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Stern v. Schriro

United States District Court, D. Arizona

September 20, 2016

Joseph Guy Stern, Petitioner,
Dora B Schriro, et al., Respondents.


          Honorable David C. Bury United States District Judge.

         This matter was referred to Magistrate Judge Jacqueline M. Rateau on August 19, 2015, pursuant to the Rules of Practice for the United States District Court, District of Arizona (Local Rules), Rule (Civil) 72.1(a). On August 2, 2016, Magistrate Judge Rateau issued a Report and Recommendation (R&R). She recommends that the Court dismiss the Petition with prejudice. Subsequent to the Magistrate Judge issuing her R&R, the Petitioner filed pro se “emergency” motions seeking the withdrawal of his attorney and leave to file additional material in support of his Petition. Petitioner has been, represented by counsel through the duration of this case in this court, in the court of appeals, and in the state court subsequent to its remand and stay here to exhaust his claims there.

         This Court appointed Brick Storts to serve as counsel for Petitioner on January 24, 2007, because Mr. Storts had represented him in his second Post-Conviction Petition and had done a good job. There is nothing in the record to suggest that Mr. Storts has not continued to do a good job representing the Petitioner, [1] except for Petitioner's complaints about trial strategies during the evidentiary hearing held in the state court. Petitioner accuses Mr. Stort's of knowingly suppressing material/exculpatory evidence when he refused to ask questions at the evidentiary hearing in the state proceeding, and therefore failed to establish that medical science related to “shaken-baby syndrome (SBS)” has changed. Petitioner also complains that his attorney, unbeknownst to him, entered into a false stipulation that the state evidentiary hearing was “a sufficient record for review, and the Petitioner received a full and fair hearing.” (Status Report (Doc. 187) at 2.)

         The evidentiary hearing was held May 21, 2012. Mr. Storts was persuasive on the question of new evidence. Petitioner attended the evidentiary hearing and, therefore, has known its alleged deficiencies since then. The Status Report was filed on April 14, 2014. Counsel for Petitioner would have kept him informed regarding the status of the case and consulted him about the means for obtaining his objectives. Arizona Rules of Professional Conduct, ER 1.4. The Court also notes that Petitioner would have received a copy of the Reply filed September 8, 2014, to the Response to the Supplemental Memorandum on Actual Innocence in Support of the Petition and a copy of the Supplemental Memorandum filed June 11, 2014. Both of these documents reflect the reliance in this case on the evidentiary record presented at the hearing in state court.

         The Court finds no explanation for why Petitioner waited until the Magistrate Judge issued the R&R on August 2, 2016, to complain about his attorney's performance in regard to these two matters-except perhaps because the R&R was unfavorable. The R&R is fully briefed and ready for disposition by the Court. Pursuant to the recommendation of the Magistrate Judge, the ruling on the R&R, not a trial, will resolve this case. Petitioner's motion to proceed pro se and to further brief his petition is untimely. Cf., LRCiv.83.3(b)(3) (no permission to withdraw after an action is set for trial, unless new attorney is, or client has made arrangement to be, prepared for trial).

         Before the Court will allow counsel to withdraw, it considers: (1) the reasons why withdrawal is sought; (2) the prejudice withdrawal may cause to other litigants; (3) the harm withdrawal might cause to the administration of justice; and (4) the degree to which withdrawal will delay the resolution of the case. Beard v. Shuttermart of Cal., Inc., 2008 WL 410694, at *2 (S.D. Cal. Feb. 13, 2008). Clearly granting Petitioner's emergency motions would delay resolution of the case and be highly prejudicial to the State. If the Court were to grant Petitioner's emergency motions, it would effectively reboot the case to its post-remand status. The Court finds there is no good cause to delay the administration of justice in this case.

         The Court will deny Petitioner's emergency motions. The Court accepts and adopts the Magistrate Judge's R&R as the findings of fact and conclusions of law of this Court and dismisses the Petition, with prejudice. Petitioner may proceed pro se on appeal in the event he files an appeal from this Order. The Court withdraws Brick Storts as counsel of record in this case; Petitioner is returned to pro se status.


