Sorro v. Arizona, State of

Filing 49

ORDERED that the Motion for Leave of Court to Expand the Record 32 is DENIED. Motion to Disclose Obstruction of Justice 33 , Motion to Vacate sentence (Docs. 34 and 35); Motion: Re-Disclosed the First was Missing 06/20/2015; Motion: Present Fabri cation Arrest Report by Detective Ives; Motion: To Vacate with a Memorandum of Understanding 36 , Motion for Federal Question Jurisdiction ProsecutionPerjury 38 ; Motion for Federal QuestionObstruction of Justice or Conspiracy 39 ; Motion for Fede ral Question Jurisdiction-Privacy 40 ; Motion:Brady Violation; Motion: Request Rule 4A Search and Seizure; Motion: Vacate Sentence 41 ; Motion for Federal Question Fraudulent Concealment (Brady Violation) 42 ; Motion for Federal Question Right to Remain Silent 5th and 14th 43 ; Motion to Support of Habeas Corpus Relief, and; Motion Vacate Conviction in Release 44 are DENIED. Pursuant to the Request for Clarification Status 45 the Court accepts the submission of the documents in support o f Arido-Sorro's habeas petition. The Motion for Judicial NoticeComplete and Total Denial of Natural Justice 47 and Motion for Objections Recommendation for Magistrate Judge 48 , accepted as Arido-Sorro's Objection to the R & R, are OVERR ULED. The Report and Recommendation 46 is ADOPTED; Arido-Sorro's Amended Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody 10 is DENIED; The Clerk of the Court shall enter judgment and shall then close its file in this matter, and a Certificate of Appealability shall not issue in this case. Signed by Senior Judge Cindy K Jorgenson on 01/07/20. (MYE)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Marvin Arido-Sorro,
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Petitioner,
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vs.
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Charles L. Ryan, et al.,
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Respondents.
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No. CIV 18-219-TUC-CKJ (JR)
ORDER

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On February 6, 2019, Magistrate Judge Jacqueline Rateau issued a Report and

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Recommendation (“R & R”) (Doc. 23) in which she recommended that the Amended

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Petition1 Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody

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(Doc. 10) filed by Marvin Arido-Sorro (“Arido-Sorro”) be dismissed with prejudice. Arido-

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Sorro has filed a Motion for Objections Recommendation for Magistrate Judge (Doc. 48).

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Respondents have not filed a Response.

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Additional motions filed by Arido-Sorro are pending before the Court: Rule 6 Motion

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for Leave of Court to Expand the Record, Rule 7(a)(b)(c), for Section 2254 Cases (Doc. 32),

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Motion to Disclose Obstruction of Justice by States of Arizona Superior Court, Case No. CR

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2015-2545 (Doc. 33), Motion to Vacate sentence (Legal and Constitutional Defenses) (Equal

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Protection U.S. Constitution) (AEDPA Standards) (Docs. 34 and 35), Motion: Re-Disclosed

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Arido-Sorro also submitted a brief (Doc. 9) in support of his habeas petition.

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the First was Missing 06/20/2015; Motion: Present Fabrication Arrest Report by Detective

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Ives #49854 T.P.D.; Motion: To Vacate with a Memorandum of Understanding (Doc. 36),

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Motion to Support of Habeas Corpus Relief – ABA Standards for Criminal Justice (Doc. 37),

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Motion for Federal Question Jurisdiction Prosecution – Perjury (Doc. 38), Motion for Federal

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Question – Obstruction of Justice or Conspiracy (Doc. 39), Motion for Federal Question

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Jurisdiction - Privacy (Doc. 40), Motion: Brady Violation; Motion: Request Rule 4A Search

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and Seizure (3)(e)(a), in Accordance with Rule 4A; Motion: Vacate Sentence (Doc. 41),

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Motion for Federal Question Fraudulent Concealment (Brady Violation) (Doc. 42), Motion

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for Federal Question Right to Remain Silent 5th and 14th (Doc. 43), Motion to Support of

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Habeas Corpus Relief; Motion Vacate Conviction in Release (Doc. 44), and Request for

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Clarification Status, Rule 16.2(b)(4)(C) LRCiv (Doc. 45).2

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Additionally, after the issuance of the R & R, Arido-Sorro filed a Motion for Judicial

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Notice – Complete and Total Denial of Natural Justice (Doc. 47) and a Motion for Objections

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Recommendation for Magistrate Judge (Doc. 48). The Court accepts these documents as

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Arido-Sorro’s Objections to the R & R.

