United States District Court, D. Arizona
CINDY K. JORGENSON, District Judge.
On December 5, 2014, Magistrate Judge Leslie A. Bowman issued a Report and Recommendation (Doc. 20) in which she recommended that the Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody filed by Donald William Simms, II ("Simms") be dismissed. The magistrate judge advised the parties that written objections to the Report and Recommendation were to be filed within fourteen days of service of a copy of the Report and Recommendation pursuant to 28 U.S.C. § 636(b).
Simms filed an Objection (Doc. 22). Pursuant to the January 29, 2015, Order of this Court, Respondent has filed a Response (Doc. 26). Additionally, Simms has filed a Request to File Reply and Reply to Respondent Response (Doc. 27).
Request to File Reply and Reply to Respondent Response (Doc. 27)
The Court accepts the Reply filed by Simms.
Simms asserts the Court has granted Respondent another bite at the apple after Respondent disregarded the magistrate judge's order to file a Response to the Objection within 14 days of the filing of the Objection. However, the applicable statute states that this Court may "receive further evidence[.]" 28 U.S.C. § 636(b)(1). Additionally, the local rule that addresses motions, objections, responses, and replies recognizes the authority of the Court to issue non-standard orders regarding briefing. See LRCiv 7.2; see also Seismic Reservoir 2020, Inc. v. Paulsson, ___ F.3d ___, 2015 WL 1883388 (9th Cir. 2015) (recognizing without disapproval the district court's request for additional briefing). The Court will consider the Response to the Objection.
Report and Recommendation
This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). Further, under 28 U.S.C. § 636(b)(1), if a party makes a timely objection to a magistrate judge's recommendation, then this Court is required to "make a de novo determination of those portions of the [report and recommendation] to which objection is made." The statute does not "require  some lesser review by [this Court] when no objections are filed." Thomas v. Arn, 474 U.S. 140, 149-50, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Rather, this Court is not required to conduct "any review at all... of any issue that is not the subject of an objection." Id. at 149.
The magistrate judge determined Simms was not "in custody" pursuant to the "the conviction or sentence under attack at the time his petition [was] filed." Maleng v. Cook, 490 U.S. 488, 490-91 (1989).
Simms' Objections to the Report and Recommendation
Simms asserts he is in custody for his conviction in Arizona case number CR-20122055, which was enhanced by the invalid convictions in Arizona case numbers CR-66597 and CR-20001137. In asserting his convictions are invalid, Simms asserts he has newly discovered evidence that his attorney in CR-66597 failed to advise him of a plea offer made by the State of Arizona. Simms asserts the newly discovered evidence establishes he received ineffective assistance of counsel. Simms also asserts that his due process rights were violated in his Arizona Rule 32 proceeding.
Simms does not appear to dispute the conclusion of the magistrate judge that the general rule is that "[h]abeas corpus... may not be used to collaterally attack an expired conviction that was used to enhance the sentence under review." Report and Recommendation, p. 4 ( citing Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394, 402, 121 S.Ct. 1567, 1573 (2001). However, Simms asserts his petition should be granted under the faultless exception as discussed in Lackawanna County and Durbin v. California, 720 F.3d 1095 (2013). In Durbin, the Ninth Circuit stated:
We therefore hold that when a defendant cannot be faulted for failing to obtain timely review of a constitutional challenge to an expired prior conviction, and that conviction is used to enhance his sentence for a later offense, he may challenge the enhanced sentence under § 2254 ...