1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Randy Boblitz, No. CV-21-02072-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 (“Amended Petition”) (Doc. 7), Motion for Summary Judgment (Doc. 19), and 17 Motion to Strike Respondents’ Response to Doc. 17 (Doc. 21). The Magistrate Judge 18 issued a Report and Recommendation (“R&R”) (Doc. 22) recommending that the 19 Amended Petition (Doc. 7) and Motion to Strike Respondents’ Response to Doc. 17 (Doc. 20 21) be denied, the Motion for Summary Judgment (Doc. 19) be stricken from the docket, 21 the case be dismissed with prejudice, and a certificate of appealability be denied. Petitioner 22 filed his objections to the R&R (Doc. 23) to which Respondents filed a reply (Doc. 24). 23 Petitioner filed a reply to Respondents’ reply (Doc. 25) and Respondents filed a motion to 24 strike Petitioner’s reply (Doc. 26). After the Magistrate Judge issued the R&R, Petitioner 25 filed a Motion to Amend his Amended Petition (Doc. 27) and a Motion to Set Deliberation 26 on his Motion for Summary Judgment (Doc. 30) which are also pending. 27 I. LEGAL STANDARD 28 This Court “may accept, reject, or modify, in whole or in part, the findings or 1 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that 2 the district judge must review the magistrate judge’s findings and recommendations de 3 novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 4 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263 F.Supp.2d 5 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that de novo 6 review of factual and legal issues is required if objections are made, ‘but not otherwise.’”); 7 Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 1027, 1032 (9th 8 Cir. 2009) (the district court “must review de novo the portions of the [Magistrate Judge’s] 9 recommendations to which the parties object”). District courts are not required to conduct 10 “any review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 11 474 U.S. 140, 149 (1985); see also 28 U.S.C. § 636(b)(1) (“[T]he court shall make a de 12 novo determination of those portions of the [report and recommendation] to which 13 objection is made.”). Accordingly, the Court will review the portions of the R&R de novo 14 to which there is a specific objection. 15 II. FACTUAL BACKGROUND 16 The R&R recounts the factual and procedural history of this case, including the 17 underlying state court proceedings, at pages 1–4. (Doc. 22 at 1–4). Neither party has 18 objected to this portion of the R&R and the Court hereby accepts and adopts it. 19 III. DISCUSSION 20 Petitioner sets forth three claims in the Amended Petition. (Doc. 7.) The R&R 21 recommends that this Court deny relief on all claims due to the untimeliness of the 22 Amended Petition under the Antiterrorism and Effective Death Penalty Act of 1996 23 (“AEDPA”) and the unavailability of equitable tolling. (Doc. 22 at 4–6.) Petitioner objected 24 to the R&R’s recommended finding that he has not demonstrated equitable tolling. (Doc. 25 23 at 1.) Respondents replied to that objection. (Doc. 24). 26 As discussed above, this Court need only review the portions of the R&R to which 27 there is an objection. Therefore, the Court adopts the R&R’s recommendation on 28 Petitioner’s Motion for Summary Judgment (Doc. 19) and Motion to Strike Respondents’ 1 Response to Doc. 17 (Doc. 21), and any requested relief is denied as to those motions. 2 A. Respondents’ Motion to Strike Petitioner’s Reply 3 After Respondents filed their reply to Petitioner’s objections to the R&R, Petitioner 4 filed a sur-reply to Respondents’ reply, asserting that Respondents’ calculation of the 5 applicable tolling period is incorrect. Respondents filed a Motion to Strike Petitioner’s 6 sur-reply, arguing that it is procedurally improper. (Doc. 26 at 1.) The Court agrees with 7 Respondents that neither the Federal Rules of Civil Procedure nor this Court’s local rules 8 authorize Petitioner to file a sur-reply to Respondents’ reply to Petitioner’s objections 9 absent authorization from the Court. There is no indication that the Magistrate Judge gave 10 Petitioner leave to file a sur-reply, so the Court grants Respondents’ Motion to Strike 11 Petitioner’s sur-reply (Doc. 25). The Court will not consider Petitioner’s sur-reply in its 12 determination on the R&R. 13 B. Equitable Tolling 14 The R&R discusses the law governing the AEDPA statute of limitations and 15 equitable tolling. Neither party objected to this statement of the law, and the Court accepts 16 it. As recounted in the R&R, AEDPA “provides that a one-year statute of limitations period 17 shall apply” to petitions for a writ of habeas corpus by persons in state custody that “runs 18 from the latest of . . . the date on which the judgment became final by the conclusion of 19 direct review or the expiration of the time for seeking such review.” (Doc. 22 at 4) (citing 20 18 U.S.C. § 2254(d)(1) and Lott v. Mueller, 304 F.3d 918, 921 (9th Cir. 2002)). The 21 AEPDA statute of limitations period is tolled during the time that a “‘properly filed 22 application for State post-conviction or other collateral review with respect to the pertinent 23 judgment or claims is pending,’” (id. at 4) (quoting 28 U.S.C. § 2244(d)(2)), but “a state 24 proceeding initiated after the expiration of the statute of limitations does not reset the one- 25 year clock,” (id. at 5) (citing Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003)). 26 Arizona Rule of Criminal Procedure 33.4(b)(3)(A) requires that a defendant file a notice 27 of post-conviction review within 90 days of judgment and sentencing. (Doc. 22 at 4.) 28 Finally, the R&R addresses the standard for equitable tolling: 1 The statute of limitations may however be equitably tolled if “(1) the petitioner has diligently pursued his rights, and 2 (2) extraordinary circumstances exist.” United States v. 3 Aquirre-Ganceda, 592 F.3d 1043, 1045 (9th Cir. 2010) (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). The burden 4 of establishing entitlement to equitable tolling is on Petitioner. 5 Pace, 544 U.S. at 418. Equitable tolling is available “only when extraordinary circumstances beyond a prisoner’s control 6 make it impossible to file a petition on time and the 7 extraordinary circumstances were the cause of [the petitioner’s] untimeliness.” Bills v. Clark, 628 F.3d 1092 (9th 8 Cir.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Randy Boblitz, No. CV-21-02072-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 (“Amended Petition”) (Doc. 7), Motion for Summary Judgment (Doc. 19), and 17 Motion to Strike Respondents’ Response to Doc. 17 (Doc. 21). The Magistrate Judge 18 issued a Report and Recommendation (“R&R”) (Doc. 22) recommending that the 19 Amended Petition (Doc. 7) and Motion to Strike Respondents’ Response to Doc. 17 (Doc. 20 21) be denied, the Motion for Summary Judgment (Doc. 19) be stricken from the docket, 21 the case be dismissed with prejudice, and a certificate of appealability be denied. Petitioner 22 filed his objections to the R&R (Doc. 23) to which Respondents filed a reply (Doc. 24). 23 Petitioner filed a reply to Respondents’ reply (Doc. 25) and Respondents filed a motion to 24 strike Petitioner’s reply (Doc. 26). After the Magistrate Judge issued the R&R, Petitioner 25 filed a Motion to Amend his Amended Petition (Doc. 27) and a Motion to Set Deliberation 26 on his Motion for Summary Judgment (Doc. 30) which are also pending. 27 I. LEGAL STANDARD 28 This Court “may accept, reject, or modify, in whole or in part, the findings or 1 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that 2 the district judge must review the magistrate judge’s findings and recommendations de 3 novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 4 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263 F.Supp.2d 5 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that de novo 6 review of factual and legal issues is required if objections are made, ‘but not otherwise.’”); 7 Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 1027, 1032 (9th 8 Cir. 2009) (the district court “must review de novo the portions of the [Magistrate Judge’s] 9 recommendations to which the parties object”). District courts are not required to conduct 10 “any review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 11 474 U.S. 140, 149 (1985); see also 28 U.S.C. § 636(b)(1) (“[T]he court shall make a de 12 novo determination of those portions of the [report and recommendation] to which 13 objection is made.”). Accordingly, the Court will review the portions of the R&R de novo 14 to which there is a specific objection. 