United States District Court, D. Arizona
Honorable David C. Bury United States District Judge.
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.
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,  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
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 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).
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.
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.
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.
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
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.
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.
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).
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)).
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
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 ...