Salas 295874 v. Shinn ( 2021 )

1 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 Ruperto Bernave Deleon Salas, No. CV-18-04265-PHX-DJH 11 Petitioner, ORDER 12 v. 13 Attorney General of the State of Arizona, et 14 al., 15 Respondents. 16 Before the Court is a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 17 2254 (Doc. 1) to which Respondents filed a Response (Doc. 12) and Petitioner filed a Reply 18 (Doc. 13). Following a thorough and comprehensive analysis, Magistrate Judge John Z. 19 Boyle recommended denial of and dismissal with prejudice of the Petition. (Doc. 14). 20 Petitioner filed timely Objections (Doc. 15), to which Respondents Replied (Doc. 16). 21 I. Background 22 Petitioner pled guilty and was convicted of two counts of child molestation and one 23 count of attempted child molestation in Maricopa County Superior Court. Pursuant to a 24 plea agreement, he was sentenced to two 17.5-year terms of imprisonment, to be served 25 consecutively, and a term of lifetime probation to commence upon completion of the prison 26 sentences. Following his sentencing, Petitioner filed a notice of post-conviction relief and 27 an attorney was appointed to represent him. The court-appointed attorney subsequently 28 filed a notice of completion of post-conviction review, concluding that he could find no 1 colorable claim to raise. Petitioner then filed a pro per PCR Petition, which he submitted 2 with the assistance of another prisoner. The PCR dismissed that Petition on the grounds 3 that it was an unauthorized practice of law under the Arizona Supreme Court rules for an 4 unlicensed prisoner to represent another prisoner. Petitioner sought review of that 5 dismissal. The Court of Appeals ultimately reversed the dismissal, reinstated Petitioner’s 6 PCR Petition, and ordered the State to respond. After the State filed its Response (Doc. 7 12-2 at Ex. W), Petitioner then filed a “Motion Requesting Remedy from an ‘Illegal’ 8 Sentence with Extraordinary Circumstances; Which Would Require Remand and 9 Resentence in Part.” (Doc. 12-2, at Ex. X). 10 II. R&R 11 The R&R accurately identifies the four claims which the Petition raises: (1) 12 ineffective assistance of counsel; (2) prosecutorial misconduct; (3) judicial misconduct; 13 and (4) violation Article II of the Arizona Constitution guaranteeing “the right to appeal in 14 all cases” to the defendant. (Doc. 14 at 5-6). The Magistrate Judge first found that Petitioner had failed to present Grounds One and Two to the Arizona Court of Appeals in 15 his petition for review, and because Arizona’s preclusion and time-bar rules would render 16 a return to state court futile, he found them to be technically exhausted but procedurally 17 defaulted. (Id. at 8). He next found that the basis of Ground Three had been dismissed as 18 inappropriately-filed in a parallel appellate proceeding, and as such was unexhausted and 19 procedurally defaulted. (Id.) Finally, he found that Ground Four was unexhausted. (Id.) 20 Resolving the claims as such, the Magistrate Judge concluded that Petitioner was not 21 entitled to habeas corpus relief, and recommended denial of his Petition and dismissal with 22 prejudice. The parties were advised by the Magistrate Judge that they had “fourteen (14) 23 days from the date of service of a copy of [the R&R] within which to file specific written 24 objections with the Court.” (Id. at 9) (citing 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), 25 Federal Rules of Civil Procedure) (emphasis added). 26 III. Standard of Review 27 This Court must “make a de novo determination of those portions of the report or 28 specified proposed findings or recommendations to which” a Petitioner objects. 28 U.S.C. 1 § 636(b)(1)(C); see also Fed.R.Civ.P. 72(b)(3) (“The district judge must determine de novo 2 any part of the magistrate judge's disposition that has been properly objected to.”); United 3 States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (same). Further, this Court 4 “may accept, reject, or modify, in whole or in part, the findings or recommendations made 5 by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(3). At the same 6 time, however, the relevant provision of the Federal Magistrates Act, 28 U.S.C. § 7 636(b)(1)(C), “does not on its face require any review at all . . . of any issue that is not the 8 subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1989) (emphasis added); see 9 also Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005) (“Of course, de novo 10 review of a R & R is only required when an objection is made to the R & R, [Reyna–Tapia,] 11 328 F.3d [at] 1121. . . (“Neither the Constitution nor the [Federal Magistrates Act] requires 12 a district judge to review, de novo, findings and recommendations that the parties 13 themselves accept as correct”)[.]”). Likewise, it