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Rule 6 Motion for Leave of Court to Expand the Record, Rule 7(a)(b)(c), for Section 2254
Cases (Doc. 32)

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Arido-Sorro seeks discovery regarding bar records and the deposition of defense trial
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counsel. Arido-Sorro also seeks to provide testimony regarding interference by the Arizona
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Department of Corrections with his receipt of mail regarding bar investigation findings from
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California and Arizona.
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“A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to
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discovery as a matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997).
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The magistrate judge declined to address these filings as Arido-Sorro was not granted
leave to submit the additional filings. While this Court agrees with the conclusion of the
magistrate judge, the Court will briefly discuss these motions.

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However, for good cause, a court may allow discovery in a § 2254 Proceeding. Rules

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Governing Section 2254 Cases 6(a). Good cause under Rule 6(a) exists “where specific

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allegations before the court show reason to believe that the petitioner may, if facts are fully

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developed, be able to demonstrate that he is . . . entitled to relief[.]” Bracy v. Gramley, 520

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U.S. 899, 908–09, (1997), quoting Harris v. Nelson, 394 U.S. 286, 300 (1969). As

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summarized by the Ninth Circuit Court of Appeals:

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[F]ederal habeas court must allow discovery and an evidentiary hearing only where
a factual dispute, if resolved in the petitioner's favor, would entitle him to relief . . .
Conclusory allegations are not enough to warrant discovery under Rule 6 . . . ; the
petitioner must set forth specific allegations of fact. Rule 6 . . . does not authorize
fishing expeditions.”).

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Calderon v. U.S. Dist. Court for the N. Dist. of California, 98 F.3d 1102, 1106 (9th Cir.

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1996), quoting Ward v. Whitley, 21 F.3d 1355, 1367 (5th Cir.1994) (footnotes omitted).

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Here, the information provided to the Court indicates that any disciplinary proceedings

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against trial defense counsel involved financial management (e.g, management of trust

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account and client funds) and not the substantive representation of clients. Further, although

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Arido-Sorro refers to the disbarment of counsel, the documentation provided to the Court

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indicates counsel has been censured and suspended, but not disbarred, and was in active

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status at the time of Arido-Sorro’s proceedings. See also Calif. Bar Summary of Abrams,

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http://members.calbar.ca.gov/fal/Licensee/Detail/117481. Arido-Sorro has not shown how

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any such misconduct is relevant to whether trial defense counsel provide effective assistance

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to Arido-Sorro. In other words, Arido-Sorro has not made any specific allegations which

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provide the Court reason to believe Arido-Sorro may be entitled to relief if discovery was

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permitted and facts were fully developed. The Court will deny this request.

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Motion to Disclose Obstruction of Justice by States of Arizona Superior Court, Case No. CR
2015-2545 (Doc. 33), Motion to Vacate sentence (Legal and Constitutional Defenses) (Equal
Protection U.S. Constitution) (AEDPA Standards) (Docs. 34 and 35); Motion: Re-Disclosed
the First was Missing 06/20/2015; Motion: Present Fabrication Arrest Report by Detective
Ives #49854 T.P.D.; Motion: To Vacate with a Memorandum of Understanding (Doc. 36),
Motion for Federal Question Jurisdiction Prosecution – Perjury (Doc. 38); Motion for
Federal Question – Obstruction of Justice or Conspiracy (Doc. 39); Motion for Federal

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Question Jurisdiction - Privacy (Doc. 40); Motion: Brady Violation; Motion: Request Rule
4A Search and Seizure (3)(e)(a), in Accordance with Rule 4A; Motion: Vacate Sentence
(Doc. 41); Motion for Federal Question Fraudulent Concealment (Brady Violation) (Doc.
42); Motion for Federal Question Right to Remain Silent 5th and 14th (Doc. 43); Motion to
Support of Habeas Corpus Relief; Motion Vacate Conviction in Release (Doc. 44)

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These pending motions filed by Arido-Sorro repeat and supplement the allegations

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and arguments made by Arido-Sorro in his habeas petition and supplemental brief. However,

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Arido-Sorro has not provided any reasons in the habeas petition, supplemental brief, or

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pending motions why the allegations and arguments presented in his habeas petition and

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supporting brief insufficiently present his claims. The Court will summarily deny these

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motions.

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Motion to Support of Habeas Corpus Relief – ABA Standards for Criminal Justice (Doc. 37)

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In his habeas petition, Arido-Sorro requested the opportunity to supplement his

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ineffective assistance of counsel claims. The Court accepts this motion as Arido-Sorro’s

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supplement to this claim. The Court will grant this request to the extent it provides

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supplemental argument to the Court.

