Burgess v. Shinn

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Steven Burgess, No. CV-21-01164-PHX-DJH

10 Petitioner, ORDER

11 v.

12 David Shinn, et al.,

13 Respondents. 14 15 Before the Court are two Motions to Strike filed by Respondents (Docs. 14 & 18) 16 and Petitioner’s “Motion to Sanction the State for Abusing these Proceedings by Making 17 Frivolous Motions” (Doc. 19).1 18 I. Background 19 Petitioner filed his Petition for Writ of Habeas Corpus on July 6, 2021 (Doc. 1). On 20 February 15, 2022, Magistrate Judge Boyle issued an R&R recommending the Petition be 21 denied and dismissed with prejudice, and that a certificate of appealability be denied (Doc. 22 8). Magistrate Judge Boyle informed the parties they had 14 days from which to file written 23 objections with the Court, and thereafter, 14 days to file a response to the objections. (Id. 24 at 7). The R&R did not authorize the parties to file replies. 25 Petitioner timely filed his Objections to the R&R on February 25, 2022 (Doc. 9). 26 Respondents, after seeking a short extension, filed a Response to Petitioner’s Objections 27 1 Also pending before the Court is Magistrate Judge John Z. Boyle Report and 28 Recommendation (“R&R”) (Doc. 8) and Petitioner’s Objections thereto (Doc. 9), an Order on which the Court will issue separately. 1 on March 14, 2022 (Doc. 12). On March 25, 2022, without seeking leave from the Court, 2 Petitioner filed a Reply to Respondents’ Response (Doc. 13). Respondents moved to strike 3 the Reply as unauthorized under the Federal Rules of Civil Procedure or this Court’s Local 4 Rules (Doc. 14 at 1–2). In his response to Respondents’ Motion to Strike, Petitioner argues 5 his Reply is authorized under Rule 5(e) of the Rules Governing Section 2254 and 2255 6 cases, and that his reply should be allowed because he bears the burden of proving his case. 7 (Doc. 15). Respondents filed a reply disagreeing with Petitioner’s position (Doc. 16), and 8 Petitioner then filed a sur-reply (Doc. 17). Respondents moved to strike Petitioner’s Sur- 9 Reply as unauthorized under the Rules (Doc. 18). In response to the latest Motion to Strike 10 (Doc. 18), Petitioner asks the Court impose sanctions on Respondents for making motions 11 “that have no basis in fact or law.” (Doc. 19). 12 II. Discussion 13 Rule 81(a)(4) states that so long as the practice has previously conformed to the 14 practice in civil actions, the Federal Rules of Civil Procedure control proceedings for writs 15 of habeas corpus, unless otherwise specified in a federal statute or by the Rules Governing 16 Section 2254 and 2255 Cases. Fed. R. Civ. P. 81(a)(4). Rule 72(b)(2) of the Federal Rules 17 of Civil Procedure expressly authorizes parties to file objections to a magistrate judge’s 18 report and recommendation, as well as responses thereto, but does not authorize the filing 19 of a reply brief. Fed. R. Civ. P. 72(b)(2). Consistent with Rule 72, the R&R did not 20 authorize the parties to file replies in support of their objections. (Doc. 8 at 7). 21 In addition, neither the Federal Rules of Civil Procedure nor the District’s Local 22 Rules entitle a party to a sur-reply as a matter of right. See LRCiv 7.2. Indeed, “sur-replies 23 are highly disfavored and permitted only in extraordinary circumstances.” Finley v. 24 Maricopa Cty. Sheriff’s Office, 2016 WL 777700, *1 n.1 (D. Ariz. Feb. 29, 2016). The 25 Court may use its discretion in allowing a sur-reply “where a valid reason for such 26 additional briefing exists, such as where the movant raises new arguments in its reply 27 brief.” Fitzhugh v. Miller, 2020 WL 1640495, *9 (D. Ariz. Apr. 2, 2020) (citing Hill v. 28 England, 2005 WL 3031136, *1 (E.D. Cal. Nov. 8, 2005)). 1 The Rules do not authorize Petitioner’s Reply in support of his Objection (Doc. 13), 2 or the Sur-Reply he filed following Respondents’ Reply in support of its second Motion to 3 Strike (Doc. 18). Petitioner argues that he filed his Reply in support of his Objections 4 pursuant to Rule 5(e) of the Rules Governing Section 2254 Cases. But Rule 5(e) does not 5 apply to briefing on objections to a R&R. That section expressly governs the authorized 6 briefing allowed on a petition for habeas corpus, not an objection to a R&R. See Rule 5(a)– 7 (e) (authorizing an “answer to the petition” and permitting “a reply to the respondent’s 8 answer or other pleading within a time fixed by the judge”). The briefing that is allowed 9 on a party’s objections is expressly addressed in Federal Rule of Civil Procedure 72(b)(2). 10 See Rule 81(a)(4) (explaining the applicability of the Federal Rules of Civil Procedure in 11 habeas cases in the absence of a specific rule in the Rules Governing Section 2254 12 Cases). 13 Moreover, Petitioner did not seek leave from the Court to file these replies or argue 14 that extraordinary circumstances exist for their filing, and the Court finds that none here 15 exist. Petitioner has had a full opportunity to argue his positions in his briefing on his 16 Petition, and to identify any perceived errors in the R&R by filing his Objections. Any 17 part of the magistrate judge’s disposition that has been properly objected to will be 18 reviewed by this Court de novo. Fed. R. Civ. P. 72(b)(3). 19 According, the Court will grant Respondents’ Motions to Strike. Finding a good 20 faith basis in law exists for Respondents’ Motions to Strike, the Court will in turn deny 21 Petitioner’s Motion for Sanctions. 22 IT IS ORDERED that the Motions to Strike (Docs. 14 & 18) are granted. The 23 Clerk of Court is kindly directed to strike the Petitioner’s “Reply to States Response 24 Pursuant to USCS Sec. 2254 Cases Rule 5(e)” (Doc. 13) and Petitioner’s “Reply to States 25 Reply Objection to the States Abuse of These Proceedings” (Doc. 17). 26 /// 27 /// 28 /// 1 IT IS FURTHER ORDERED that Petitioner’s “Motion to Sanction the State for || Abusing These Proceedings by Making Frivolous Motion that Have no Basis in Fact or || Law” (Doc. 19) is denied. 4 Dated this 28th day of June, 2022. 5 6 Do ee 7 norable'DiangJ4. Hurfetewa g United States District Fudge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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