1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Larry Donnell Dunlap, No. CV-21-00314-TUC-RCC
10 Petitioner, ORDER
11 v.
12 David Shinn, et al.,
13 Respondents. 14 15 On May 8, 2023, United States Magistrate Judge Eric J. Markovich issued a 16 Report and Recommendation ("R&R") in which he recommended that this Court deny 17 Petitioner Larry Donnell Dunlap's Petition Under 28 U.S.C. § 2254 for a Writ of Habeas 18 Corpus by a Person in State Custody ("Petition"). (Doc. 30.) On May 23, 2023, Petitioner 19 filed an Objection. (Doc. 33.) Respondent filed a Response on June 6, 2023. (Doc. 34.) 20 The Court will deny the Petition. 21 On June 13, 2023, Petitioner filed a motion seeking leave to reply to Respondent. 22 (Doc. 36.) He argues that he needs to correct Respondent's "false facts and misquote of 23 case laws." (Id. at 1.) Federal Rule of Civil Procedure 72(b)(2) permits written objections 24 to a magistrate judge's report and recommendation and allows the non-objecting party an 25 opportunity to respond. Fed. R. Civ. P. 72(b)(2). It does not provide for replies as a 26 matter of right, but it allows the Court discretion to permit a reply. The Court, in its 27 discretion, will not permit reply here. The Court finds no false facts or misstatements of 28 law in Respondent's Response, and, even if there were, the Court's focus is on the 1 Magistrate Judge's R&R and any specific objections that Petitioner has raised which the 2 Court will review de novo based on its review of the record and relevant law. 3 I. Standard of Review 4 The standard of review applied to a magistrate judge's report and recommendation 5 depends on whether a party files objections. See Thomas v. Arn, 474 U.S. 140, 149–50 6 (1985). A district court need not review "a magistrate's factual or legal conclusions, under 7 a de novo or any other standard, when neither party objects to those findings." Id. at 150. 8 If, however, a party objects, the district court "must determine de novo any part of the 9 magistrate judge's disposition that has been properly objected to. The district judge may 10 accept, reject, or modify the recommended disposition; receive further evidence; or return 11 the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 12 636(b)(1)(C). Although the district court is not required to review an issue de novo absent 13 a proper objection, the statute "does not preclude further review by the district judge, sua 14 sponte or at the request of a party, under a de novo or any other standard." Thomas, 474 U.S. at 154. 15 II. Factual and Procedural History1 16 17 After a jury trial in 1996, Petitioner was convicted of one count of sexual abuse 18 and five counts of child molestation. State v. Dunlap, 2021 WL 2134851, at *1 (Ariz. Ct. 19 App. May 26, 2021). He was resentenced following his first appeal to an aggregate prison 20 term of 69.5 years. Id. Between 2003 and 2020, Petitioner unsuccessfully sought post- 21 conviction relief on numerous occasions. Id. (collecting cases). 22 On November 7, 2020, Petitioner filed a Notice Requesting Post-Conviction 23 Relief, raising a new claim under State v. Tarango, 914 P.2d 1300 (Ariz. 1996). (Doc. 15- 24 2 at 11–12.) He asserted that the failure to timely file the notice was not his fault because 25 he was "presented with the newly [sic] evidence of State v. Tarango case and ADCC 26 ruled that relief is proper in a Rule 30 proceeding." (Id. at 13.) On November 11, 2020, 27 Petitioner filed his successive pro se PCR Petition. (Id. at 14–24.) Petitioner averred that