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Request for Clarification Status, Rule 16.2(b)(4)(C) LRCiv (Doc. 45)

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Arido-Sorro submits exhibits that were previously provided and submits additional

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exhibits. The Court accepts the submission of these documents in support of Arido-Sorro’s

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habeas petition.

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Report and Recommendation

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This Court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). Further, under 28 U.S.C.

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§ 636(b)(1), if a party makes a timely objection to a magistrate judge's recommendation, then

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this Court is required to “make a de novo determination of those portions of the [report and

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recommendation] to which objection is made.” “The objections must specifically identify

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those findings or recommendations to which objections are being made. Frivolous,

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conclusive or general objections need not be considered by the district court.” Battle v. U.S.

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Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987). To be “specific,” the objection must,

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with particularity, identify the portions of the proposed findings, recommendations, or report

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to which it has an objection and the basis for the objection. See Mario v. P & C Food

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Markets, Inc., 313 F.3d 758, 766 (2nd Cir. 2002).

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28 U.S.C. § 636(b)(1) does not “require [] some lesser review by [this Court] when

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no objections are filed.” Thomas v. Arn, 474 U.S. 140, 149-50 (1985). Rather, this Court

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is not required to conduct “any review at all . . . of any issue that is not the subject of an

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objection.” Id. at 149. Moreover, under Fed.R.Civ.P. 72(b), a district court may adopt those

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parts of a magistrate judge's report to which no specific objection is made, provided they are

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not clearly erroneous. Thomas v. Arn, 474 U.S. 140, 151-153 (1985); United States v.

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Reyna-Tapia, 328 F.3d 1114, 1119 (9th Cir. 2003).

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In this case, the Objection filed by Arioo-Sorro does not make any specific objections

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to the R & R. Indeed, instead of citing objections to specific portions of the R & R, Arido-

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Sorro merely submitted a revised version of the same arguments it presented to the

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Magistrate Judge. As stated by another district court:

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This . . . is an improper attempt to rehash his entire argument and have this Court
conduct a duplicative review where nearly every issue presented to the Magistrate
Judge was raised for a second time on objection. Camardo v. Gen. Motors
Hourly-Rate Employees Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992)
(“parties are not to be afforded a ‘second bite at the apple’ when they file objections
to a Report and Recommendation, as the ‘goal of the federal statute providing for the
assignment of cases to magistrates is to ‘increas[e] the overall efficiency of the federal
judiciary.’’” (quoting McCarthy v. Manson, 554 F. Supp. 1275, 1286 (D. Conn.
1982))).

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Kenniston v. McDonald, No. 15-CV-2724-AJB-BGS, 2019 WL 2579965, at *8 (S.D. Cal.

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June 24, 2019).

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As Arido-Sorro has not made any specific objections to the R & R, the Court will

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conduct an independent review of the R & R and review it for any clearly erroneous

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conclusions.

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Review of Report and Recommendation
The Court has reviewed the R & R and finds that it is not clearly erroneous. The
Court, therefore, will adopt the R & R.

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However, the Court finds it appropriate to briefly discuss Arido-Sorro’s claim of

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ineffective assistance of his Rule 32 counsel. Arido-Sorro asserts in his Brief that Rule 32

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counsel impeded his right to timely file a Rule 32 petition, “precluding him from raising

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additional claims for relief.” Brief (Doc.9, p. 3). He asserts the letter received from Rule 32

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counsel was not received until after August 16, 2018, which compromised this action and the

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filing of a timely second Rule 32 petition. The magistrate judge considered this allegation

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in determining whether Arido-Sorro had established cause and prejudice to excuse the non-

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exhaustion of claims, but did not independently consider whether Rule 32 counsel provided

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ineffective assistance.

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As stated by the magistrate judge, “Arido-Sorro must show both deficient

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performance and prejudice in order to establish that his counsel’s representation was

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ineffective.” R & R, p. 14, citing Strickland v. Washington, 466 U.S. 668 (1984). However,

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as discussed by the magistrate judge, Arido-Sorro has not demonstrated that trial counsel was

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ineffective. In other words, Arido-Sorro cannot demonstrate he was prejudiced by Rule 32

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counsel’s alleged impeding of Arido-Sorro’s filing of a Rule 32 petition because he would

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not have been successful in a Rule 32 proceeding. The Court finds Arido-Sorro has failed

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to demonstrate he was prejudiced by Rule 32 counsel’s alleged deficiency. Further, the

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Court finds Arido-Sorro has not shown cause and prejudice or actual innocence resulting in

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a miscarriage of justice would result from the lack of review. See Schlup v. Delo, 513 U.S.

