Valenzuela 282900 v. Thornell

[5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] Armando Medrano Valenzuela, No. CV-23-02293-PHX-GMS-ESW [9] Petitioner, 10 ORDER 11 v. and DENIAL OF CERTIFICATE OF Ryan Thornell, 12 APPEALABILITY AND IN FORMA 13 Respondents. PAUPERIS STATUS 14 Pending before the Court is the Report and Recommendation (“R&R”) of 15 Magistrate Judge Eileen S. Willett (Doc. 11) regarding petitioner’s Petition for Writ of 16 Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1). The R&R recommends that 17 the Petition be dismissed with prejudice. The Magistrate Judge advised the parties that 18 they had fourteen days to file objections to the R&R. (R&R at 10 (citing United States v. 19 Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Petitioner filed objections on July 23, 20 2024 (Doc. 12) and Respondents filed a reply on August 5, 2024 (Doc. 13). 21 The Court has considered the objections and reply and reviewed the Report and 22 Recommendation de novo. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636 (b)(1) (stating that 23 the court must make a de novo determination of those portions of the Report and 24 Recommendation to which specific objections are made 25 In his objections, Mr. Valenzuela makes conclusory objections that the R&R (1) 26 misrepresents material facts”; (2) is “reliant upon state law or the state court record”; (3) 27 erred in finding that his petition for post-conviction relief was not “properly filed”; (4) 28 “applied inconsistent or incorrect federal theory”; (5) “does not fairly address all factors 1 relevant to [the] determination of statutory tolling”; and (6) came to a conclusion that “was 2 contrary to relevant Court of Appeals or Supreme Court Decision[s].” (Doc. 12, p. 1). 3 A party objecting to an R&R is required to make “specific written objections”. Fed. 4 Civ. P. 72(b)(2). To the extent the Petitioner’s objects that the Magistrate Judge erred 5 because her denial was “not based upon all factors which Court of Appeals and Supreme 6 Court decision have decided important issue,” or that the R&R “misrepresents material 7 fact,” it is not sufficiently specific for this Court to have any idea what his argument is. It 8 thus falls short of the requirements of the Rule, and provides no basis to reconsider the 9 R&R. 10 Similarly, to the extent that the Petitioner argues that the R&R errs when it relies on 11 state law and determines his PCR petition was not properly filed, he misses the point and 12 he does so in a way that is short on explanation. The R&R explains in some detail why the 13 statute of limitations on his habeas filing expired on May 12, 2017. As the Magistrate 14 Judge’s R&R fully explains, that statute of limitations is imposed by the Anti-Terrorism 15 and Effective Death Penalty Act of 1996 (“AEDPA”). AEDPA is the federal law which 16 governs habeas relief in federal court. To the extent the Petitioner asserts the R&R has 17 wrongfully applied state law, he misperceives the R&R which bases its analysis on the 18 application of the AEDPA’s statute of limitations. To the extent Petitioner suggests that 19 the R&R does not address the relevance of the alternative starting date for the limitations 20 period, 28 U.S.C. § 2244 (d)(1)(D), he provides no basis to believe that he would be 21 advantaged by the application of the alternate period. 22 The R&R further explains why, pursuant to applicable federal law, Petitioner fails 23 in any request to have the statute of limitations tolled for any reason. As noted, even 24 assuming he could demonstrate ineffective assistance of counsel, it would “not give rise to 25 equitable tolling” Milan v. Harrington, 953 F.3d 1128, 1133 (9th Cir. 2020). Nor does 26 petitioner explain why the ineffective assistance of counsel in any state PCR proceeding [27] - 2 - [28] 1 | would have prevented him from timely filing his federal habeas action. Plaintiff is simply 2 | misinformed about the law, and/or otherwise misunderstands the cases he cites. 3 The Court thus accepts the recommended decision within the meaning of Rule || 72(b), Fed. R. Civ. P., and overrules Petitioner’s objections. See 28 U.S.C. § 636 (b)(1) 5 | (stating that the district court “may accept, reject, or modify, in whole or in part, the 6 | findings or recommendations made by the magistrate’’). 7 IT IS ORDERED that Report and Recommendation of the Magistrate Judge (Doc. 8 || 11) is accepted. 9 IT IS FURTHER ORDERED that the Clerk of the Court enter judgment denying 10 || and dismissing Petitioner’s Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. 11} § 2254 (Doc. 1) with prejudice. The Clerk shall terminate this action. 12 Rule 11 of the Rules Governing Section 2254 Cases in the United States District 13 | Courts requires the district court to “issue or a deny a certificate of appealability when it 14 | enters a final order adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254. Should 15 || Petitioner seek a certificate of appealability, a certificate of appealability should be denied 16 || because dismissal of the Petition is justified by a plain procedural bar and jurists of reason 17 || would not find the procedural ruling debatable. 18 Dated this 5th day of September, 2024. 19 - *) 50 A Whacrsay Sooo) Whicren 71 Chief United states District Judge [26] 27 3.