Arido-Sorro v. Ryan

          ORDER

          Cindy K. Jorgenson United States District Judge

         On February 6, 2019, Magistrate Judge Jacqueline Rateau issued a Report and Recommendation (“R & R”) (Doc. 23) in which she recommended that the Amended Petition^[1] Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Doc. 10) filed by Marvin Arido-Sorro (“Arido-Sorro”) be dismissed with prejudice. Arido-Sorro has filed a Motion for Objections Recommendation for Magistrate Judge (Doc. 48). Respondents have not filed a Response.

         Additional motions filed by Arido-Sorro are pending before the Court: Rule 6 Motion for Leave of Court to Expand the Record, Rule 7(a)(b)(c), for Section 2254 Cases (Doc. 32), Motion to Disclose Obstruction of Justice by States of Arizona Superior Court, No. CR 2015-2545 (Doc. 33), Motion to Vacate sentence (Legal and Constitutional Defenses) (Equal Protection U.S. Constitution) (AEDPA Standards) (Docs. 34 and 35), Motion: Re-Disclosed the First was Missing 06/20/2015; Motion: Present Fabrication Arrest Report by Detective Ives #49854 T.P.D.; Motion: To Vacate with a Memorandum of Understanding (Doc. 36), Motion to Support of Habeas Corpus Relief - ABA Standards for Criminal Justice (Doc. 37), Motion for Federal Question Jurisdiction Prosecution - Perjury (Doc. 38), Motion for Federal Question - Obstruction of Justice or Conspiracy (Doc. 39), Motion for Federal Question Jurisdiction - Privacy (Doc. 40), Motion: Brady Violation; Motion: Request Rule 4A Search and Seizure (3)(e)(a), in Accordance with Rule 4A; Motion: Vacate Sentence (Doc. 41), Motion for Federal Question Fraudulent Concealment (Brady Violation) (Doc. 42), Motion for Federal Question Right to Remain Silent 5th and 14th (Doc. 43), Motion to Support of Habeas Corpus Relief; Motion Vacate Conviction in Release (Doc. 44), and Request for Clarification Status, Rule 16.2(b)(4)(C) LRCiv (Doc. 45).^[2]

         Additionally, after the issuance of the R & R, Arido-Sorro filed a Motion for Judicial Notice - Complete and Total Denial of Natural Justice (Doc. 47) and a Motion for Objections Recommendation for Magistrate Judge (Doc. 48). The Court accepts these documents as Arido-Sorro's Objections to the R & R.

         Rule 6 Motion for Leave of Court to Expand the Record, Rule 7(a)(b)(c), for Section 2254 Cases (Doc. 32)

         Arido-Sorro seeks discovery regarding bar records and the deposition of defense trial counsel. Arido-Sorro also seeks to provide testimony regarding interference by the Arizona Department of Corrections with his receipt of mail regarding bar investigation findings from California and Arizona.

         “A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997). However, for good cause, a court may allow discovery in a § 2254 Proceeding. Rules Governing Section 2254 Cases 6(a). Good cause under Rule 6(a) exists “where specific allegations before the court show reason to believe that the petitioner may, if facts are fully developed, be able to demonstrate that he is . . . entitled to relief[.]” Bracy v. Gramley, 520 U.S. 899, 908-09, (1997), quoting Harris v. Nelson, 394 U.S. 286, 300 (1969). As summarized by the Ninth Circuit Court of Appeals:

[F]ederal habeas court must allow discovery and an evidentiary hearing only where a factual dispute, if resolved in the petitioner's favor, would entitle him to relief . . . Conclusory allegations are not enough to warrant discovery under Rule 6 . . .; the petitioner must set forth specific allegations of fact. Rule 6 . . . does not authorize fishing expeditions.”).

Calderon v. U.S. Dist. Court for the N. Dist. of California, 98 F.3d 1102, 1106 (9th Cir. 1996), quoting Ward v. Whitley, 21 F.3d 1355, 1367 (5th Cir.1994) (footnotes omitted). Here, the information provided to the Court indicates that any disciplinary proceedings against trial defense counsel involved financial management (e.g, management of trust account and client funds) and not the substantive representation of clients. Further, although Arido-Sorro refers to the disbarment of counsel, the documentation provided to the Court indicates counsel has been censured and suspended, but not disbarred, and was in active status at the time of Arido-Sorro's proceedings. See also Calif. Bar Summary of Abrams, http://members.calbar.ca.gov/fal/Licensee/Detail/117481. Arido-Sorro has not shown how any such misconduct is relevant to whether trial defense counsel provide effective assistance to Arido-Sorro. In other words, Arido-Sorro has not made any specific allegations which provide the Court reason to believe Arido-Sorro may be entitled to relief if discovery was permitted and facts were fully developed. The Court will deny this request.

         Motion to Disclose Obstruction of Justice by States of Arizona Superior Court, No. CR 2015-2545 (Doc. 33), Motion to Vacate sentence (Legal and Constitutional Defenses) (Equal Protection U.S. Constitution) (AEDPA Standards) (Docs. 34 and 35); Motion: Re-Disclosed the First was Missing 06/20/2015; Motion: Present Fabrication Arrest Report by Detective Ives #49854 T.P.D.; Motion: To Vacate with a Memorandum of Understanding (Doc. 36), Motion for Federal Question Jurisdiction Prosecution - Perjury (Doc. 38); Motion for Federal Question - Obstruction of Justice or Conspiracy (Doc. 39); Motion for Federal Question Jurisdiction - Privacy (Doc. 40); Motion: Brady Violation; Motion: Request Rule 4A Search and Seizure (3)(e)(a), in Accordance with Rule 4A; Motion: Vacate Sentence (Doc. 41); Motion for Federal Question Fraudulent Concealment (Brady Violation) (Doc. 42); Motion for Federal Question Right to Remain Silent 5th and 14th (Doc. 43); Motion to Support of Habeas Corpus Relief; Motion Vacate Conviction in Release (Doc. 44)

         These pending motions filed by Arido-Sorro repeat and supplement the allegations and arguments made by Arido-Sorro in his habeas petition and supplemental brief. However, Arido-Sorro has not provided any reasons in the habeas petition, supplemental brief, or pending motions why the allegations and arguments presented in his habeas petition and supporting brief insufficiently present his claims. The Court will summarily deny these motions.

         Motion to Support of Habeas Corpus Relief - ABA Standards for Criminal Justice (Doc. 37)

         In his habeas petition, Arido-Sorro requested the opportunity to supplement his ineffective assistance of counsel claims. The Court accepts this motion as Arido-Sorro's supplement to this claim. The Court will grant this request to the extent it provides supplemental argument to the Court.

         Request for Clarification Status, Rule ...