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298, 321 (1995).

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Certificate of Appealability (“COA”)

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Rule 11(a), Rules Governing Section 2254 Cases, requires that in habeas cases the

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“district court must issue or deny a certificate of appealability when it enters a final order

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adverse to the applicant.” Such certificates are required in cases concerning detention arising

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“out of process issued by a State court”, or in a proceeding under 28 U.S.C. § 2255 attacking

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a federal criminal judgment or sentence. 28 U.S.C. § 2253(c)(1). Here, the Petition is

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brought pursuant to 28 U.S.C. § 2254, and challenges detention pursuant to a State court

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judgment. This Court must determine, therefore, if a COA shall issue.

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The standard for issuing a COA is whether the applicant has “made a substantial

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showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district

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court has rejected the constitutional claims on the merits, the showing required to satisfy §

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2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would

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find the district court's assessment of the constitutional claims debatable or wrong.” Slack

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v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “When the district

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court denies a habeas petition on procedural grounds without reaching the prisoner's

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underlying constitutional claim, a COA should issue when the prisoner shows, at least, that

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jurists of reason would find it debatable whether the petition states a valid claim of the denial

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of a constitutional right and that jurists of reason would find it debatable whether the district

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court was correct in its procedural ruling.” Id.; see also Robbins v. Carey, 481 F.3d

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1143,1146-47 (9th Cir. 2007) (failure to object to magistrate judge’s conclusions does not

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automatically waive appellate challenge) In the certificate, the Court must indicate which

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specific issues satisfy the showing. See 28 U.S.C. § 2253(c)(3).

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The Court finds that jurists of reason would not find it debatable whether the Petition

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stated a valid claim of the denial of a constitutional right and the Court finds that jurists of

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reason would not find it debatable whether the district court was correct in its procedural

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ruling. A COA shall not issue as to Arido-Sorro’s claims.

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Any further request for a COA must be addressed to the Court of Appeals. See Fed.
R.App. P. 22(b); Ninth Circuit R. 22-1.

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Accordingly, IT IS ORDERED:

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1.

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The Rule 6 Motion for Leave of Court to Expand the Record, Rule 7(a)(b)(c),

for Section 2254 Cases (Doc. 32) is DENIED;
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The Motion to Disclose Obstruction of Justice by States of Arizona Superior

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Court, Case No. CR 2015-2545 (Doc. 33), Motion to Vacate sentence (Legal and

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Constitutional Defenses) (Equal Protection U.S. Constitution) (AEDPA Standards) (Docs.

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34 and 35); Motion: Re-Disclosed the First was Missing 06/20/2015; Motion: Present

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Fabrication Arrest Report by Detective Ives #49854 T.P.D.; Motion: To Vacate with a

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Memorandum of Understanding (Doc. 36), Motion for Federal Question Jurisdiction

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Prosecution – Perjury (Doc. 38); Motion for Federal Question – Obstruction of Justice or

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Conspiracy (Doc. 39); Motion for Federal Question Jurisdiction - Privacy (Doc. 40); Motion:

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Brady Violation; Motion: Request Rule 4A Search and Seizure (3)(e)(a), in Accordance with

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Rule 4A; Motion: Vacate Sentence (Doc. 41); Motion for Federal Question Fraudulent

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Concealment (Brady Violation) (Doc. 42); Motion for Federal Question Right to Remain

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Silent 5th and 14th (Doc. 43); Motion to Support of Habeas Corpus Relief, and; Motion

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Vacate Conviction in Release (Doc. 44) are DENIED.

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Pursuant to the Request for Clarification Status, Rule 16.2(b)(4)(C) LRCiv

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(Doc. 45) the Court accepts the submission of the documents in support of Arido-Sorro's

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habeas petition.

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The Motion for Judicial Notice – Complete and Total Denial of Natural Justice

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(Doc. 47) and a Motion for Objections Recommendation for Magistrate Judge (Doc. 48),

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accepted as Arido-Sorro’s Objection to the R & R, are OVERRULED.

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The Report and Recommendation (Doc. 46) is ADOPTED;

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Arido-Sorro’s Amended Petition under 28 U.S.C. § 2254 for a Writ of Habeas

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Corpus by a Person in State Custody (Doc. 10) is DENIED;
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The Clerk of the Court shall enter judgment and shall then close its file in this

matter, and;.
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A Certificate of Appealability shall not issue in this case.

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DATED this 7th day of January, 2020.

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