Farris 300210 v. Thornell

• Court: District Court, D. Arizona
• Decided: January 14, 2025
• Docket: 3:23-cv-08002
• Status: Unknown

Opinion

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

9 Marzet Farris, III, No. CV-23-08002-PCT-JAT

10 Petitioner, ORDER

11 v.

12 David Shinn, et al.,

13 Respondents. 14 15 Pending before the court is Petitioner’s Petition for Writ of Habeas Corpus 16 (“Petition”), (Doc. 1), and Petitioner’s Motion for Leave to Supplement Objections, (Doc. 17 58). The Magistrate Judge to whom this case was referred has issued a Report and 18 Recommendation (“R&R”). (Doc. 47). Petitioner filed objections to the R&R. (Doc. 56). 19 Respondents replied. (Doc. 57). Petitioner filed a sur-reply, (Doc. 61), which Respondents 20 moved to strike (Doc. 62). 21 I. Review of R&R 22 This Court “may accept, reject, or modify, in whole or in part, the findings or 23 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 24 72. It is “clear that the district judge must review the magistrate judge’s findings and 25 recommendations de novo if objection is made, but not otherwise.” United States v. Reyna- 26 Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. 27 Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this 28 Court concludes that de novo review of factual and legal issues is required if objections are 1 made, ‘but not otherwise.’”); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land 2 Mgmt., 589 F.3d 1027, 1032 (9th Cir. 2009) (the district court “must review de novo the 3 portions of the [Magistrate Judge’s] recommendations to which the parties object.”). 4 District courts are not required to conduct “any review at all . . . of any issue that is not the 5 subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see 6 also 28 U.S.C. § 636(b)(1) (“the court shall make a de novo determination of those portions 7 of the [report and recommendation] to which objection is made.”). 8 Objections must be specific, not general. Warling v. Ryan, No. CV-12-01396-PHX- 9 DGC, 2013 WL 5276367, at *2 (D. Ariz. Sept. 19, 2013) (citing Thomas, 474 U.S. at 149) 10 (“[T]he Court has no obligation to review Petitioner’s general objections to the R&R”); 11 Martin v. Ryan, No. CV-13-00381-PHX-ROS, 2014 WL 5432133, at *2 (D. Ariz. October 12 24, 2014) (“[W]hen a petitioner raises a general objection to an R&R, rather than specific 13 objections, the Court is relieved of any obligation to review it.”). “To be ‘specific,’ the 14 objection must, with particularity, identify the portions of the proposed findings, 15 recommendations, or report to which it has an objection and the basis for the objection.” 16 Kenniston v. McDonald, No. CV-15-2724-AJB-BGS, 2019 WL 2579965, at *7 (S.D. Cal. 17 June 24, 2019) (internal citations omitted). “[S]imply repeating arguments made in the 18 petition is not a proper objection.” Curtis v. Shinn, No. CV-19-04374-PHX-DGC (JZB), 19 2021 WL 4596465, at *7 (D. Ariz. Oct. 6, 2021). 20 II. Background 21 The R&R discusses the relevant factual and procedural background of this case. 22 (Doc. 47 at 1-7). The Court summarizes the background here. 23 Petitioner and co-Defendant Laura Stelmasek were charged with “first degree 24 murder, conspiracy to commit murder, evidence tampering, and moving a dead body.” 25 (Doc. 47 at 2). Petitioner was represented by counsel at a jury trial. (Doc. 47 at 2). At trial, 26 prosecutors introduced testimony from Jennifer Schmidlin, a friend of Petitioner. (Doc. 47 27 at 2). “Petitioner was convicted as charged, and he was sentenced on April 8, 2015 to 28 consecutive terms of natural life on the murder and life on the conspiracy, and concurrent 1 terms of 1 and 1.5 years on the other lesser convictions.” (Doc. 47 at 2). 2 Petitioner filed a notice of direct appeal. (Doc. 47 at 3). The Arizona Court of 3 Appeals affirmed his convictions and sentences. (Doc. 47 at 3). The Arizona Supreme 4 Court summarily denied review and “[t]he Arizona Court of Appeals issued its mandate on 5 May 23, 2017.” (Doc. 47 at 3). Petitioner then filed a notice of post-conviction relief 6 (“PCR”). (Doc. 47 at 3). Counsel filed a PCR petition. (Doc. 47 at 3). The PCR court 7 “denied on the merits the claims of ineffective assistance of counsel” but subsequently 8 authorized counsel “to file a supplement to the PCR petition with any additional claims.” 9 (Doc. 47 at 3). Counsel did so, “but then moved at Petitioner’s insistence to strike it so 10 Petitioner could file his own pro per supplemental petition with different claims.” (Doc. 11 47 at 3). Petitioner’s supplemental petition was denied by the PCR court. (Doc. 47 at 3). 12 Petitioner filed a petition for review. (Doc. 47 at 3). “[T]he Arizona Court of Appeals [] 13 granted review, but summarily denied relief based on absence of an abuse of discretion or 14 error of law.” (Doc. 47 at 3-4). The Arizona Supreme Court denied Petitioner’s request for 15 review “and the Arizona Court of Appeals issued its mandate on February 23, 2022.” (Doc. 16 47 at 4). 17 Petitioner then filed this Petition. (Doc. 47 at 4). Petitioner asserts eight general 18 grounds for relief, which have been divided into 25 subclaims.1 (Doc. 47 at 4). The Court 19 rejected the original R&R, (Doc. 39), based on an “affidavit regarding the prison mailbox 20 rule,” (Doc. 46). The current R&R was subsequently issued. (Doc. 47). 21 a. Objections: Factual and Procedural Background 22 Although Petitioner did not reference this section of the R&R, Petitioner makes 23 numerous objections to the R&R “adopting” or “copying” the State’s facts.2 This Court 24 must presume the correctness of the state court’s factual findings regarding a petitioner’s

