United States District Court, D. Arizona
Honorable Raner C. Collins Chief United States District
before the Court is a Report and Recommendation
(“R&R”) issued by United States Magistrate
Judge Bernardo P. Velasco (Doc. 13) that recommends granting
Respondent's Motion to Dismiss (Doc. 10). The Court has
also considered Petitioner's Objection to the R&R
(Doc. 14), and the Respondent's Response thereto (Doc.
preliminary matter, the Court agrees with Respondent that
Petitioner has used his opportunity to object to the R&R
to, instead, advance new facts and raise a new claim. For the
first time in this, or any of the several cases he
has filed in relation to his criminal conviction, Petitioner
complains he is entitled to relief from his sentence on
account of a “key procedural flaw in the history of
this matter.” Doc. 14 at 1. The “procedural flaw,
” according to Petitioner, was that the Fifth Circuit
permitted “[his] sentencing counsel to withdraw from
his initial [direct] appeal without appointing [him]
substitute counsel[, ]” and thereby denied him his
constitutionally mandated right to appellate counsel. Doc. 14
at 1-2. As a result, Petitioner argues, he [Petitioner] did
not receive an unobstructed procedural shot at presenting the
claim(s) of actual innocence he raises in the instant §
2241 petition. Id. at 2. Such circumstances,
Petitioner concludes, are evidence that he qualifies for the
“escape hatch” provision of 28 U.S.C. §2255
such that dismissal for lack of jurisdiction would be
inappropriate. Id. at 1.
Court has discretion, but is not obliged, to consider
evidence and argument presented for the first time in a
party's objection to a magistrate judge's
recommendation. Brown v. Roe, 279 F.3d 742, 744 (9th
Cir. 2002). In this case, and for the following reasons, the
Court declines to do so.
because Petitioner had ample opportunity to raise these
issues at the outset of this matter and/or during the
pendency of his § 2255 petition and application for a
second § 2255 petition. Petitioner offers no explanation
for why he did not do so.
because even if the law underpinning Petitioner's new,
tardy claim were favorable to him, the record in United
States v. Alferez, No. 3:10-CR-2736-1 (W.D. Tex.
February 28, 2012)(“Criminal Matter”) and in the
direct appeal United States v. Alferez, No. 12-50080
(5th Cir. April 11, 2012)(“Direct Appeal”) belie
his representations regarding the “history of this
Court's review of the procedural history of those matters
revealed the following. A Notice of Appeal
(“NOA”) was filed on Petitioner's behalf on
or about January 20, 2012. Criminal Matter Doc. 94; Direct
Appeal Doc. 1. The NOA was signed by Ramona Alferez on behalf
of Petitioner, ostensibly pursuant to some grant of power of
attorney. Id. At the time the NOA was filed,
Petitioner was represented by retained counsel Michael Gibson
(“Gibson”) with respect to restitution matters
still pending before the trial court. See Criminal Matter
Doc. 95 at 1; Direct Appeal Doc. 00511758282 at 1. It
appears, however, Gibson was never retained to represent
Petitioner in connection with his appeal. Id.
Nonetheless, on February 13, 2012 the Fifth Circuit Court of
Appeals sent Gibson a letter prompting him to comply with
various procedural rules affecting the status of the appeal.
See Direct Appeal Doc. 00511756789 at 1-2. Amongst the rules
cited were Fed. R. App. 12(b) and 5th Cir. R. 12,
which require counsel who desire to appear in an appellate
matter to sign and return a “Form of Appearance of
Counsel.” Id. at 2. Gibson did not file said
“Form of Appearance of Counsel.” Instead, Gibson
filed a “Motion to Withdra[w] as Attorney of
Record” informing the Court of Appeals that he had not
been retained in connection with the pending appeal and
requesting that his name be withdrawn as attorney of record.
Direct Appeal Doc. 00511758282 at 2. The Fifth Circuit
responded by: (1) withdrawing Gibson as Petitioner's
counsel of record in the direct appeal, (2) sending
Petitioner a letter at his place of incarceration, dated
February 24, 2012, which acknowledged his pro se appellant
status and directed him to, within 30 days, either retain
appellate counsel, file the requisite in forma
pauperis forms should he seek appointment of appellate
counsel, or clearly and unequivocally express his intent, in
writing, to proceed, pro se, with the appeal. Direct Appeal
Doc. 00511767886. Petitioner filed no responsive document.
Thereafter and pursuant to 5th Cir. R. 42.3, the
Clerk of the Court for the Fifth Circuit entered a judgment
dismissing the appeal on April 11, 2012 for want of
prosecution, specifically citing Petitioner's failure to
comply with the February 24, 2012 notice. Direct Appeal Doc.
00511817682. Petitioner did not seek reconsideration of the
dismissal either in the Court of Appeals or in the District
appellant's failure to take any step other than the
timely filing of a NOA does not affect the validity of the
appeal, but is ground[s] … for such action as the
court of appeals deems appropriate. Fed. R. App. P. 3(a)(2).
Such action may include dismissal of the appeal. Id.
Certain circuits, such as the Fifth, have rules governing
dismissals of appeals for failure to prosecute. Fifth Circuit
Rule 42, for instance, empowers the clerk of that court to,
after providing notice and an opportunity to cure, enter an
order of dismissal for want of prosecution when prisoners
proceeding pro se fail to comply with deadlines and court
directives. See Fifth Cir. R. 42.3.
clear from the record that, if there is blame to be laid for
Petitioner's lack of appellate counsel, it should lie
with Petitioner and not with the Fifth Circuit. Consequently
and furthermore, this Court finds is nothing in the record to
support Petitioner's “objection” that he was
denied an unobstructed procedural shot at presenting the
claim(s) of actual innocence in a direct appeal.
being no further objection and, having reviewed all other
relevant matters of record in this case including the
Findings, Conclusions, and Recommendation of Magistrate Judge
Velasco, the undersigned District Judge is of the opinion
that the Findings and Conclusions of the Magistrate Judge are
correct. Accordingly, IT IS ORDERED:
(1) Magistrate Judge Velasco's R&R (Doc.
13) is ACCEPTED AND ADOPTED as the
Findings and Conclusions of this Court.
(2) Respondent's Motion to Dismiss (Doc.
10) is GRANTED.
(3) The Clerk of the Court is ordered to enter judgment
dismissing this matter accordingly and close its ...