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Baker v. Ryan

United States District Court, D. Arizona

May 2, 2018

Roger D. Baker, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          ORDER

          John J. Tuchi, United States District Judge

         At issue is the Report and Recommendation (“R&R”) submitted by United States Magistrate Judge John Z. Boyle (Doc. 31), recommending that this Court grant Petitioner's two pending motions to Amend his Petition (Docs. 18, 20), deny Petitioner's Motion to Strike Response (Doc. 23), deny his Motion to Excuse Procedural Default (Doc. 24), deny his Motion to Sanction Respondents (Doc. 28), and deny the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 2254 itself (Doc. 4). Also at issue is Petitioner's Motion to Stay Petition for Writ of Habeas Corpus (Doc. 32), to which Respondent has filed a Response in opposition (Doc. 33) and in support of which Petitioner has filed an Acknowledgement (Doc. 34), which the Court has treated as a Reply in support of his motion.

         The time to file objections to the R&R is now long past and Petitioner filed none. His two-paragraph Motion to Stay does not address the merits of the R&R's legal analysis, conclusions or recommendations at all; it merely asks this Court to stay the habeas matter to allow Petitioner to return to state court and exhaust his claims. It is not an objection. As Judge Boyle correctly advised the parties in the R&R,

Failure to timely file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed.R.Civ.P. 72.

(Doc. 31 at 17.) This Court is thus empowered to accept and adopt the R&R without further review. Nonetheless, the Court has affirmatively reviewed and evaluated the Petition (Doc. 4), the Response (Doc. 21), the R&R and the briefing on Petitioner's procedural motions. Upon completion of that review the Court will adopt the R&R in whole, finding that Judge Boyle's recommendations and all legal reasoning supporting them are correct. The Court will grant both motions to amend the Petition and thus has considered all seven grounds for relief as set forth by Petitioner. That consideration yields the clear result that all seven grounds are procedurally barred-Petitioner failed to exhaust any of the seven claims before the Arizona State court. He raised none of them in his direct appeal and he did not seek post-conviction review at all. Under Arizona State law the time has expired for him to do so; thus his claims are procedurally defaulted. And Judge Boyle correctly concluded that Petitioner has failed to show cause and prejudice that would justify excusal for that default or that a miscarriage of justice will occur. For all of those reasons the Court will deny and dismiss with prejudice the Petition.

         For the reasons set forth immediately above, the Court also must deny Petitioner's Motion to Stay these proceedings (Doc. 32) to allow him to return to state court and exhaust his seven claims. Such an attempt at exhaustion would be futile because the claims are procedurally defaulted under state law-put simply, Petitioner has waited too long to pursue them. If the Court granted such stay, the Supreme Court of Arizona would apply clear black-letter law to deny any petition for review due to the delay and resulting default, whereafter, Petitioner would be back before this Court upon lifting of the stay without a thing having changed-all his claims still would be unexhausted and therefore subject to dismissal.

         IT IS THEREFORE ORDERED granting Petitioner's Motions to Amend (Docs. 18, 20).

         IT IS FURTHER ORDERED adopting in whole the R&R submitted by Judge Boyle (Doc. 31).

         IT IS FURTHER ORDERED denying and dismissing with prejudice the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 4, as amended by Docs. 18, 20).

         IT IS FURTHER ORDERED denying Petitioner's Motion to Withdraw Limited Response (Doc. 23).

         IT IS FURTHER ORDERED denying Petitioner's Motion to Raise the Showing of Cause and Prejudice (Doc. 24).

         IT IS FURTHER ORDERED denying Petitioner's Motion for Determined $30, 000, 000 Sanction (Doc. 28).

         IT IS FURTHER ORDERED denying Petitioner's Motion to Stay Petition (Doc. 32).

         IT IS FURTHER ORDERED denying a certificate of Appealability and leave to proceed in forma pauperis in this matter because the dismissal of the Petition is justified by a plain procedural bar and reasonable jurists would not find the ruling debatable, and because Petitioner ...


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