28 1 There being no objection to the Magistrate Judge's factual summary, the Court will offer an abridged summary. 1 he learned of Tarango and believed he is entitled to parole hearings based on its holding. 2 (Id. at 20.) He further argued "that the Board of Parole has failed to re-certified [sic] him 3 since 1998, which has violated Defendant's 14th Amendment Right of due process and . . 4 . [his] 8th Amendment rights against cruel and unusal [sic] punishment . . . [and] equal 5 protection[.]" (Id. at 22–23.) 6 The Rule 32 court found Petitioner's claim was precluded because he "did not raise 7 this issue in a timely manner [and] failed to provide the [c]ourt with sufficient reasons 8 why he did not raise the claim earlier." (Doc. 15-1 at 13–14.) Accordingly, the court 9 denied relief. (Id.) 10 The Arizona Court of Appeals granted review and denied relief. State v. Dunlap, 11 2021 WL 2134851 (Ariz. Ct. App. May 26, 2021). It determined Petitioner's claim under 12 Arizona Rule of Criminal Procedure 32.1(a) was precluded by Rule 32.2(a)(3) because 13 Petitioner waived the claim when he did not raise it on appeal following resentencing. Id. 14 at *1. The court further concluded that Petitioner was required to raise any claim under 15 Rule 32.1(c) and (d) within a reasonable time after discovering its basis and "to explain in 16 his notice 'the reasons for not raising the claim in a previous notice or petition, or for not 17 raising the claim in a timely manner.'" Id. at *2 (citing Ariz. R. Crim. P. 32.2(b), 18 32.4(b)(3)(B)). The appellate court noted that even if Petitioner had raised his Tarango 19 claim in a timely manner, it would fail on the merits. Id. The Arizona Supreme Court 20 denied his petition for review. (Doc. 15-1.) 21 On August 3, 2021, Petitioner filed this Petition with one ground for relief—that 22 the Arizona Department of Corrections Rehabilitations Re-Entry violated his rights under 23 the 14th Amendment and 8th Amendment to the U.S. Constitution by refusing to give 24 Petitioner relief under Tarango and recertify him for parole credit. (Doc. 1.) 25 III. Magistrate's R&R 26 On May 8, 2023, the Magistrate Judge issued his recommendation that this Court 27 deny the Petition. (Doc. 30.) The Magistrate Judge first determined that the Petition is 28 untimely absent tolling. (Id. at 7.) The Magistrate Judge then explained that "[b]ecause 1 the Court is unable to accurately determine the statutory tolling that Petitioner may be 2 entitled to, it will equitably toll the statute of limitations for the instant habeas in order to 3 consider the petition." (Id. at 8.) 4 Nonetheless, the Magistrate Judge found that this Court should deny the Petition 5 because Petitioner's claim is procedurally defaulted thereby precluding federal review. 6 (Id. at 14.) The Magistrate Judge underscored that the state courts denied the claim 7 because it was precluded based on state procedural law. (Id. at 15.) The Magistrate Judge 8 explained that "[t]he Arizona procedural rule is an independent and adequate state law 9 ground precluding federal habeas review." (Id. (citing Stewart v. Smith, 536 U.S. 856, 10 860 (2002); Carriger v. Lewis, 917 F.2d 329, 333 (9th Cir. 1992)).) The Magistrate Judge 11 also concluded that Petitioner had not met his burden of showing cause and prejudice, or, 12 by clear and convincing evidence, that, but for a constitutional error, no reasonable 13 factfinder would have found him guilty of the underlying offense. (Id. at 15–16.) 14 IV.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Larry Donnell Dunlap, No. CV-21-00314-TUC-RCC
10 Petitioner, ORDER
11 v.
