyman, filed a pro se Petition for Writ of Habeas Corpus

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pursuant to 28 U.S.C. § 2254. (Doc. 1.) On September 1, 2017, this Court stayed the

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above-captioned matter pending resolution of a petition for review of denial of post-

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conviction relief which was then pending in the Arizona Supreme Court. (Doc. 16.)

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Petitioner subsequently filed a Notice of Status (Doc. 20), averring that the Arizona

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Supreme Court denied his petition for review on January 4, 2018.

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Currently pending before this Court is Petitioner’s Motion for Stay and Abeyance

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(Doc. 18). On June 26, 2018, Magistrate Judge D. Thomas Ferraro issued a Report and

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Recommendation (Doc. 21), recommending that this Court deny the Motion for Stay and

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Abeyance. Petitioner filed an Objection on July 6, 2018 (Doc. 22), and on July 9, 2018,

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Petitioner filed a Motion to Supplement the Objection (Doc. 23). Respondents have not

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responded to the Objection or the Motion to Supplement, and the time for doing so has

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now expired.

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I.

Standard of Review

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A district judge “may accept, reject, or modify, in whole or in part, the findings or

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recommendations” made by a magistrate judge. 28 U.S.C. § 636(b)(1). The district

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judge must “make a de novo determination of those portions” of the magistrate judge’s

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

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Id.

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II.

Discussion

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In his Motion for Stay and Abeyance, Petitioner states that he submitted a Notice

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of Post-Conviction Relief on August 8, 2017 to challenge the effectiveness of his first

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Rule 32 counsel. (Doc. 18 at 2.) Petitioner asks this Court to stay his federal habeas

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proceedings pending the conclusion of the new Rule 32 proceeding.

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Petitioner attaches as an exhibit to the Motion a copy of an order from the Cochise

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County Superior Court in Case No. CR201300346, which indicates that Petitioner filed a

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Notice of Post-Conviction Relief on August 10, 2017. (Doc. 18-1.)

(Id. at 4-5.)

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In his Report and Recommendation, Judge Ferraro indicates that he was unable to

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locate any currently pending proceedings related to Petitioner in the Cochise County

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Superior Court or the Arizona Court of Appeals via websites that provide public-access

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case information. (Doc. 21 at 2.) Judge Ferraro accordingly recommends that this Court

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deny Petitioner’s Motion for Stay and Abeyance and lift the stay put in place on

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September 1, 2017. (Id. at 3.)

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In his Objection, Petitioner argues that Judge Ferraro’s recommendation to deny

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his Motion for Stay and Abeyance is based on a factual error, because the website that

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Judge Ferraro relied upon is missing information and is not up to date. (Doc. 22 at 1-2.)

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To show that Rule 32 proceedings are currently pending in Cochise County Superior

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Court, Petitioner attaches various exhibits to his Objection, including a Notice of Post-

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Conviction Relief filed August 10, 2017 in Cochise County Superior Court case number

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CR201300346 (Doc. 22-1 at 3-5).

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successive Rule 32 proceeding in Cochise County Superior Court on August 10, 2017.

Petitioner’s exhibits show that he initiated a

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In his Motion to Supplement, Petitioner avers that he received an order from the

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Cochise County Superior Court dismissing his Rule 32 proceeding, and that he is in the

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process of preparing and filing a motion for reconsideration. (Doc. 23 at 1-2.)1 Petitioner

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attaches a copy of an order in Cochise County Superior Court case number

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CR201300346, dated July 2, 2010, which dismisses his Rule 32 proceeding. (Doc. 23 at

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4-5.) Petitioner also attaches a copy of his motion for reconsideration. (Id. at 6-14.) The

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undersigned’s law clerk contacted the Cochise County Superior Court, and confirmed

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that Petitioner’s motion for reconsideration was filed and had not yet been ruled upon as

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of July 25, 2018. Accordingly, this Court rejects the Report and Recommendation

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insofar as it concludes that Petitioner does not have any Rule 32 proceedings pending in

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state court.

