Guerrero v. Shinn

— 1 — — 2 — — 3 — — 4 — — 5 — 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA — 8 — 9 Jaime Bravo Guerrero, No. CV-22-01091-PHX-MTL 10 Petitioner, ORDER 11 v. 12 David Shinn, et al., 13 Respondents. — 14 — 15 Pending before the Court is Petitioner’s Amended Petition for Writ of Habeas 16 Corpus (the “Petition”) (Doc. 5). The Magistrate Judge issued a Report and 17 Recommendation (“R&R”) recommending that the Petition be dismissed with prejudice, 18 and that a certificate of appealability be denied (Doc. 17). Petitioner filed his objections to 19 the R&R (Doc. 18), Respondent’s filed a reply (Doc. 19), and Petitioner filed a sur-reply 20 (Doc. 20). Also before the Court is Respondents’ Motion to Strike (Doc. 21), in which they 21 request that Petitioner’s sur-reply be stricken from the record. 22 I. LEGAL STANDARD 23 This Court “may accept, reject, or modify, in whole or in part, the findings or 24 recommendations made by the magistrate judge.” 28 U.S.C. § 636 (b)(1). It is “clear that 25 the district judge must review the magistrate judge’s findings and recommendations de 26 novo if an objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 27 1114, 1121 (9th Cir. 2003) (en banc); see also Klamath Siskiyou Wildlands Ctr. v. U.S. 28 Bureau of Land Mgmt., 589 F.3d 1027, 1032 (9th Cir. 2009) (explaining that the District 1 Court “must review de novo the portions of the [Magistrate Judge’s] recommendations to 2 which the parties object”); Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 3 2003) (“Following Reyna-Tapia, this Court concludes that de novo review of factual and 4 legal issues is required if objections are made, ‘but not otherwise.’”). The District Court is 5 not required to conduct “any review at all . . . of any issue that is not the subject of an 6 objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). General objections are insufficient 7 to trigger a District Court’s de novo review of a report and recommendation. Neufeld v. 8 Shinn, No. CV-20-08155-PCT-JAT, 2021 WL 3046904 , at *2 (D. Ariz. July 20, 2021). 9 And the Court need only review specific objections. Id. “To be ‘specific,’ the objection 10 must, with particularity, identify the portions of the proposed findings, recommendations, 11 or report to which it has an objection and the basis for the objection.” Id. Accordingly, the 12 Court will only conduct a de novo review of those portions of the R&R to which there is a 13 specific objection. 14 II. FACTUAL BACKGROUND 15 The R&R recounts the factual and procedural history of this case, including the 16 underlying state court proceedings. (Doc. 17 at 1–4) Neither party has objected to this 17 portion of the R&R, and the Court hereby accepts and adopts it. 18 III. DISCUSSION 19 A. Motion to Strike 20 After Respondents filed their reply to Petitioner’s objections to the R&R, Petitioner 21 filed a sur-reply. (Doc. 20) The Court agrees with Respondents that neither the Federal 22 Rules of Civil Procedure nor this Court’s local rules authorize Petitioner to file a sur-reply 23 absent authorization from the Court. As there is no indication that the Magistrate Judge 24 gave Petitioner such authorization, the Court will grant Respondent’s Motion to Strike. 25 (Doc. 21) 26 B. Objection to the Report and Recommendation 27 Petitioner claims that “his Fifth, Six, Eighth, Ninth, and Fourteenth Amendment 28 rights were violated because there are newly discovered material facts under to [sic] Rule 1 33.1 of the Arizona Rules of Criminal Procedure[.]” (Doc. 9 at 2); (Doc. 5 at 3)1 The R&R 2 did not reach the merits of this claim, as the Magistrate Judge found that the Petition was 3 barred by the Anti-Terrorism and Effective Death Penalty Act’s (“AEDPA”) one-year 4 statute of limitations. (Doc. 17 at 11); see 28 U.S.C. § 2244 (d)(1). Specifically, the 5 Magistrate Judge found that the Petition was filed 21 months after the AEDPA’s statute of 6 limitations had run. (Id.) And that neither statutory tolling, equitable tolling, or actual 7 innocence could serve as a basis to toll the statute of limitations. (Id. at 9–11) Based upon 8 these findings, the Magistrate Judge recommended that the Petition be dismissed with 9 prejudice. (Id. at 12) Notably, Petitioner does not object to the Magistrate Judge’s finding 10 that his Petition was untimely. In fact, Petitioner concedes that in “hindsight this Federal 11 Court may not have had jurisdiction over the . . . petition for writ of habeas corpus[.]” (Doc. 12 18 at 2) Instead, Petitioner’s sole objection is to the Magistrate Judge’s recommendation 13 that the Petition be dismissed with prejudice. (Id. at 3) Petitioner’s objection is without 14 merit, as it “is appropriate to dismiss a federal petition for writ of habeas corpus with 15 prejudice when it was not filed within the AEDPA’s one-year statute of limitations.” Sharp 16 v. Martel, No. 08-CV-1527-BEN-CAB, 2009 WL 789645 , at *3 (S.D. Cal. Mar. 17, 2009). 17 This makes sense as “dismissal due to untimeliness is with prejudice, because the 18 untimeliness can never be rectified.” Bautista v. Hatton, No. LA-CV-16-06632-VBF-KK, — 19 — 2016 WL 6137405 , at *5 (C.D. Cal. Oct. 19, 2016) (cleaned up); Jiminez v. Rice, 276 F.3d 20 478, 483 (9th Cir. 2001) (affirming a dismissal with prejudice where the petitioner failed 21 to file within the AEDPA’s statute of limitations). Therefore, the Court overrules 22 Petitioner’s objection to the R&R’s recommendation that the Petition be dismissed with 23 prejudice.2 — 24 — — 25 — — 26 — 1 The Petition originally contained three grounds for relief, but grounds two and three were 27 ultimately dismissed. (Doc. 9 at 2) 28 2 Petitioner also requests in his objections to the R&R that the Petition be remanded to state court. (Doc. 18 at 4) To the extent this request was properly raised, the Court denies it. IV. CONCLUSION 2 Accordingly, IT IS ORDERED as follows: 3 1. The Report and Recommendation (Doc. 17) 1s ACCEPTED and the objections (Doc. 18) are OVERRULED. 5 2. Petitioner’s Amended Petition for Writ of Habeas Corpus (Doc. 5) is 6|| DENIED and DISMISSED WITH PREJUDICE and the Clerk of Court shall enter judgment accordingly. 8 3. Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, in the event || Petitioner files an appeal, the Court DENIES the issuance of a certificate of appealability 10 || because jurists of reason would not find it debatable whether the Petition was properly 11 || dismissed with prejudice as being time-barred under 28 U.S.C. § 2244 (d)(1), see Slack v. || McDaniel, 529 U.S. 473, 484 (2000), and Petitioner has not made a substantial showing of 13 || the denial of a constitutional right. See 28 U.S.C. § 2253 (c)(2). 14 4. Respondent’s Motion to Strike (Doc. 21) is granted. 15 Dated this 24th day of May, 2023. — 16 — Michael T. Liburdi 19 United States District Judge — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 — -4-