25 1 Respondents divided Petitioner’s eight general claims into 25 subclaims. Petitioner did not oppose Respondents’ construction and the R&R adopted it. (Doc. 47 at 4). This Court 26 now adopts the same structure. 2 For example, Petitioner objects that (1) “it is fundamental error for [the R&R] to adopt 27 wholesale the facts, the language and arguments of the State;” (2) the R&R’s recommendations “are taken nearly word for word from either the State’s reply (Doc. 47) 28 or the Arizona Court of Appeals [] findings;” and (3) the R&R “does not represent a complete or fair examination of the Record.” (Doc. 56 at 4-5). 1 claims. 28 U.S.C. § 2254(e)(1); see also Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2 2011); Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004). Petitioner had “the burden 3 of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. 4 § 2254(e)(1). Petitioner did not rebut the presumption. Thus, to the extent that Petitioner 5 does object to the R&R’s recitation of the factual and procedural background, or to the 6 R&R elsewhere referencing the state court’s factual findings, the objection is overruled. 7 III. Objections 8 Petitioner himself “agree[s] with the Respondents[], that the submitted objections 9 do lack a certain amount of specificity.” (Doc. 61 at 2). However, the Court recognizes that 10 Petitioner proceeds pro se and will therefore construe Petitioner’s filing liberally and 11 address specific objections where possible. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 12 2010). 13 a. Global Objections 14 Petitioner objects to the entirety of the R&R multiple times. (See, e.g., Doc. 56 at 1 15 (“[T]he following Memorandum of Points and Authorities ha[s] been developed in support 16 of these objections, to each adverse ruling of the [R&R], and requests that this Court reject 17 the [R&R] in its entirety”); Doc. 56 at 4 (“[Petitioner] objects to each and every adverse 18 ruling of [the R&R]”); Doc. 56 at 6 (“[T]his Court should conduct its own review of all the 19 issues and disregard this [R&R] in its entirety.”))). Global objections like these do not 20 obligate the Court to review every word of the 78-page R&R de novo and the Court 21 overrules this objection. Gwen v. Att’y Gen. of Arizona, No. CV-20-08327-PCT-JAT, 2022 22 WL 2168112, at *1 (D. Ariz. June 16, 2022) (finding that general objections do not 23 overcome Ninth Circuit case law “that this Court need only review de novo factual and 24 legal issues to which there is a specific objection”). The Court now turns to Petitioner’s 25 other objections. 26 / / / 27 / / / 28 / / / 1 b. Objections Within Petitioner’s “Standard of Review”3 Section

