Cordova #221651 v. Shinn et al

Filing 38

ORDER ADOPTING United States Magistrate Judge Ferraro's 29 REPORT AND RECOMMENDATION in its entirety. Petitioner's objections are overruled and rejected. Petitioner's § 2254 1 habeas petition is DENIED and this case is DISMISS ED with prejudice. Petitioner's 35 Renewed Motion for Appointment of Counsel is DENIED. Petitioner's 36 Motion to Expand the Record is DENIED. Petitioner's 37 Motion to Release on Own Recognizance or Surety is DENIED. A Certificate of Appealability is denied and shall not issue. The Clerk of the Court shall enter judgment and close the file in this case. Signed by Judge Scott H Rash on 9/8/21.(BAC)

Case 4:20-cv-00163-SHR Document 38 Filed 09/08/21 Page 1 of 8

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Matthew Alejano Cordova,

No. CV-20-00163-TUC-SHR

Petitioner,

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v.

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Order
Adopting
Report
and
Recommendation and Denying Other
Motions

David Shinn, et al.,

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Respondents.

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Pending before the Court is a Report and Recommendation (“R&R”) (Doc. 29)
issued by United States Magistrate Judge D. Thomas Ferraro that recommends denying
Petitioner’s habeas Amended Petition (“Petition”) (Doc. 6) filed pursuant to 28 U.S.C.
§ 2254. The Court has reviewed the record, including Petitioner’s objections (Doc. 30)
and Respondents’ response (Doc. 33),1

and concludes Magistrate Judge Ferraro’s

recommendations are not clearly erroneous, and they are adopted.
§ 636(b)(1); Fed. R. Civ. P. 72.

See 28 U.S.C.

Petitioner has also filed a “Renewed Motion for

Appointment of Counsel “ (Doc. 35), a “Motion to Expand the Record Pursuant to Habeas
Rule 7 (Hearing Requested)” (Doc. 36), and a “Motion to Release on Own Recognizance

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Petitioner filed a reply to Respondents’ response (Doc. 34), despite Judge Ferraro’s
R&R specifically ordering that “[n]o reply brief shall be filed on objections unless leave is
granted by the district court.” Petitioner did not seek leave to file his reply; accordingly,
the Court will not consider it. See Fed. R. Civ. P. 72(b)(2) (providing that petitioner may
object to R&R and respondent may respond, but not providing reply to such response); see
also 28 U.S.C. § 636(b)(1).
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or Surety (District Judge Hearing Requested)” (Doc. 37). The Court will deny those
motions.
Report and Recommendation
As a threshold matter, as to any new evidence, arguments, and issues that were not
timely and properly raised before United States Magistrate Judge Ferraro, the Court
exercises its discretion to not consider those matters and considers them waived. See
United States v. Howell, 231 F.3d 615, 621-623 (9th Cir. 2000). In Howell, the United
States Court of Appeals for the Ninth Circuit explained:

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[A] district court has discretion, but is not required, to consider
evidence presented for the first time in a party’s objection to a
magistrate judge’s recommendation.
....
[I]n providing for a de novo determination rather than
de novo hearing, Congress intended to permit whatever
reliance a district judge, in the exercise of sound judicial
discretion, chose to place on a magistrate judge's proposed
findings and recommendations. . . . The magistrate judge
system was designed to alleviate the workload of district
courts. To require a district court to consider evidence not
previously presented to the magistrate judge would effectively
nullify the magistrate judge’s consideration of the matter and
would not help to relieve the workload of the district court.
Systemic efficiencies would be frustrated and the magistrate
judge’s role reduced to that of a mere dress rehearser if a party
were allowed to feint and weave at the initial hearing, and save
its knockout punch for the second round. Equally important,
requiring the district court to hear evidence not previously
presented to the magistrate judge might encourage
sandbagging. [I]t would be fundamentally unfair to permit a
litigant to set its case in motion before the magistrate, wait to
see which way the wind was blowing, and—having received
an unfavorable recommendation—shift gears before the
district judge.

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Id. (internal citations and quotations omitted); see also United States v. Reyna-Tapia, 328

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F.3d 1114, 1122 (9th Cir. 2003) (“Finally, it merits re-emphasis that the underlying purpose
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of the Federal Magistrates Act is to improve the effective administration of justice.”).2
As to the objections filed by Petitioner, the Court has conducted a de novo review
of the record. See 28 U.S.C. § 636(b)(1)(C) (“Within fourteen days after being served with
[the Report and Recommendation], any party may serve and file written objections to such
proposed findings and recommendations as provided by rules of court. A judge of the court
shall make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made. A judge of the court may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge. The judge may also receive further evidence or recommit the matter to
the magistrate judge with instructions.”).
In addition to reviewing the R&R and any objections and responsive briefing

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thereto, the Court’s de novo review of the record includes review of the record and

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authority before United States Magistrate Judge Ferraro which led to the R&R in this case.

