United States District Court, D. Arizona
Rosalio D. Beltran, Petitioner,
Charles L. Ryan, et al., Respondents.
K. Jorgenson United States District Judge
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
Addendum Filed by 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.
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.
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.
Report and Recommendation
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.
Objections to Report and Recommendation
August 2011 Petition for Writ of Habeas Corpus Filed in
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.
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