2 i. Objections to R&R’s analysis of Petitioner’s ineffective assistance of counsel and prosecutorial misconduct claims 3 4 Petitioner generally objects that the R&R copied “the State’s Reply . . . and the 5 Arizona Court of Appeals [] findings” and, “[a]s such, . . . is replete with errors taken from 6 the Reply.”4 (Doc. 56 at 5). Petitioner makes two specific objections related to this general 7 objection. First, Petitioner says that “the [R&R’s finding] that trial counsel ‘made the 8 tactical, strategic decision not to offer expert testimony’ . . . overlooks the facts developed 9 by the PCR Record . . . as well as in the habeas brief and Reply.” (Doc. 56 at 5). Petitioner 10 concludes that “trial counsel’s decisions were neither reasonable nor strategic” because 11 “counsel failed to investigate the facts of the case or conduct proper due diligence in 12 defense of Petitioner.” (Doc. 56 at 5). 13 Upon review, the Court is unclear which part of the R&R Petitioner objects to 14 because the quoted portion provided by Petitioner does not appear to be from the R&R. 15 Nonetheless, the Court will construe Petitioner’s objection to be with respect to the R&R’s 16 analysis of Petitioner’s ineffective assistance of counsel claim related to counsel’s failure 17 to retain expert witnesses (Ground Four(a)). The R&R finds Petitioner’s Ground 4(a) claim 18 procedurally defaulted because Petitioner did not present the claim to the Arizona Court of 19 Appeals. (Doc. 47 at 21-24). The R&R explains that although “Petitioner did reference this 20 claim in his PCR Petition for Review,” it was underneath the heading “Issues of Superior 21 Court Not Presented For Review.” (Doc. 47 at 22 (emphasis added)). “[T]he plain import 22 of Petitioner’s Petition for Review was that he was NOT raising the claims identified 23 [underneath that heading].” (Doc. 47 at 22) Thus, regardless of whether trial counsel’s 24 decision regarding experts was tactical or strategic, this claim fails because it is 25 procedurally defaulted without excuse. This conclusion is based on a review of the entire 26 record. This objection is overruled, without excuse.