12 David Shinn, et al.,
13 Respondents. 14 15 On May 8, 2023, United States Magistrate Judge Eric J. Markovich issued a 16 Report and Recommendation ("R&R") in which he recommended that this Court deny 17 Petitioner Larry Donnell Dunlap's Petition Under 28 U.S.C. § 2254 for a Writ of Habeas 18 Corpus by a Person in State Custody ("Petition"). (Doc. 30.) On May 23, 2023, Petitioner 19 filed an Objection. (Doc. 33.) Respondent filed a Response on June 6, 2023. (Doc. 34.) 20 The Court will deny the Petition. 21 On June 13, 2023, Petitioner filed a motion seeking leave to reply to Respondent. 22 (Doc. 36.) He argues that he needs to correct Respondent's "false facts and misquote of 23 case laws." (Id. at 1.) Federal Rule of Civil Procedure 72(b)(2) permits written objections 24 to a magistrate judge's report and recommendation and allows the non-objecting party an 25 opportunity to respond. Fed. R. Civ. P. 72(b)(2). It does not provide for replies as a 26 matter of right, but it allows the Court discretion to permit a reply. The Court, in its 27 discretion, will not permit reply here. The Court finds no false facts or misstatements of 28 law in Respondent's Response, and, even if there were, the Court's focus is on the 1 Magistrate Judge's R&R and any specific objections that Petitioner has raised which the 2 Court will review de novo based on its review of the record and relevant law. 3 I. Standard of Review 4 The standard of review applied to a magistrate judge's report and recommendation 5 depends on whether a party files objections. See Thomas v. Arn, 474 U.S. 140, 149–50 6 (1985). A district court need not review "a magistrate's factual or legal conclusions, under 7 a de novo or any other standard, when neither party objects to those findings." Id. at 150. 8 If, however, a party objects, the district court "must determine de novo any part of the 9 magistrate judge's disposition that has been properly objected to. The district judge may 10 accept, reject, or modify the recommended disposition; receive further evidence; or return 11 the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 12 636(b)(1)(C). Although the district court is not required to review an issue de novo absent 13 a proper objection, the statute "does not preclude further review by the district judge, sua 14 sponte or at the request of a party, under a de novo or any other standard." Thomas, 474 U.S. at 154. 15 II. Factual and Procedural History1 16 17 After a jury trial in 1996, Petitioner was convicted of one count of sexual abuse 18 and five counts of child molestation. State v. Dunlap, 2021 WL 2134851, at *1 (Ariz. Ct. 19 App. May 26, 2021). He was resentenced following his first appeal to an aggregate prison 20 term of 69.5 years. Id. Between 2003 and 2020, Petitioner unsuccessfully sought post- 21 conviction relief on numerous occasions. Id. (collecting cases). 22 On November 7, 2020, Petitioner filed a Notice Requesting Post-Conviction 23 Relief, raising a new claim under State v. Tarango, 914 P.2d 1300 (Ariz. 1996). (Doc. 15- 24 2 at 11–12.) He asserted that the failure to timely file the notice was not his fault because 25 he was "presented with the newly [sic] evidence of State v. Tarango case and ADCC 26 ruled that relief is proper in a Rule 30 proceeding." (Id. at 13.) On November 11, 2020, 27 Petitioner filed his successive pro se PCR Petition. (Id. at 14–24.) Petitioner averred that
28 1 There being no objection to the Magistrate Judge's factual summary, the Court will offer an abridged summary. 1 he learned of Tarango and believed he is entitled to parole hearings based on its holding. 2 (Id. at 20.) He further argued "that the Board of Parole has failed to re-certified [sic] him 3 since 1998, which has violated Defendant's 14th Amendment Right of due process and . . 4 . [his] 8th Amendment rights against cruel and unusal [sic] punishment . . . [and] equal 5 protection[.]" (Id. at 22–23.) 6 The Rule 32 court found Petitioner's claim was precluded because he "did not raise 7 this issue in a timely manner [and] failed to provide the [c]ourt with sufficient reasons 8 why he did not raise the claim earlier." (Doc. 15-1 at 13–14.) Accordingly, the court 9 denied relief. (Id.) 10 The Arizona Court of Appeals granted review and denied relief. State v. Dunlap, 11 2021 WL 2134851 (Ariz. Ct. App. May 26, 2021). It determined Petitioner's claim under 12 Arizona Rule of Criminal Procedure 32.1(a) was precluded by Rule 32.2(a)(3) because 13 Petitioner waived the claim when he did not raise it on appeal following resentencing. Id. 14 at *1. The court further concluded that Petitioner was required to raise any claim under 15 Rule 32.1(c) and (d) within a reasonable time after discovering its basis and "to explain in 16 his notice 'the reasons for not raising the claim in a previous notice or petition, or for not 17 raising the claim in a timely manner.'" Id. at *2 (citing Ariz. R. Crim. P. 32.2(b), 18 32.4(b)(3)(B)). The appellate court noted that even if Petitioner had raised his Tarango 19 claim in a timely manner, it would fail on the merits. Id. The Arizona Supreme Court 20 denied his petition for review. (Doc. 15-1.) 