United States District Court, D. Arizona
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 ...