27 3 The Court will use the standard of review it stated above. 4 The Court is unclear what Petitioner means by “the Reply” because Petitioner uses “the 28 Reply” to cite to different documents, including the R&R itself. (see generally Doc. 56 at 5). 1 The second objection Petitioner makes is to the R&R “finding the facts from only 2 one sides[’] papers” such as when “the [R&R] states Schmidlin’s testimony to have been 3 an issue of credibility for the resolve of the jury.” (Doc. 56 at 5). Petitioner cites page 48, 4 lines five through nine of the R&R. (Doc. 56 at 5). There, the R&R recites the “essential 5 elements” of prosecutorial misconduct, as laid out by the state: “The state noted the 6 essential elements of such a claim are misconduct and prejudice (considered cumulatively), 7 and that the relevant form of misconduct was presenting testimony the prosecutor knew to 8 be false, and that short of such knowledge, credibility was for the jury to decide.” (Doc. 47 9 at 48). These elements go toward Petitioner’s Ground 1(b) claim, in which “Petitioner 10 argues the prosecution engaged in misconduct when it offered false testimony from 11 Petitioner’s friend, Schmidlin.” (Doc. 47 at 45). 12 Petitioner’s objection to this specific portion of the R&R is overruled; the R&R 13 correctly states the “essential elements” of a prosecutorial misconduct claim. However, the 14 Court understands Petitioner to actually be objecting to the R&R because Petitioner 15 believes that by categorizing Schmidlin’s testimony as “an issue of credibility for the 16 resolve of the trial jury,” the R&R “omits the fact that Petitioner argued Schmidlin’s 17 credibility could not have been properly before the trial jury absent [Schmidlin’s] pretrial 18 interview statements.” (Doc. 56 at 5). On this point, the Court presumes the correctness of 19 the Arizona Court of Appeals findings regarding Schmidlin’s pretrial interview and trial 20 testimony: [Petitioner] testified that he and [Schmidlin] were “good friends,” and that he had 21 confided in her about his relationship with [co-Defendant] Stelmasek. [Petitioner] 22 also conceded that [Schmidlin] was reluctant to testify against him. Although [Schmidlin] had stated in pretrial interviews that [Petitioner] had twice assaulted her 23 in 2005, that allegation was not necessarily inconsistent with their ongoing 24 relationship/friendship, as related by both [Petitioner] and the friend during their trial testimony. Moreover, although [Petitioner] testified that the friend lied when 25 saying that she did not know the plane ticket was for a trip to Arizona, the superior 26 court later noted—and both the prosecutor and defense counsel agreed—that [Schmidlin] “did an artful job of dancing around any possibility of perjured 27 testimony,” at least with respect to whether she knew the plane ticket was for a trip 28 to Arizona. Finally, [Petitioner] fails to cite any evidence supporting his claim that the 2005 allegations were false or that [Schmidlin] lied repeatedly during the 1 investigation and pretrial discovery. 2 (Doc. 47 at 47 (quoting Arizona Court of Appeals decision)). Based on these findings, the 3 Court agrees that Schmidlin’s credibility was a jury question. Regardless, because 4 Petitioner has not explained why these findings are contrary to, or involved an 5 unreasonable application of, clearly established Federal law” or were based on an 6 unreasonable determination of the facts, this objection is overruled.5 See Lockyer v. 7 Andrade, 538 U.S. 63, 71 (2003). 8 Petitioner also objects to the R&R’s dismissal of his prosecutorial misconduct claim 9 because “the State never once offered Schmidlin’s testimony to be true or factual.” (Doc. 10 56 at 5). This objection still fails. So long as the prosecutor did not have actual knowledge 11 that the testimony was false, “the prosecutor [was] not precluded from presenting the 12 testimony and leaving it to the jury to determine the credibility of the testimony in light of 13 the conflicting or impeaching evidence.” (Doc. 47 at 53). The R&R cites numerous cases 14 in support of this. (Doc. 47 at 53). This objection is overruled. 15 ii. Objection to R&R’s review of Petitioner’s constitutional claims 16 Petitioner objects that the R&R “fails to address any of the constitutional claims of 17 the Petition [and] dismiss[es] wholesale the merits of constitutionality as proffered.” (Doc. 18 56 at 6). Petitioner cites numerous United States Supreme Courts cases and argues that the 19 “holdings prescribe that habeas relief is available to this Petitioner as a just challenge owing 20 to several constitutional infringements . . . properly presented to this Court.” (Doc. 56 at 21 6). 22 The R&R clearly addresses all of Petitioner’s constitutional claims and explains 23 why its decisions are in-line with United States Supreme Court precedent. To the extent 24 that this is a specific objection, it is overruled. 25 5 To support this objection, Petitioner cites United States v. Owens, 484 U.S. 554 (1988). 26 (Doc. 56 at 5). The Court notes that Owens is factually distinct from Petitioner’s case; in Owens, the Court considered “whether either the Confrontation Clause of the Sixth 27 Amendment or Rule 802 of the Federal Rules of Evidence bars testimony concerning a prior, out-of-court identification when the identifying witness is unable, because of 28 memory loss, to explain the basis for the identification.” 484 U.S. at 555-56. This case does not involve an evidentiary question of a prior, out-of-court identification. 