Fries v. Arizona, State of

— 1 — — 2 — — 3 — — 4 — — 5 — 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA — 8 — 9 Todd Russell Fries, No. CV-20-00411-TUC-CKJ 10 Petitioner, ORDER 11 v. 12 JF Garrido and Mark Brnovich, 13 Respondents. — 14 — — 15 — 16 On July 19, 2021, Magistrate Judge Leslie A. Bowman issued a Report and 17 Recommendation (“R&R”) in which she recommended that Petitioner Todd Russell Fries’ 18 Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody 19 (Doc. 1) be dismissed. (Doc. 15) The Magistrate Judge advised the parties that written 20 objections to the recommendation were to be filed within fourteen days of service of a copy 21 of the R&R under 28 U.S.C. § 636 (b). Id. at 6 . To date, no objections have been filed 22 within the time provided. 23 LEGAL STANDARD 24 The Court “may accept, reject, or modify, in whole or in part, the findings or 25 recommendations made by the magistrate.” 28 U.S.C. § 636 (b)(1). Further, under the 26 pertinent statute, if a party makes a timely objection to a magistrate judge's 27 recommendation, then the Court is required to “make a de novo determination of those 28 portions of the [report and recommendation] to which objection is made.” Id. § 636(b)(1). 1 The statute does not “require[ ] some lesser review by the [Court] when no objections are 2 filed.” Thomas v. Arn, 474 U.S. 140, 150 (1985). Rather, the Court is not required to 3 conduct “any review at all . . . of any issue that is not the subject of an objection.” Id. at 4 149. 5 The Ninth Circuit has also recognized that a district court is not required to review 6 a magistrate judge's report and recommendation where no objections have been filed. See 7 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (reiterating that “to the 8 extent de novo review is required to satisfy Article III concerns, it need not be exercised 9 unless requested by the parties”); Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. 10 Ariz. 2003 ) (“[D]istrict courts are not required to conduct any review at all . . . of any issue 11 that is not the subject of an objection”). In other words, if there is no objection to a 12 magistrate judge's recommendation, then this Court may accept the recommendation 13 without review. See Johnstone, 263 F. Supp. 2d at 1226 . 14 In the case at hand, Petitioner has not filed an objection to the Magistrate Judge’s 15 R&R. While Petitioner has not filed an objection, the Court has independently reviewed 16 the R&R and adopts the recommended findings and conclusions. The Court will accept 17 the R&R and dismiss the Petition. 18 CERTIFICATE OF APPEALABILITY (“COA”) 19 Rule 11(a) of the Rules Governing Section 2254 Cases, requires that the “district 20 court must issue or deny a certificate of appealability when it enters a final order adverse 21 to the applicant.” Such certificates are required in cases concerning detention arising “out 22 of process issued by a State court[,]” or in a proceeding under 28 U.S.C. § 2255 attacking 23 a federal criminal judgment or sentence. 28 U.S.C. § 2253 (c)(1). Here, the Petition is 24 brought pursuant to 28 U.S.C. § 2254 , and challenges detention pursuant to a State court 25 judgment. The Court must determine, therefore, if a COA shall issue. 26 The standard for issuing a COA is whether the applicant has “made a substantial 27 showing of the denial of a constitutional right.” 28 U.S.C. § 2253 (c)(2). “Where a district 28 court has rejected the constitutional claims on the merits, the showing required to satisfy 1 § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would 2 find the district court's assessment of the constitutional claims debatable or wrong.” Slack 3 v. McDaniel, 529 U.S. 473, 484 (2000). “When the district court denies a habeas petition 4 on procedural grounds without reaching the prisoner's underlying constitutional claim, a 5 COA should issue when the prisoner shows, at least, that jurists of reason would find it 6 debatable whether the petition states a valid claim of the denial of a constitutional right and 7 that jurists of reason would find it debatable whether the district court was correct in its 8 procedural ruling.” Id. In the certificate, the Court must indicate which specific issues 9 satisfy the showing. 28 U.S.C. § 2253 (c)(3). 10 The Magistrate Judge determined, and this Court accepted, that the Petition is 11 untimely under the one-year statute of limitations of the Antiterrorism and Effective Death 12 Penalty Act. The Magistrate Judge further determined, and this Court accepted, that the 13 Petition is not subject to statutory or equitable tolling. The Court finds that jurists of reason 14 would not find it debatable whether the Petition stated a valid claim of the denial of a 15 constitutional right and the Court finds that jurists of reason would not find it debatable 16 whether the district court was correct in its procedural ruling. A COA shall not issue as to 17 Petitioner’s claims. 18 Any further request for a COA must be addressed to the Court of Appeals. See Fed. 19 R. App. P. 22(b); Ninth Circuit R. 22-1. — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 — 1 IT IS ORDERED: 2 1. The Report and Recommendation (Doc. 15) is ADOPTED. 3 2. Fries’ Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a 4 Person in State Custody (Doc. 1) is DISMISSED. 5 3. A Certificate of Appealability shall not issue in this case. 6 4. The Clerk of the Court shall enter judgment accordingly and close this case. — 7 — 8 Dated this 17th day of August, 2021. — 9 — 10 Lat, JO Rese 11 Honorable Cin . Jofgenson United States District Judge — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 — -4-