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Upon de novo review of the record and authority herein, the Court finds Petitioner’s

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objections to be without merit, rejects those objections, and adopts United States

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Magistrate Judge Ferraro’s R&R in its entirety. See, e.g., United States v. Rodriguez, 888

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F.2d 519, 522 (7th Cir. 1989) (“Rodriguez is entitled by statute to de novo review of the

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subject. Under Raddatz [447 U.S. 667 (1980)] the court may provide this on the record

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compiled by the magistrate. Rodriguez treats adoption of the magistrate’s report as a sign

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that he has not received his due. Yet we see no reason to infer abdication from adoption.

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On occasion this court affirms a judgment on the basis of the district court’s opinion.

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Affirming by adoption does not imply that we have neglected our duties; it means, rather,

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that after independent review we came to the same conclusions as the district judge for the

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reasons that judge gave, rendering further explanation otiose. When the district judge, after

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Assuming, arguendo, that such matters were not subject to waiver, the Court (in
the alternative) has nonetheless conducted a de novo review, and upon review of the record
and authority herein, rejects these issues and adopts the R&R in its entirety.
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reviewing the record in the light of the objections to the report, reaches the magistrate’s
conclusions for the magistrate’s reasons, it makes sense to adopt the report, sparing
everyone another round of paper.”); see also Bratcher v. Bray-Doyle Independent School
Dist. No. 42 of Stephens County, Okl., 8 F.3d 722, 724 (10th Cir. 1993) (“De novo review
is statutorily and constitutionally required when written objections to a magistrate’s report
are timely filed with the district court . . . . The district court’s duty in this regard is
satisfied only by considering the actual testimony [or other relevant evidence in the record],
and not by merely reviewing the magistrate’s report and recommendations. On the other
hand, we presume the district court knew of these requirements, so the express references
to de novo review in its order must be taken to mean it properly considered the pertinent
portions of the record, absent some clear indication otherwise. Plaintiff contends . . . the

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district court's [terse] order indicates the exercise of less than de novo review. . . .

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[However,] brevity does not warrant look[ing] behind a district court’s express statement

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that it engaged in a de novo review of the record.” (internal citations and quotations

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omitted).); Brunig v. Clark, 560 F.3d 292, 295 (5th Cir. 2009) (“Brunig also claims that

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the district court judge did not review the magistrate’s report de novo . . . . There is no

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evidence that the district court did not conduct a de novo review. Without any evidence to

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the contrary . . . we will not assume that the district court did not conduct the proper

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review.”); Gonzales-Perez v. Harper, 241 F.3d 633 (8th Cir. 2001) (“When a party timely

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objects to a magistrate judge’s report and recommendation, the district court is required to

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make a de novo review of the record related to the objections, which requires more than

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merely reviewing the report and recommendation. This court presumes that the district

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court properly performs its review and will affirm the district court’s approval of the

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magistrate’s recommendation absent evidence to the contrary. The burden is on the

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challenger to make a prima facie case that de novo review was not had.” (internal citations

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and quotations omitted)); Murphy v. Int’l Bus. Machines Corp., 23 F.3d 719, 722 (2nd Cir.

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1994) (“We . . . reject Murphy’s procedural challenges to the granting of summary

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judgment . . . . Murphy’s contention that the district judge did not properly consider her
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objections to the magistrate judge's report . . . lacks merit. The judge’s brief order
mentioned that objections had been made and overruled. We do not construe the brevity
of the order as an indication that the objections were not given due consideration, especially
in light of the correctness of that report and the evident lack of merit in Murphy’s
objections.”).3
Before Petitioner can appeal this Court's judgment, a certificate of appealability
must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b)(1). The district court that
rendered a judgment denying the petition made pursuant to § 2254 must either issue a
certificate of appealability or state why a certificate should not issue. See id. Additionally,

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§ 2253(c)(2) provides that a certificate may issue “only if the applicant has made a

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substantial showing of the denial of a constitutional right.” In the certificate, the court must

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indicate which specific issues satisfy this showing. See § 2253(c)(3). A substantial

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See also Pinkston v. Madry, 440 F.3d 879, 893-94 (7th Cir. 2006) (the district
court’s assurance, in a written order, that the court has complied with the de novo review
requirements of the statute in reviewing the magistrate judge’s proposed findings and
recommendation is sufficient, in all but the most extraordinary of cases, to resist assault on
appeal; emphasizing that “[i]t is clear that Pinkston’s argument in this regard is nothing
more than a collateral attack on the magistrate’s reasoning, masquerading as an assault on
the district court’s entirely acceptable decision to adopt the magistrate’s opinion instead of
conducting an evidentiary hearing on its own. However, the law requires the district judge
to do no such thing.”); Garcia v. City of Albuquerque, 232 F.3d 760 (10th Cir. 2000) (“The
district court's order is terse . . . However, neither 28 U.S.C. § 636(b)(1) nor Fed. R. Civ.
P. 72(b) requires the district court to make any specific findings; the district court must
merely conduct a de novo review of the record . . . It is common practice among district
judges . . . to [issue a terse order stating that it conducted a de novo review as to
objections] . . . and adopt the magistrate judges’ recommended dispositions when they find
that magistrate judges have dealt with the issues fully and accurately and that they could
add little of value to that analysis. We cannot interpret the district court’s [terse] statement
as establishing that it failed to perform the required de novo review. We hold that although
the district court's decision is terse, this is insufficient to demonstrate that the court failed
to review the magistrate's recommendation de novo.” (internal citations and quotations
omitted)); Goffman v. Gross, 59 F.3d 668, 671 (7th Cir. 1995) (“The district court is
required to conduct a de novo determination of those portions of the magistrate judge’s
report and recommendations to which objections have been filed. But this de novo
determination is not the same as a de novo hearing. . . . [I]f following a review of the
record the district court is satisfied with the magistrate judge’s findings and
recommendations it may in its discretion treat those findings and recommendations as its
own.”).