1 iii. Objection to the evidence R&R relies on 2 Petitioner objects to the R&R on the basis that his “evidentiary requests and 3 offerings have simply been ignored, denied, rejected, summarily dismissed or suppressed 4 by [the R&R], in favor of the offerings of the Respondents without so much as a qualified 5 legal explanation of reasoning.” (Doc. 56 at 7). Petitioner cites footnote 1 of the R&R. 6 (Doc. 56 at 7). That footnote explains: “Petitioner appends to his Petition various 7 transcripts . . . and various decisions and orders in the state courts. These records have 8 [also] been provided with the [a]nswer. The undersigned provides citations to only the 9 copies of these exhibits provided with the [a]nswer.” (Doc. 47 at 2 n.1 (internal citation 10 omitted)). This footnote explains why the R&R “makes absolutely no mention or citation 11 to any of the twenty plus evidentiary exhibits presented by the Petition.” (Doc. 56 at 7). 12 The R&R cites to evidence that was provided by both Petitioner and Respondents, but the 13 R&R cites only to the exhibit from the Respondents’ answer. The evidence is the same. 14 Thus, the R&R considered, and cited to, Petitioner’s evidence and there is no basis for this 15 objection. 16 c. Objections Within Petitioner’s “Objections to Report” Section 17 i. Objection One: R&R “Concedes Misconduct of State” 18 The objections in this section relate “to the Petitioner’s claims for prosecutorial 19 misconduct and its associative claims of impropriety directly tied to [the misconduct].” 20 (Doc. 56 at 8). Petitioner objects that the R&R “readily acknowledged that the State of 21 Arizona unlawfully violated [Petitioner’s] 14th Amendment Due Process rights[] during 22 his jury trial” and therefore “qualif[ied] Petitioner’s claim for prosecutorial misconduct to 23 be of merit.” (Doc. 56 at 8). Petitioner cites page 46, lines 1-2 of the R&R. (Doc. 56 at 8). 24 There, the R&R states: “Respondents further argue that Petitioner in any event fails to show 25 prejudice from the misconduct, . . . .” (Doc. 47 at 46 (emphasis added)). 26 The R&R does not use the phrase “the misconduct” to mean that there was 27 misconduct in this case. Rather, the R&R is paraphrasing Respondents’ argument that 28 “[e]ven assuming, arguendo” that Petitioner could demonstrate prosecutorial misconduct, 1 “he is still not entitled to relief because he cannot demonstrate he suffered any prejudice.” 2 (Doc. 11 at 45). In other words, to complete their argument, Respondents “assumed” the 3 existence of prosecutorial misconduct. However, Respondents did not concede any type of 4 prosecutorial misconduct. The R&R repeating Respondents’ argument cannot be construed 5 to mean that the R&R “acknowledged,” “qualified,” or “validated” the existence of 6 misconduct. This objection is overruled. 7 Petitioner also objects to the R&R’s finding “that the prejudice clause remains 8 unsatisfied and deficient to warrant either de novo review or relief.” (Doc. 56 at 8). 9 Petitioner includes quotes from pages 48-50 of the R&R.6 Although Petitioner suggests 10 that this objection affects Grounds One, Two, Three, and Five, the quoted portions are all 11 from the part of the R&R that analyzes Petitioner’s Ground 1(b) claim for prosecutorial 12 misconduct related to Schmidlin’s testimony. Thus, this Court will analyze this objection 13 as Petitioner specifically objecting to the R&R’s finding regarding the “prejudice clause” 14 in Ground 1(b). 15 As set out by the Arizona Court of Appeals, courts “consider alleged instances of 16 misconduct cumulatively to determine whether the misconduct became ‘so pronounced and 17 persistent that it permeate[d] the entire atmosphere of the trial,’ thereby resulting in a denial 18 of due process.” (Doc. 47 at 47 (Arizona Court of Appeals quoting State v. Morris, 215 19 Ariz. 324, 335, ¶ 46 (2007) (citation omitted))). Petitioner claims that “throughout the state 20 appellate process . . . and within Petitioner’s habeas briefings,” Petitioner sufficiently 21 showed that “prejudice attached to [the prosecutorial] misconduct” and that it affected 22 Petitioner’s trial. (Doc. 56 at 8). Petitioner says the R&R did not “elaborate[e] upon the 23 specific details of the effectual prejudice . . . as distinguished by Petitioner’s briefings.” 24 (Doc. 56 at 8-9). 25 6 Petitioner provided the following quotes from the R&R (Doc. 47) in his objections (Doc. 26 56 at 8): - “. . . Petitioner failed to show prejudice.” (Doc. 47 at 48). 27 - “But Petitioner proffers nothing to prove. . . .” (Doc. 47 at 50 (emphasis added by Petitioner)) 28 - “Petitioner complains. . .” (Doc. 47 at 49, 50). - “Petitioner tellingly complains. . .” (Doc. 47 at 50). 1 Petitioner’s objection is misplaced. For this Court to find relief for Petitioner, the 2 Court must first find that there was prosecutorial misconduct. If “misconduct has not been 3 shown, there is no ‘error’ from which the ‘effect’ may be accumulated to show prejudice.” 4 (Doc. 47 at 48 (quoting United States v. Geston, 299 F.3d 1130, 1138 (9th Cir. 2002))). As 5 discussed above, Petitioner has not made a sufficient objection to the R&R’s conclusion 6 that there was no prosecutorial misconduct. In other words, prejudice is irrelevant because 7 the R&R’s conclusion that there was no prosecutorial misconduct stands. Additionally, the 8 Court finds that the R&R sufficiently “elaborates upon” Petitioner’s theory of prejudice. 9 (See Doc. 56 at 45-46). This objection is overruled.