15 II. FACTUAL BACKGROUND 16 The R&R recounts the factual and procedural history of this case, including the 17 underlying state court proceedings, at pages 1–4. (Doc. 22 at 1–4). Neither party has 18 objected to this portion of the R&R and the Court hereby accepts and adopts it. 19 III. DISCUSSION 20 Petitioner sets forth three claims in the Amended Petition. (Doc. 7.) The R&R 21 recommends that this Court deny relief on all claims due to the untimeliness of the 22 Amended Petition under the Antiterrorism and Effective Death Penalty Act of 1996 23 (“AEDPA”) and the unavailability of equitable tolling. (Doc. 22 at 4–6.) Petitioner objected 24 to the R&R’s recommended finding that he has not demonstrated equitable tolling. (Doc. 25 23 at 1.) Respondents replied to that objection. (Doc. 24). 26 As discussed above, this Court need only review the portions of the R&R to which 27 there is an objection. Therefore, the Court adopts the R&R’s recommendation on 28 Petitioner’s Motion for Summary Judgment (Doc. 19) and Motion to Strike Respondents’ 1 Response to Doc. 17 (Doc. 21), and any requested relief is denied as to those motions. 2 A. Respondents’ Motion to Strike Petitioner’s Reply 3 After Respondents filed their reply to Petitioner’s objections to the R&R, Petitioner 4 filed a sur-reply to Respondents’ reply, asserting that Respondents’ calculation of the 5 applicable tolling period is incorrect. Respondents filed a Motion to Strike Petitioner’s 6 sur-reply, arguing that it is procedurally improper. (Doc. 26 at 1.) The Court agrees with 7 Respondents that neither the Federal Rules of Civil Procedure nor this Court’s local rules 8 authorize Petitioner to file a sur-reply to Respondents’ reply to Petitioner’s objections 9 absent authorization from the Court. There is no indication that the Magistrate Judge gave 10 Petitioner leave to file a sur-reply, so the Court grants Respondents’ Motion to Strike 11 Petitioner’s sur-reply (Doc. 25). The Court will not consider Petitioner’s sur-reply in its 12 determination on the R&R. 13 B. Equitable Tolling 14 The R&R discusses the law governing the AEDPA statute of limitations and 15 equitable tolling. Neither party objected to this statement of the law, and the Court accepts 16 it. As recounted in the R&R, AEDPA “provides that a one-year statute of limitations period 17 shall apply” to petitions for a writ of habeas corpus by persons in state custody that “runs 18 from the latest of . . . the date on which the judgment became final by the conclusion of 19 direct review or the expiration of the time for seeking such review.” (Doc. 22 at 4) (citing 20 18 U.S.C. § 2254(d)(1) and Lott v. Mueller, 304 F.3d 918, 921 (9th Cir. 2002)). The 21 AEPDA statute of limitations period is tolled during the time that a “‘properly filed 22 application for State post-conviction or other collateral review with respect to the pertinent 23 judgment or claims is pending,’” (id. at 4) (quoting 28 U.S.C. § 2244(d)(2)), but “a state 24 proceeding initiated after the expiration of the statute of limitations does not reset the one- 25 year clock,” (id. at 5) (citing Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003)). 26 Arizona Rule of Criminal Procedure 33.4(b)(3)(A) requires that a defendant file a notice 27 of post-conviction review within 90 days of judgment and sentencing. (Doc. 22 at 4.) 28 Finally, the R&R addresses the standard for equitable tolling: 1 The statute of limitations may however be equitably tolled if “(1) the petitioner has diligently pursued his rights, and 2 (2) extraordinary circumstances exist.” United States v. 3 Aquirre-Ganceda, 592 F.3d 1043, 1045 (9th Cir. 2010) (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). The burden 4 of establishing entitlement to equitable tolling is on Petitioner. 5 Pace, 544 U.S. at 418. Equitable tolling is available “only when extraordinary circumstances beyond a prisoner’s control 6 make it impossible to file a petition on time and the 7 extraordinary circumstances were the cause of [the petitioner’s] untimeliness.” Bills v. Clark, 628 F.3d 1092 (9th 8 Cir. 2010) (emphasis in original) (internal quotes and citation 9 omitted).
