United States District Court, D. Arizona
A. TEILBORG, SENIOR UNITED STATES DISTRICT JUDGE
before the Court is Petitioner's amended petition for
writ of habeas corpus (“Petition”) stemming for
two criminal convictions out of Maricopa County (CR
2012-005939 and CR 2012-139652). (Doc. 29 at 1-2). The
Magistrate Judge to whom this case was assigned issued a
Report and Recommendation (“R&R”)
recommending that this Court deny the Petition in this case.
Specifically, the R&R concluded that the Petition with
respect to both cases was procedurally barred and Petitioner
had not shown cause or fundamental miscarriage of justice to
overcome this procedural default. (Doc. 29 at 7-13).
Additionally, the R&R concludes that as to case CR
2012-139652 the Petition is untimely under the Anti-Terrorism
and Effective Death Penalty Act's statute of limitations.
(Doc. 29 at 4-7). Petitioner filed objections to the R&R.
Petitioner also filed three motions which remain pending.
Review of R&R
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.'”). Because Petitioner
filed objections (titled “Petitioners response to Judge
Bridget S. Bade recommendation to deny and/or dismiss (Doc.
10) (Doc.27) [This is an admiralty or maritime claim within
the meaning of Rule 9(h)]”), the Court will review the
conclusions in the R&R de novo.
R&R concludes that all claims in Petitioner's
petition are barred because none of them were presented to
the Arizona Court of Appeals. (Doc. 29 at 10). Further,
Petitioner did not file a petition for post-conviction relief
in either case. In his objections, Petitioner argues that he
did in fact file a direct appeal in both cases. (Doc. 30 at
1). Nonetheless, the Court agrees with the R&R that the
claims presented in the Petition in this case were not
presented to the Arizona Court of Appeals in either appeal.
Accordingly, this objection is overruled. Later in his
objections, Petitioner denies having appealed arguing
“Plaintiff did not approach the Arizona Court of
Appeals simply due to its lack of
jurisdiction….” (Doc. 30 at 3). Because
Petitioner actually appealed, the Court finds this objection
to be unsupported by the facts.
the R&R concludes that because these claims were not
presented to the state court, and now any presentment would
be untimely, the claims are procedurally defaulted and barred
from habeas review unless Petitioner can show cause and
prejudice or a fundamental miscarriage of justice. (Doc. 29
at 11). The R&R concludes the Petitioner cannot show
either exception to the procedural bar applies in this case.
the Petitioner filed objections globally to the R&R, none
of those objections are directly on this issue. Moreover,
considering this case de novo, the Court agrees with the
R&R that Petitioner's claims are procedurally barred.
the Court agrees with the R&R that Petitioner has not
shown a fundamental miscarriage of justice, or cause, to
overcome this procedural bar. (Doc. 29 at 11-13). Nothing in
Petitioner's objections changes this conclusion.
Accordingly, the claims in the Petition in this case are
procedurally defaulted and the Court will deny the Petition
on this basis.
Other Pending Motions
other motions are pending before this Court: 1)
Petitioner's motion to seal this case; 2)
Petitioner's motion to stay this case; and 3)
Petitioner's motion for summary judgment. The Court will
address each motion in turn.
at least eight Bible passages and 15 Federal Rules of Civil
Procedure, Petitioner makes a conclusory argument that this
case should be sealed because it is a private matter. (Doc.
15). Such argument fails to meet the test for filing under
seal and will be denied. See generally Kamakana v. City
and County of Honolulu, 447 F.3d 1172, 1179-80 (9th Cir.
Petitioner seeks to stay “enforcement of the
judgments” against him in his state court criminal
cases under Federal Rules of Civil Procedure 50, 52, 59, and
60. (Doc. 27). This Court cannot use the Federal Rules to
stay a state court judgment. See generally Pennzoil Co.
v. Texaco, Inc., 481 U.S. 1, 11 (1987); Middlesex
County Ethics Comm.v.GardenStateBarAss=n, 457 U.S. 423,
431 (1982). Accordingly, the stay is denied.
because this Order resolves Petitioner's amended petition
on the merits, summary judgment would be inappropriate. ...