10 ii. Objection Two: R&R’s “Unreliability Exemplifies its Abject Bias and Prejudice” 11 Petitioner does not cite to the R&R in this section and does not make any specific 12 objections for the Court to consider.7 13 iii. Objection Three: R&R “Misinforms [and] Misleads Regarding 14 Petitioner’s Failure to Rebut Judgments of the Lower Courts” 15 Petitioner objects to the “findings and recommendations of [Section] VI (1 – 6)” 16 because that part of the R&R “erroneously inform[s] and advise[s]” this Court that 17 Petitioner “failed to demonstrate the Lower Courts[’] decisions [were] meritless and/or 18 unreasonable.” (Doc. 56 at 10). Petitioner also “informs” the Court “that every elemental 19 issue of argument presented to this Court has been previously proffered, addressed and 20 [disseminated].” (Doc. 56 at 10). 21 Objecting to a large portion of the R&R on the basis that it is “erroneous,” without 22 demonstrating why, is not a specific objection. Similarly, “informing” the Court of 23 something is not an objection at all. Thus, there is no specific objection in this section for 24 the Court to consider. 25 / / /

26 7 Petitioner’s objection “to the entirety of [the R&R]” is a general objection that the Court 27 will not address. (Doc. 56 at 9). Similarly, Petitioner’s objection that the R&R “neither presents nor represents a complete, accurate, clear or fair depiction of either the primacy 28 of the claims of this Petition or in its analysis of the Record” is a general objection that the Court will not address. (Doc. 56 at 9-10). 1 iv. Objection Four: R&R “Misinforms This Court Regarding State’s Factual Knowledge and Schmidlin’s Credibility” 2 3 Petitioner objects to the R&R’s conclusion that Petitioner “fail[ed] to show or 4 proffer the essential elements of misconduct and prejudice” because the R&R did not 5 consider “the material facts tied to [the] prosecutor’s improper closing arguments.” (Doc. 6 56 at 10). 7 The Court finds that the R&R does consider the material facts surrounding the 8 prosecutor’s closing argument in its analysis of Petitioner’s Ground 1(a) and 1(c) claims. 9 The R&R thoroughly explains why these claims fail.8 (Doc. 47 at 18-19; Doc. 47 at 54- 10 55). This objection is hereby overruled. 11 v. Objection Five: “Claims of Merit” in R&R Section VI(c)(1 – 6) 12 Petitioner “fervently objects to [the R&R’s] adverse recommendations regarding” 13 the State’s misconduct, ineffective assistance of counsel, and abuse of judicial discretion. 14 (Doc. 56 at 11). Petitioner notes that he “stands firmly by the foundational merits of the 15 aforementioned claims, as put forth . . . within the Petition, the Response[,] and those 16 compl[e]mentary briefs of the Record produced for the State appellates.” (Doc. 56 at 11). 17 However, Petitioner does not offer any specific reason, aside from those raised in 18 other objections, that the R&R’s recommendations are wrong. Petitioner’s prior filings, 19 alone, may not form a basis for an objection. DeMocker v. Shinn, No. CV-22-08203-PCT- 20 JAT, 2024 WL 3466483, at *3 (D. Ariz. July 19, 2024) (finding objection in which 21 petitioner “merely incorporat[ed] his prior arguments [] insufficient to trigger de novo 22 review.”). Thus, this is not a specific objection that the Court can consider. 23 IV. Petitioner’s Sur-Reply 24 Petitioner filed a reply to Respondents’ reply to Petitioner’s objections. (Doc. 61). 25 However, a reply to the reply is not permitted under the Rules. See Fed. R. Civ. P. 7, 26 8 The R&R also discusses the prosecutor’s closing argument in its analysis of other claims, 27 e.g., in his Ground 5(a) claim regarding the trial court’s failure to declare a mistrial. However, since Petitioner made this objection in reference to “misconduct and prejudice,” 28 the Court only addresses this objection with respect to Petitioner’s Ground 1 subclaims for prosecutorial misconduct. 