Beltran v. Ryan

          ORDER

          Cindy K. Jorgenson United States District Judge

         Pending before the Court is the Petition for Writ of Habeas Corpus and Addendum (“Petition”) (Doc. 1) filed by Rosalio D. Beltran (“Beltran”). Respondents have filed a Limited Answer (“Answer”) (Docs. 29-39) and Beltran has filed a Reply (Doc. 47). On January 31, 2018, Magistrate Judge Leslie A. Bowman issued a Report and Recommendation (Doc. 48) in which she recommended the District Court dismiss with prejudice Beltran's Petition (Doc. 1) as time-barred. Beltran has filed an Objection (Doc. 50) and Respondents have filed a Response (Doc. 54). After its independent review, the Court DISMISSES with prejudice Beltran's Petition for Writ of Habeas Corpus (Doc. 1) as time-barred.

         I. Addendum Filed by Beltran

         Beltran has also filed an Addendum to Petitioner's Objection to the U.S. Magsitrate's R & R (Doc. 58). Prior to that filing, Beltran had requested additional time to file a reply to the government's response. In denying that request, the Court stated:

Although the applicable rule, Fed.R.Civ.P. 72(b), provides for an objection to a Report and Recommendation and a response to that objection, it does not provide for the filing of a reply. See also 18 U.S.C. 636(b). Petitioner has not set forth any authority or any reason for this Court to permit the filing of a reply in this case.

April 18, 2018, Order (Doc. 57). Beltran's Addendum appears to be an attempt to circumvent this ruling.

         Moreover, as Beltran states in his Addendum, he has presented many of these arguments in his many state and federal filings. Indeed, a review of the Addendum indicates Beltran is merely restating or expanding upon prior arguments.

         Nonetheless, although Beltran's prior filings include the assertions made in the declaration attached to his Addendum, see e.g. Objection (Doc. 50, p. 20), these assertions were not under penalty of perjury as in the Addendum (Doc. 58, Ex. A, p. 7). The Court therefore will accept this filing only to accept and consider the declaration of Beltran.

         II. Report and Recommendation

         This Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). Further, under 28 U.S.C. § 636(b)(1), if a party makes a timely objection to a magistrate judge's recommendation, then this Court is required to “make a de novo determination of those portions of the [report and recommendation] to which objection is made.” The statute does not “require [] some lesser review by [this Court] when no objections are filed.” Thomas v. Arn, 474 U.S. 140, 149-50, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Rather, this Court is not required to conduct “any review at all . . . of any issue that is not the subject of an objection.” Id. at 149.

         III. Objections to Report and Recommendation

         A. August 2011 Petition for Writ of Habeas Corpus Filed in State Courts

         Beltran attempted to file a Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus with the Arizona appellate courts on August 1, 2011. The Arizona Court of Appeals transferred the petition to the Pima County Superior Court. Shortly thereafter, Beltran filed his first federal petition for Writ of Habeas Corpus in this Court. The federal petition was denied on December 11, 2013.

         On October 14, 2014, the state trial court amended Beltran's sentences for his misdemeanor convictions to 180 days with 428 days' presentence incarceration credit. The magistrate judge previously determined that the October 14, 2014, state court ruling served as a new judgment. As stated in the R & R, Beltran's judgment became final on Monday, November 3, 2014, when he failed to file a notice of appeal. R & R, p. 6. Beltran's current petition was “constructively filed . . . on December 29, 2016 when he ...