is well-settled that “‘failure to object to a 14 magistrate judge's factual findings waives the right to challenge those findings [,]’” Bastidas v. Chappell, 791 F.3d 1155, 1159 (9th Cir. 2015) (quoting Miranda v. Anchondo, 15 684 F.3d 844, 848 (9th Cir. 2012) (internal quotation marks omitted) (footnote omitted)), 16 as Magistrate Judge Boyle advised the parties herein. (Doc. 15) (citation omitted). Finally, 17 “[a]lthough the Ninth Circuit has not yet ruled on the matter, other circuits and district 18 courts within the Ninth Circuit have held when a petitioner raises a general objection to an 19 R&R, rather than specific objections, the Court is relieved of any obligation to review it.” 20 Martin v. Ryan, 2014 WL 5432133, at *2 (D. Ariz. 2014) (citing See, e.g., Warling v. Ryan, 21 2013 WL 5276367, at *2 (D. Ariz. 2013) (“[A] general objection ‘has the same effect as 22 would a failure to object.’ ”)); Gutierrez v. Flannican, 2006 WL 2816599 (D. Ariz. 2006) 23 (citing Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984); Lockert v. Faulkner, 843 F.2d 1015, 24 1019 (7th Cir. 1988); Howard v. Sec. of Health and Human Servs., 932 F.2d 505, 509 (6th 25 Cir. 1991); United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996)). 26 IV. Petitioner's Objections and Discussion 27 Petitioner timely filed his objections, broadly asserting that his claims are 28 unexhausted and defaulted through “no fault of his own.” (Doc. 15 at 2). He first contends 1 that the State did not file a response to his PCR Petition after the Court of Appeals 2 reinstated his Petition on remand, and thus the State, not Petitioner, is in default. (Doc. 15 3 at 7-8). This fact is belied by the record and this objection is summarily overruled. (See 4 Doc. 12-2, Ex. W). 5 Relatedly, Petitioner also says that the PCR court never ruled on his “Motion 6 Requesting Remedy From an ‘Illegal’ Sentence with Extraordinary Circumstances.” (Doc. 7 15 at 8). He says Respondents and the Magistrate Judge improperly characterize this filing 8 as his Reply to his PCR Petition, when he really “was making a submittal anew for post- 9 conviction relief.” (Doc. 15 at 8). He said he raised new issues in his “Motion Requesting 10 Remedy From an ‘Illegal’ Sentence with Extraordinary Circumstances,” including an 11 additional ground of ineffective assistance of both trial and PCR counsel, to “ensure that 12 the state courts…have the first opportunity to address alleged violations of a state 13 prisoner’s federal rights.” (Id. at 9). Even assuming, as Petitioner suggests, that this filing 14 could have been filed as a successive PCR Petition under Arizona law, and ignoring the fact that the trial court addressed and dismissed each of the new claims asserted in his 15 “Motion Requesting Remedy From an ‘Illegal’ Sentence with Extraordinary 16 Circumstances” (see Doc. 12-2, Ex. Y), Petitioner cannot establish that he fairly presented 17 these issues for appellate review. Thus, the Arizona courts were not afforded “one 18 complete round of the State’s established appellate review process.” O’Sullivan v. 19 Boerckel, 526 U.S. 838, 845 (1999). Although the record reflects that Petitioner filed a 20 “two-page ‘Notice for Filing Petition for Review in the Appeals Court’” with the PCR 21 court (Doc. 12-3, Ex. HH at 6), and subsequently asked for and was granted an extension 22 of time to file a “‘Petition for Review’ with [the Arizona Court of Appeals]” (Doc. 12-2, 23 Ex. FF at 137), Petitioner did not in fact file a petition for review. Accordingly, on August 24 16, 2018, the Arizona Court of Appeals denied review. (Doc. 12-3, Ex. HH at 6). These 25 claims are therefore unexhausted. As stated by the Magistrate Judge, and uncontroverted 26 by Petitioner, Arizona’s preclusion and time-bar rules would render a return to state court 27 to exhaust these claims futile, and accordingly, they are “technically exhausted, but 28 procedurally defaulted.” (Doc. 14 at 8). This objection is thus also overruled. I] v. Conclusion 2 Accordingly, 3 IT IS ORDERED that Magistrate Judge Boyle’s Report and Recommendation 4|| (Doc. 14) is ACCEPTED and ADOPTED as the Order of this Court. 5 IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus pursuant || to 28 U.S.C. § 2254 (Doc. 1) is DENIED and DISMISSED WITH PREJUDICE. 7 IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing 8 || Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis 9 || on appeal are DENIED because dismissal of the Petitioner is justified by a plain procedural 10 || bar and reasonable jurists would not find the ruling debatable. 11 IT IS FINALLY ORDERED that the Clerk of the Court shall terminate this action 12 || and enter judgment accordingly. 13 Dated this 2nd day of April, 2021. 14 15 Jf = et norable' Diang4. Huretewa 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28 -5-