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Scott v. Ryan

United States District Court, D. Arizona

June 30, 2016

Bobby Joe Scott, Petitioner,
v.
Charles L Ryan, et al., Respondents.

          ORDER

          James A. Teilborg Senior United States District Judge.

         Pending 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. Doc. 29.

         This 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.

         Claims in the Petition

         The R&R has identified 9 claims brought by Petitioner. The Court will address each claim in turn

         Claim 1

         At page 9-19, the R&R discusses the statute of limitations applicable to federal habeas petitions. The Court adopts this statement of the governing law.

         The 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.

         Alternatively, 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.

         Here, 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.

         Claim 2A

         The 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).

         For the 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.

         As to 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 ...

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