United States District Court, D. Arizona
David G. Campbell United States District Judge
Petitioner Justin Menendez filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Doc. 1. On October 20, 2015, Magistrate Judge Metcalf issued a Report and Recommendation (“R&R”) recommending that the Petition be denied. Doc. 14 at 48. Petitioner objected to the R&R (Doc. 15) and Respondents filed a response (Doc. 16). For the reasons that follow, the Court will deny Petitioner’s objections and accept Judge Metcalf’s recommendations in full.
On November 15, 2006, detectives placed Petitioner under surveillance. Doc. 14 at 1. That night and into the morning of November 16th, detectives witnessed Petitioner, who was wearing dark clothing and dark gloves, and an accomplice, make several trips between his house and a nearby unoccupied residence. Id. at 1-2. While the two individuals were at the unoccupied residence, “detectives heard a drill-like noise, several ‘loud bangs, ’ and then ‘smaller banging.’” Id. at 2. Each time the two men returned to Petitioner’s house, detectives examined the unoccupied residence and noticed progressive damage. Id. After Petitioner’s final visit, detectives observed pry marks near the lower door hinge and a broken portion of the side garage door lying on the floor. Id. Later that night, police conducted a traffic stop, arrested Petitioner, searched his vehicle, and found a pair of black gloves, a flathead screwdriver, and a flashlight. Id.
On November 24, 2006, Petitioner was indicted in Maricopa County Superior Court on charges of attempted burglary in the second degree and possession of burglary tools. Id. Prior to trial, the court granted Petitioner’s unopposed motion in limine to preclude, among other things, (1) any testimony regarding the police placing Petitioner under surveillance because they suspected he was a career burglar, (2) Petitioner’s admissions that he was a career burglar, and (3) any testimony relating to another recent burglary involving Petitioner. Id. A jury convicted Petitioner on both charges. Id. The trial court sentenced Petitioner to concurrent terms of 15 years for attempted burglary in the second degree and 5.75 years for possession of burglary tools. Id.
Petitioner appealed his conviction to the Arizona Court of Appeals. Finding no viable issue for appeal, Petitioner’s counsel filed an Anders brief that included eleven claims Petitioner wished to present. Id. at 3. Petitioner subsequently filed a supplemental opening brief, arguing that the trial court also erred by: (1) admitting testimony addressing detectives’ surveillance of Petitioner, (2) denying a jury instruction to clarify this testimony, and (3) denying Petitioner’s motions to acquit. Id. The Court of Appeals affirmed the conviction in a memorandum decision “addressing claims regarding insufficient evidence, withholding of exculpatory information, and denial of clarifying jury instruction, and declining to address a claim of ineffective assistance of counsel.” Id. The Court of Appeals also conducted an independent review of the record and found no reversible error. Id.
Petitioner sought review by the Arizona Supreme Court, and on November 8, 2010, the court summarily denied his request. Id. Petitioner subsequently pursued post-conviction relief. The Arizona Court of Appeals issued a memorandum decision granting review of his petition but denying relief because all of Petitioner’s claims were either raised or could have been raised on appeal. Id. at 3-4. Petitioner did not seek further review. Id. at 4.
Petitioner’s federal habeas petition raises six grounds for relief. See Doc. 1 at 7-20. In his R&R, Judge Metcalf concluded that “Petitioner’s state remedies were adequately exhausted, but his claims are without merit.” Doc. 14 at 48. Judge Metcalf recommended that the Petition be denied. Id. Judge Metcalf also recommended that “to the extent that the Court adopts this [R&R] as to the Petition, a certificate of appealability should be denied.” Id. at 49.
II. Legal Standard.
A party may file specific, written objections to an R&R within 14 days of being served with a copy of it. Rules Governing Section 2254 Cases 8(b) (“Section 2254 Rules”); see also Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). The Court must undertake a de novo review of those portions of the R&R to which specific objections are made. Id.; Thomas v. Arn, 474 U.S. 140, 149 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). The Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. Section 2254 Rules 8(b); see also Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1)(C).
Petitioner objected to Judge Metcalf’s findings that Petitioner’s grounds one, four, five, and six are without merit. Because Petitioner did not object to Judge Metcalf’s findings as to grounds two and three, the Court has no duty to review these grounds. Section 2254 Rules 8(b); see also Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1)(C); Thomas, 474 U.S. at 149-50; Reyna-Tapia, 328 F.3d at 1121. Respondents argue that Petitioner’s objections to the R&R are untimely and therefore should not be considered. The Court will address each argument below, beginning with Respondents’ timeliness argument. / / /
A. Timeliness of Petitioner’s Objections.
Respondents argue that Petitioner’s objections are untimely and should not be considered “unless Petitioner can prove that they are timely.” Doc. 16 at 2-3. A party wishing to object to a magistrate judge’s R&R must file his objections within 14 days of being served with a copy of it. Section 2254 Rules 8(b); see also Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). Judge Metcalf filed his R&R on October 20, 2015. Doc. 14 at 50. The record does not reflect when Petitioner was actually served with the R&R. Although he did not file his objections until November 16, 2015, Petitioner indicated that they were “submitted” on November 12, 2015. Doc. 15 at 9. Because the 14-day objection period is triggered by the R&R’s service, rather than its filing, the Court cannot conclude that Petitioner’s objections are untimely. ...