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showing is made when the resolution of an issue of appeal is debatable among reasonable
jurists, if courts could resolve the issues differently, or if the issue deserves further
proceedings. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). Upon review of the
record in light of the standards for granting a certificate of appealability, the Court
concludes that a certificate shall not issue as the resolution of the petition is not debatable
among reasonable jurists and does not merit further proceedings.

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“Renewed Motion for Appointment of Counsel”

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Petitioner’s Renewed Motion for Appointment of Counsel is substantively a motion

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for reconsideration of Judge Ferraro’s June 16, 2021 Order (Doc. 28) denying his “Motion

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for Appointment of Counsel and/or an Investigator” (Doc. 26). Although the Federal Rules

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of Civil Procedure do not expressly allow for motions to reconsider, the Court will consider

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this a motion under Rule 60(b). Under Rule 60(b), a party may seek relief from a final

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judgment, order, or proceeding for the following reasons:

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(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new trial
under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it
is based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Rule 60(b) does not allow relief from an order simply because a party disagrees with the
Court’s reasoning. See United States v. Williams, 674 F.2d 310, 312 (4th Cir. 1982) (“Rule
60(b) does not authorize a motion merely for reconsideration of a legal issue.”). Petitioner
has not demonstrated any of the above reasons support reconsidering Judge Ferraro’s order
denying his motion. Indeed, Judge Ferraro correctly noted the Petition was fully briefed

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four months before Petitioner requested counsel.4 Therefore, Petitioner was able to
articulate his arguments and did not demonstrate justice required the appointment of
counsel.
Nonetheless, to the extent Petitioner’s instant motion could be interpreted as
requesting the Court to appoint counsel and/or an investigator at this stage of litigation, his
request is moot, given the Court’s disposition of his Petition, and the Report and
Recommendation, and Petitioner’s Objections. Therefore, this motion (Doc. 35) is denied.

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“Motion to Expand the Record Pursuant to Habeas Rule 7”

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Petitioner requests that the Court “expand the record with the proffered evidence

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pertaining to specific claims” pursuant to Rule 7 of the Rules Governing § 2254 Cases
(“Habeas Rules”). (Doc. 36 at 1.) He also appears to request an evidentiary hearing

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pursuant to Habeas Rule 8. (Id.) Rule 7 provides: “If the petition is not dismissed, the

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judge may direct the parties to expand the record by submitting additional materials relating

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to the petition. The judge may require that these materials be authenticated.” And, Rule 8

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provides: “If the petition is not dismissed, the judge must review the answer, any transcripts

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and records of state-court proceedings, and any materials submitted under Rule 7 to

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determine whether an evidentiary hearing is warranted.” That is, both Rules 7 and 8 allow

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for expansion of the record and a hearing if the habeas petition is not dismissed. For the

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reasons explained above, the Petition in this case is dismissed. Therefore, the Court denies

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Petitioner’s requests to expand the record and set a hearing.

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“Motion to Release on Own Recognizance or Surety”

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Petitioner “requests that this Court order[] Petitioner’s release on his own

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recognizance or surety” and requests a hearing. (Doc. 37 at 1.) Given the dismissal of the

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Petition, this motion is also denied.

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Accordingly, IT IS HEREBY ORDERED as follows:

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Petitioner’s first request for appointment of counsel was before Judge Rosemary
Márquez, and she properly denied that request as premature.
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(1) United States Magistrate Judge Ferraro’s Report and Recommendation (Doc. 29) is
accepted and adopted in its entirety.
(2) Petitioner’s objections are overruled and rejected.
(3) Petitioner’s § 2254 habeas petition (Doc. 1) is DENIED and this case is
DISMISSED with prejudice.
(4) Petitioner’s Renewed Motion for Appointment of Counsel (Doc. 35) is DENIED.

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(5) Petitioner’s Motion to Expand the Record (Doc. 36) is DENIED.

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(6) Petitioner’s Motion to Release on Own Recognizance or Surety (Doc. 37) is

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DENIED.
(7) A Certificate of Appealability is denied and shall not issue.
(8) The Clerk of the Court shall enter judgment and close the file in this case.
Dated this 8th day of September, 2021.

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