         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 an R&R, “‘[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 10 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 objections filed by the Petitioner, and the parties' briefs considered by the Magistrate Judge in deciding whether or not to dismiss the Petition.


         The Petitioner objects to the Magistrate Judge's finding that he has not established his actual innocence because this case is not like Gimenez v. Ochoa, 821 F.3d 1136 (2016), where alleged new evidence was essentially just different opinions among experts, with other evidence in the record from which a reasonable juror could still conclude he was guilty of murder. Petitioner argues that the Magistrate Judge erroneously looked at whether sufficient evidence still existed in light of the new medical evidence when she should have considered how reasonable jurors would react to the overall evidence, including the new medical evidence, to find reasonable doubt or not.

         The Court agrees Gimenez is distinguishable, but nevertheless helpful as a guide for how to look at the totality of the evidence in the context of a claim of actual innocence based on changes in scientific knowledge. Gimenez considered as a matter of first impression whether new evidence surrounding SBS supports habeas relief under 2244(b)(2)(B)(ii) for a petitioner who is actually innocent of any crime. Id. at 1145 (noting that in Cavazos v. Smith, 132 S.Ct 2 (2012) (Ginsburg, J., dissenting) (characterizing the shift in scientific opinions about SBS as being under challenge, not as changed).

         “The Supreme Court has never recognized ‘actual innocence' as a constitutional error that would provide grounds for relief without an independent constitutional violation.” Gimenez, 821 F.3d at 1143. In Gimenez, the Ninth Circuit joined the “[t]hird [c]ircuit in recognizing that habeas petitioners can allege a constitutional [due process] violation from the introduction of flawed expert testimony at trial if they show that the introduction of this evidence ‘undermined the fundamental fairness of the entire trial.'” Id. at 1145 (quoting Lee v. Glunt, 667 F.3d 397, 167 (3rd Cir. 2012) (relying on Murry v. Carrier, 477 U.S. 478, 494 (1986)). The trial must have been “‘so extremely unfair that it [] . . . violate[d] fundamental conceptions of justice.'” Id. (quoting Dowling v. United States, 493 U.S. 342, 352 (1990)).

         In Gimenez, the court examined the evidence as a whole, 28 U.S.C. § 2244(b)(2)(B)(ii); Jones v. Ryan, 733 F.3d 825, 845 (9th Cir.2013), and concluded Gimenez could not prove by “clear and convincing evidence” that “no reasonable factfinder” would have found him guilty but for the introduction of purportedly flawed SBS testimony, 28 U.S.C. § 2244(b)(2)(B)(ii); Gage v. Chappell, 793 F.3d 1159, 1168 (9th Cir.2015). “A juror could still have concluded that Priscilla was shaken to death based on her numerous suspicious injuries, Gimenez' inconsistent statements about Priscilla's torn frenulum and his admitted violent behavior. Even assuming the prosecution's experts couldn't testify that the triad alone establishes SBS, the evidence Gimenez presents isn't enough to show by clear and convincing evidence that “no reasonable factfinder” would have found him guilty.” Gimenez, 821 F.3d at 1145 (citing Jones, 733 F.3d at 845; Gage, 793 F.3d at 1168).

         The posture of Stern's case is distinguishable. After the Ninth Circuit Court of appeals, en banc, held that a valid claim of actual innocence can act as a gateway to excuse an untimely filed habeas petition, Lee v. Lampert, 653 F.3d 929 (9th Cir. 2011) (applying Schlup v. Delo, 513 U.S. 298 (1995), the appellate court remanded Stern's case to determine whether the untimeliness of his Petition “is excused based on his assertion of actual innocence due to newly discovered medical evidence invalidating the prosecution's theory of shaken baby syndrome or shaken impact syndrome.” (Mandate, Order (Doc. 175-1) at 1-2.) After remand, the matter was stayed pending the Petitioner's exhaustion of this argument, which Petitioner had in the interim presented pursuant to a fourth petition for Post-Conviction Relief (PCR), in the Arizona state courts. Rule 32.1(e)(1) (arguing newly discovered scientific evidence established “that shaken baby syndrome (SBS) and thick-cushion shaken impact syndrome (SIS) could never cause traumatic ...

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