1 72(b)(2); LRCiv. P. 7.2. Respondents moved to strike Petitioner’s reply because it is any 2 impermissible sur-reply. (Doc. 62). While Respondents are correct that procedurally a sur- 3 reply is not permitted, the Court nonetheless considered the sur-reply and finds that it does 4 not change the outcome of this case. As a result, the motion to strike will be denied. 5 V. Petitioner’s Motion for Leave to Supplement Objections 6 Petitioner asks the Court for leave to supplement his objections. (Doc. 58). 7 Respondents responded to the motion. (Doc. 59). Petitioner replied. (Doc. 61). 8 In his objections, Petitioner noted that “due to environmental conditions of his 9 confinement, . . . [he was] only [] able to complete six (6) of the fifteen (15) claims of 10 objection he ha[d] drafted for this Court’s analysis.” (Doc. 56 at 14). In the pending motion 11 for leave, Petitioner explains that the facility he is incarcerated in was “abrubt[ly] lock[ed]- 12 down . . . for approximately thirty-six hours, beginning shortly before 8 a.m. Wednesday 13 morning, December 4, 2024.” (Doc. 58 at 2). Because of the lock-down, Petitioner “had 14 less than six hours to hand write, condense, and reorganize” his objections. (Doc. 58 at 2). 15 The R&R was issued on June 20, 2024. (Doc. 47). This Court granted Petitioner’s 16 first motion for extension of time and gave Petitioner until October 3, 2024 to file his 17 objections. (Doc. 49). In that order, the Court noted that the extension of time was 18 significant and Petitioner should not anticipate further extensions. (Doc. 49 at 1). 19 Nonetheless, the Court granted Petitioner’s second motion for an additional extension and 20 gave Petitioner until November 20, 2024 to object to the R&R. (Doc. 53). In that order, the 21 Court again noted that Petitioner had already been granted a significant extension of time 22 to file objections and that with this extension, Petitioner would have five months to file his 23 objections. (Doc. 53 at 1). Petitioner then filed a third motion for extension of time to file 24 objections. (Doc. 54). The Court granted Petitioner one last extension and set a final 25 deadline of December 4, 2024. (Doc. 55). 26 Petitioner was granted three separate time extensions. He had from June 20, 2024 27 to December 4, 2024 to work on his objections. As such, the Court is unpersuaded that a 28 36-hour lockdown beginning on the morning of the day that Petitioner’s objections were || due is cause to grant Petitioner leave to file a supplement to his objections. Petitioner’s 2 || motion is denied. 3 VI. Conclusion 4 Based on the foregoing, 5 IT IS ORDERED that the Motion to Strike (Doc. 62) the sur-reply (Doc. 61) is 6 || denied. The Motion to Deny the Motion to Strike (Doc. 63) is deemed to be a response to || the Motion to Strike and denied as procedurally improper. 8 IT IS FURTHER ORDERED that Petitioner’s Motion for Leave to Supplement || Objections (Doc. 58) is denied. 10 IT IS FURTHER ORDERED that the Report & Recommendation (Doc. 47) is 11 || accepted and adopted; the objections (Doc. 56) are overruled. The Petition in this case is 12 || denied with prejudice, and the Clerk of the Court shall enter judgment accordingly. 13 IT IS FURTHER ORDERED that a certificate of appealability is denied. Denial 14]| of this Petition is based in part on the merits and in part on procedural grounds. Reasonable 15} jurists would not find the Court’s assessment of Petitioner’s constitutional claims on the 16 || merits debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Similarly, 17 || jurists of reason would not find this Court’s procedural ruling debatable. /d. 18 Dated this 14th day of January, 2025. 19 20 A 21 James A. Teilborg 22 Senior United States District Judge 23 24 25 26 27 28

-13-