United States District Court, D. Arizona
A. Teilborg Senior United States District Judge.
before the Court is Petitioner’s Petition for Writ of
Habeas Corpus. Doc. 1. On October 21, 2015, the Magistrate
Judge to whom this case was assigned issued a Report and
Recommendation (R&R) recommending that the Petition be
denied. Doc. 21. After receiving many extensions of time,
Petitioner filed objections to the R&R on May 13, 2016.
Court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1). It is “clear
that the district judge must review the magistrate
judge’s findings and recommendations de novo if
objection is made, but not otherwise.” United
States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.
2003) (en banc) (emphasis in original); Schmidt v.
Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003)
(“Following Reyna-Tapia, this Court concludes
that de novo review of factual and legal issues is required
if objections are made, ‘but not
otherwise.’”); Klamath Siskiyou Wildlands
Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 1027, 1032
(9th Cir. 2009) (the district court “must review de
novo the portions of the [Magistrate Judge’s]
recommendations to which the parties object.”).
District courts are not required to conduct “any review
at all . . . of any issue that is not the subject of an
objection.” Thomas v. Arn, 474 U.S. 140, 149
(1985) (emphasis added); see also 28 U.S.C. §
636(b)(1) (“the court shall make a de novo
determination of those portions of the [report and
recommendation] to which objection is made.”). Thus,
this Court will review the portions of the R&R to which
Petitioner objected de novo.
in the Petition
R&R has identified 9 claims brought by Petitioner. The
Court will address each claim in turn
9-19, the R&R discusses the statute of limitations
applicable to federal habeas petitions. The Court adopts this
statement of the governing law.
R&R then applies the controlling law and concludes that
Claim 1 (which is based on a 1997 conviction) is untimely.
R&R at 11, 18. Petitioner objects citing the date his
post-conviction relief petition was denied as to his 2010
conviction and sentence. Objections at 7. Because the
expiration of the statute of limitations on the 2010
conviction does not control when the statute of limitations
expired on the 1997 conviction, Petitioner’s objection
is overruled. Accordingly, the Court accepts and adopts the
R&R’s conclusion that Claim 1 is barred by the
statute of limitations.
the R&R concludes that Claim 1 is barred by the second or
successive petition prohibition because Petitioner previously
filed a habeas petition in 2000. R&R at 30. Citing
Magwood v. Patterson, 561 U.S. 320 (2010),
Petitioner objects and argues that because he received a new
sentence, he is not barred by the second or successive
petition limits. Objections at 8-9. In Magwood, the
petitioner received habeas relief, was re-sentenced, then
filed another habeas petition challenging his re-sentencing.
Id. at 323-24. The Supreme Court concluded that
because the new habeas petition was the first challenge to
the judgment upon re-sentencing, it was not barred by the
second or successive petition limits. Id.
Petitioner has more than one conviction, not a new sentence
on a previous conviction. Petitioner challenged his 1997
conviction in his 2000 habeas petition. Petitioner cannot
avoid the successive petition bar by including challenges to
the 1997 conviction in a habeas petition challenging his 2010
conviction. Accordingly, the Court accepts and adopts the
R&R for this alternative reason, and relief on Claim 1 is
denied. See R&R at 19-23.
R&R concludes that part of Claim 2A is barred by the
statute of limitation. R&R at 18. The R&R further
concludes that part of Claim 2A is prohibited because it is a
successive petition. R&R at 21-23. The R&R also
concludes that a different part of Claim 2A (relating to the
2010 conviction) fails on the merits (R&R at 43).
reasons stated above, the Court accepts and adopts the
R&R’s conclusions that to the extent Claim 2A
attempts to challenge Petitioner’s 1997 conviction, it
is both untimely and prohibited as a second or successive
petition. Petitioner’s objections as to this portion of
the R&R on Claim 2A are overruled. See
Objections at 7-10.
the portion of Claim 2A that the R&R found both timely
and exhausted in the state courts (R&R at 35), the
R&R summarized Petitioner’s argument as follows:
Petitioner argues his due process rights were violated
because the 1997 sentence to lifetime probation was
unauthorized, only a 5 year term was permitted, that term ran
from the date of imposition and expired in 2002, and
therefore the court lacked jurisdiction to reinstate
Petitioner on ...