United States District Court, D. Arizona
DAVID C. BURY, District Judge.
This matter was referred to Magistrate Judge D. Thomas Ferraro, pursuant to Rules of Practice for the United States District Court, District of Arizona (Local Rules), Rule (Civil) 72.1(a). On March 27, 2015, he issued a Report and Recommendation (R&R), recommending that the Court dismiss the Petition for Writ of Habeas Corpus.
Gibson's habeas Petition challenges his incarceration related to his conviction by a jury in the Superior Court of Pima County on two counts of armed robbery, two counts of aggravated assault and one count of aggravated robbery. He was sentenced on June 14, 2010, to concurrent sentences, the longest of which was 7.5 years.
On direct appeal, counsel filed a brief based on Anders v. California, 386 U.S. 738 (1967). An Anders brief explains to the appellate court why counsel has concluded after a conscientious review of the record that an appeal is wholly without merit and why counsel should be given permission to withdraw. The Anders brief must also refer to anything in the record that might arguably support the appeal. United States v. Griffy, 894 F.2d 561, 562 (1990) (citing Anders, 383 U.S. at 744.) The Arizona Court of Appeals gave Petitioner Gibson the opportunity to file a supplemental pro se brief, which he failed to do. The Arizona Court of Appeals found substantial evidence supported his convictions and affirmed the sentences as lawful.
On September 14, 2010, Gibson filed a Notice of Post Conviction Relief (PCR). Again appointed counsel informed the Court there were no meritorious issues, and Petitioner was afforded an opportunity to file the PCR pro se, which he did. On December 14, 2011, the PCR was denied in part because some claims were precluded and in part some claims were denied on the merits.
On January 12, 2012, Gibson requested an extension for filing a petition for review, i.e., an appeal of the denied PCR petition. The court granted an extension to file the appeal until February 10, 2012. On January 18, 2012, Gibson requested an extension to file a motion for reconsideration from the denial of the PCR. The court granted an extension to file the motion for reconsideration until February 27, 2012.
Gibson filed for reconsideration on January 31, 2012. On February 1, the PCR court construed it as a motion for rehearing and dismissed it as untimely, pursuant to Rule 32.9 which requires a motion for reconsideration to be filed within 15 days after the ruling of the court. In that same order, the PCR court reaffirmed the February 10 deadline for him to file his appeal. Instead, Gibson filed a motion for correction, arguing that his motion for reconsideration was not untimely because he had been given until February 27 to file it. His request was denied. On March 26, 2012, Gibson filed the petition for review, which the court of appeals denied as untimely because it was not filed within the 30-day time limit. He requested reconsideration of the determination that the petition for review was untimely, and reconsideration was denied. Gibson subsequently filed a "Writ of Coram Nobis, Writ of Error, " which the superior court construed as a successive PCR petition and denied it. The appellate court granted review but denied relief. Gibson's petition for review to the Arizona Supreme Court was denied as untimely. (R&R (Doc. 24) at 3 (citations to the record omitted).
The Court repeats the above procedural record outlined in the R&R in even greater detail because Petitioner's Claim 1, while couched in terms of ineffective assistance of counsel (IAC) is really a continuation of his arguments that his PCR appeals were timely and he seeks to have his PCR proceedings reinstated. As noted by the Magistrate Judge, "alleged errors in the PCR process are not cognizable in a federal habeas corpus proceeding because they do not attack the lawfulness of a petitioner's detention." (R&R at 6 (citing Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989) (per curiam); Gerlaugh v. Stewart, 129 F.3d 1027, 1045 (9th Cir. 1997)). The Court agrees that Petitioner's Claim 1 is not a cognizable habeas claim.
Additionally, the Magistrate Judge recommended that his claim of ineffective assistance of counsel in Claim 2 be dismissed because he failed to support an assertion of actual innocence. The Magistrate Judge recommended that three of the ineffective assistance of counsel claims in Claim 3 be denied on the merits and two be denied on procedural grounds. He recommended that Claim 4 be denied because Petitioner makes only conclusory allegations and any claim of a due process violation while technically exhausted is procedurally defaulted. The Court accepts and adopts the Magistrate Judge's R&R as the findings of fact and conclusions of law of this Court and denies the Petition for Writ of Habeas Corpus.
STANDARD OF REVIEW
The duties of the district court in connection with a R&R by a Magistrate Judge are set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1). Where the parties object to a Report and Recommendation, "[a] judge of the [district] court shall make a de novo determination of those portions of the [R&R] to which objection is made.'" Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (quoting 28 U.S.C. § 636(b)(1)).
This Court's ruling is a de novo determination as to those portions of the R&R to which there are objections. 28 U.S.C. § 636(b)(1)(C); Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir.2003) ( en banc ). To the extent that no objection has been made, arguments to the contrary have been waived. Fed.R.Civ.P. 72; see 28 U.S.C. § 636(b)(1) (objections are waived if they are not filed within fourteen days of service of the R&R), see also McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980) (failure to object to Magistrate's report waives right to do so on appeal); Advisory Committee Notes to Fed.R.Civ.P. 72 (citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974) (when no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation)).
The parties were sent copies of the R&R and instructed that, pursuant to 28 U.S.C. § 636(b)(1), they had 14 days to file written objections. See also, Fed.R.Civ.P. 72 (party objecting to the recommended disposition has fourteen (14) days to file specific, written objections). The Court has considered the objection filed by the Petitioner, and the parties' ...