10 (Doc. 22 at 5.) 11 Petitioner objects to the R&R’s finding that he is not entitled to equitable tolling as 12 “not a true statement” and lays out his own calculations for the applicable tolling periods. 13 (Doc. 23 at 1.) According to Petitioner, he filed his Notice of Post-Conviction Review 14 (“PCR notice”) in Arizona Superior Court on September 1, 2020 which should have tolled 15 the statute of limitations while his PCR petition was pending. (Doc. 23 at 2.) Petitioner 16 fails to explain, however, how his PCR notice was timely filed within the applicable 90-day 17 period to file under Arizona Rule of Criminal Procedure 33.4(b)(3)(A). The Arizona 18 Superior Court sentenced Petitioner on June 4, 2019, so his deadline to file his PCR notice 19 fell on September 2, 2019, nearly a year before he filed it. The R&R correctly notes that 20 “[b]ecause Petitioner did not initiate [PCR] proceedings” by September 2, 2019, “his 21 conviction and sentence became final” on that date, “and the one-year deadline for filing a 22 federal habeas petitioner began the next day.” (Doc. 22 at 4.) Petitioner filed his original 23 habeas petition on December 7, 2021, over a year and three months after the expiration of 24 the AEDPA statute of limitations on September 3, 2020. 25 Petitioner argues, without explanation, that there is “newly discovered material” for 26 this Court to consider. (Id. at 2.) Petitioner’s objections, however, do not address the legal 27 standard for equitable tolling or satisfy his burden to show that he has “diligently pursued 28 his rights” and “extraordinary circumstances” beyond his control warrant a tolling of the 1 statute of limitations here. Thus, the objections do not change the R&R’s conclusions that 2 Petitioner’s Amended Petition is barred by the AEDPA statute of limitations and equitable 3 tolling does not apply. Accordingly, relief will be denied. 4 C. Petitioner’s Other Pending Motions 5 After the Magistrate Judge issued her R&R, Petitioner filed a Motion to Amend his 6 Amended Petition (Doc. 27) and a Motion to Set Deliberation on his Motion for Summary 7 Judgment (Doc. 30). Because the Court is adopting the R&R’s recommendations to deny 8 the Amended Petition on untimeliness grounds, which the Petitioner cannot remedy with 9 an amendment to the petition, and strike Petitioner’s Motion for Summary Judgment from 10 the docket as procedurally improper, the Court denies both of Plaintiff’s motions as moot. 11 /// 12 /// 13 /// 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. CONCLUSION 2 Accordingly, IT IS ORDERED as follows: 3 1. the Report and Recommendation (Doc. 22) is accepted and the objections 4|| (Doc. 23) are overruled; 5 2. Respondent’s Motion to Strike Petitioner’s Reply (Doc. 26) is granted and 6|| Petitioner’s Reply to Respondents’ Reply to Petitioner’s Objections to the R&R (Doc. 25) || is stricken from the docket; 8 3. Petitioner’s Motion for Summary Judgment (Doc. 19) is stricken from the 9|| docket; 10 4. Petitioner’s Motion to Strike Respondents’ Response to Doc. 17 (Doc. 21), 11 || Motion to Amend his Amended Petition (Doc. 27), and Motion to Set Deliberation on his 12 || Motion for Summary Judgment (Doc. 30) are denied as moot; 13 5. Petitioner’s Amended Petition (Doc. 7) is denied and dismissed with || prejudice and the Clerk of the Court shall enter judgment accordingly; and 15 6. pursuant to Rule 11 of the Rules Governing Section 2254 Cases, in the event 16 || Petitioner files an appeal, the Court denies issuance of a certificate of appealability because 17 || dismissal of the petition is based on a plain procedural bar and jurists of reason would not 18 || find this Court’s procedural ruling debatable, see Slack v. McDaniel, 529 U.S. 473, 484 (2000), and Petitioner has not made a substantial showing of the denial of a constitutional 20 || right, see 28 U.S.C. § 2253(c)(2). 21 Dated this Ist day of December, 2022. 22 Michael T. bundle 24 Michael T. Liburdi 25 United States District Judge 26 27 28
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