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Nevertheless, this Court accepts Judge Ferraro’s ultimate recommendation to lift

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the stay entered on September 1, 2017 and to deny Petitioner’s Motion for Stay and

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Abeyance. A motion for stay and abeyance should be granted “if the petitioner had good

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cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and

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there is no indication that the petitioner engaged in intentionally dilatory litigation

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tactics.”

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standard.

Rhines v. Weber, 544 U.S. 269, 278 (2005).

Petitioner has not met this

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Petitioner could have exhausted a claim of ineffective assistance of Rule 32

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counsel earlier, and he has not shown good cause for his failure to do so. In Arizona, a

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pleading defendant may challenge the effectiveness of his first Rule 32 counsel in a

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second, timely Rule 32 proceeding. See State v. Pruett, 912 P.2d 1357, 1360 (Ariz. App.

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1995). However, “[a] defendant may raise an of-right claim of ineffective assistance of

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Rule 32 counsel in a successive Rule 32 notice” only if the notice “is filed no later than

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30 days after the final order or mandate in the defendant’s of-right petition for post-

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conviction relief.” Ariz. R. Crim. P. 32.4(a)(2)(C). Petitioner’s first, of-right Rule 32

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The Court will grant Petitioner’s Motion to Supplement, as it provides new
information that could not have been brought to the Court’s attention earlier, and
Respondents did not file a response in opposition to the Motion. See LRCiv 7.2(i).
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petition was denied on May 24, 2016. (Doc. 1 at 4.) Petitioner then filed a second Rule

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32 petition, which was also denied.2 The Rule 32 proceeding that Petitioner initiated on

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August 10, 2017 is his third Rule 32 proceeding, and it was filed more than 30 days after

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the final order or mandate in Petitioner’s first, of-right Rule 32 proceeding. Petitioner has

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not shown good cause for failing to raise in state court an of-right claim of ineffective

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assistance of Rule 32 counsel within 30 days after the final order or mandate in his first,

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of-right Rule 32 petition.

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Accordingly,

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IT IS ORDERED that the Report and Recommendation (Doc. 21) is partially

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accepted and partially rejected as follows:

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a. The Report and Recommendation is rejected to the extent it finds that

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Petitioner does not have any Rule 32 proceedings pending in state court.

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b. The Report and Recommendation is otherwise accepted.

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IT IS FURTHER ORDERED:

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1. Petitioner’s Motion to Supplement (Doc. 23) is granted.

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2. Petitioner’s Motion for Stay and Abeyance (Doc. 18) is denied.

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3. The stay entered on September 1, 2017 (Doc. 16) is lifted.

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4. Respondents must answer the Petition for Writ of Habeas Corpus pursuant to 28

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U.S.C. § 2254 (Doc. 1) within 40 days of the date this Order is filed. Respondents

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must not file a dispositive motion in place of an answer but may file an answer

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limited to relevant affirmative defenses, including but not limited to, statute of

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limitations, procedural bar, or non-retroactivity.

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affirmative defenses, only those portions of the record relevant to those defenses

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need be attached to the answer. Failure to set forth an affirmative defense in an

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answer may be treated as a waiver of the defense. Day v. McDonough, 547 U.S.

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198, 209-11 (2006). If not limited to affirmative defenses, the answer must fully

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comply with all of the requirements of Rule 5 of the Rules Governing Section

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If the answer is limited to

As noted above, the Arizona Supreme Court denied a petition for review of the
denial of the second Rule 32 petition on January 4, 2018. (Doc. 20.)
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2254 Cases.

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5. Regarding courtesy copies of documents for chambers, Respondents are directed

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to review Section II(D) of the Court’s Electronic Case Filing Administrative

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Policies and Procedures Manual, which requires that “a courtesy copy of the filing,

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referencing the specific document number, shall be printed directly from

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CM/ECF.”3

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6. Petitioner may file a reply within 30 days from the date of service of the answer.

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7. This matter continues to be referred to Magistrate Judge D. Thomas Ferraro

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pursuant to Rules 72.1 and 7.2.2 of the Local Rules of Civil Procedure for further

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proceedings and a report and recommendation.

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Dated this 30th day of July, 2018.

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See
http://www.azd.uscourts.gov/sites/default/files/documents/adm%20manual.pdf
(emphasis added).
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