21 On August 3, 2021, Petitioner filed this Petition with one ground for relief—that 22 the Arizona Department of Corrections Rehabilitations Re-Entry violated his rights under 23 the 14th Amendment and 8th Amendment to the U.S. Constitution by refusing to give 24 Petitioner relief under Tarango and recertify him for parole credit. (Doc. 1.) 25 III. Magistrate's R&R 26 On May 8, 2023, the Magistrate Judge issued his recommendation that this Court 27 deny the Petition. (Doc. 30.) The Magistrate Judge first determined that the Petition is 28 untimely absent tolling. (Id. at 7.) The Magistrate Judge then explained that "[b]ecause 1 the Court is unable to accurately determine the statutory tolling that Petitioner may be 2 entitled to, it will equitably toll the statute of limitations for the instant habeas in order to 3 consider the petition." (Id. at 8.) 4 Nonetheless, the Magistrate Judge found that this Court should deny the Petition 5 because Petitioner's claim is procedurally defaulted thereby precluding federal review. 6 (Id. at 14.) The Magistrate Judge underscored that the state courts denied the claim 7 because it was precluded based on state procedural law. (Id. at 15.) The Magistrate Judge 8 explained that "[t]he Arizona procedural rule is an independent and adequate state law 9 ground precluding federal habeas review." (Id. (citing Stewart v. Smith, 536 U.S. 856, 10 860 (2002); Carriger v. Lewis, 917 F.2d 329, 333 (9th Cir. 1992)).) The Magistrate Judge 11 also concluded that Petitioner had not met his burden of showing cause and prejudice, or, 12 by clear and convincing evidence, that, but for a constitutional error, no reasonable 13 factfinder would have found him guilty of the underlying offense. (Id. at 15–16.) 14 IV. Petitioner's Objection 15 Petitioner objects to the Magistrate Judge's finding that his claim is procedurally 16 defaulted because he says he only learned of Tarango in 2020 and therefore could not 17 have brought the claim sooner. (Doc. 33 at 3.) The Court notes that Petitioner's Objection 18 is in large part a repetition of the arguments he made before the Magistrate Judge. (Doc. 19 33) Any written objections to a report and recommendation "are not to be construed as a 20 second opportunity to present the arguments already considered by the Magistrate 21 Judge." Betancourt v. Ace Ins. Co. of Puerto Rico, 313 F. Supp. 2d 32, 34 (D.P.R. 2004); 22 see also Camardo v. Gen. Motors Hourly-Rate Emps. Pension Plan, 806 F. Supp. 380, 23 382 (W.D.N.Y. 1992) (“The purpose of the Federal Magistrates Act is to relieve courts of 24 unnecessary work” and “[t]here is no increase in efficiency, and much extra work, when a 25 party attempts to relitigate every argument which it presented to the Magistrate Judge.”). 26 V. Discussion 27 The Court has reviewed the R&R (Doc. 30), Petitioner's Objection (Doc. 33), 28 Respondent's Response to Petitioner's Objections (Doc. 34), Petition (Doc. 1), Response (Doc. 15), and the record and authority that was before the Magistrate Judge. The Court 2|| finds the R&R thorough and well-reasoned and will adopt it in its entirety. The claim Petitioner raises under Tarango is procedurally defaulted, precluding federal habeas review. See Coleman v. Thompson, 501 U.S. 722, 728 (1991). As the Magistrate Judge □□ explained in detail (Doc. 30 at 9-16), the Arizona state courts denied Petitioner's claim || based on a state procedural rule that is an independent and adequate state law grounds to || support the judgment. The Court has "no power to review a state law determination that 8 || is sufficient to support the judgment, [because] resolution of any independent federal 9|| ground for the decision could not affect the judgment and would therefore be advisory." Td. 11 Petitioner has not raised any specific objection to this finding or the Magistrate 12|| Judge's finding that Petitioner has not shown cause and prejudice to overcome this 13 | procedural bar. 14 VI. Conclusion 15 Accordingly, IT IS ORDERED that Petitioner's Motion for Leave to File Reply is 16 DENIED. (Doc. 36.) 7 IT IS FURTHER ORDERED that the R&R is ADOPTED (Doc. 30) and 18 Petitioner's Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus is DENIED. 19 The Clerk of Court shall docket accordingly and close the case file in this matter. 20 Dated this 29th day of June, 2023. 21 22 A, 23 LL Dp Th Cyl 24 Honorable Raner ©. Collins merior United States District Judge 26 27 28
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