Sorro v. Arizona, State of

• Court: District Court, D. Arizona
• Decided: January 8, 2020
• Docket: 4:18-cv-00219
• Status: Unknown

Opinion

1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 Marvin Arido-Sorro, ) 11 ) Petitioner, ) 12 ) No. CIV 18-219-TUC-CKJ (JR) vs. ) 13 ) Charles L. Ryan, et al., ) ORDER 14 ) Respondents. ) 15 ) 16 On February 6, 2019, Magistrate Judge Jacqueline Rateau issued a Report and 17 Recommendation (“R & R”) (Doc. 23) in which she recommended that the Amended 18 Petition1 Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody 19 (Doc. 10) filed by Marvin Arido-Sorro (“Arido-Sorro”) be dismissed with prejudice. Arido- 20 Sorro has filed a Motion for Objections Recommendation for Magistrate Judge (Doc. 48). 21 Respondents have not filed a Response. 22 Additional motions filed by Arido-Sorro are pending before the Court: Rule 6 Motion 23 for Leave of Court to Expand the Record, Rule 7(a)(b)(c), for Section 2254 Cases (Doc. 32), 24 Motion to Disclose Obstruction of Justice by States of Arizona Superior Court, Case No. CR 25 2015-2545 (Doc. 33), Motion to Vacate sentence (Legal and Constitutional Defenses) (Equal 26 Protection U.S. Constitution) (AEDPA Standards) (Docs. 34 and 35), Motion: Re-Disclosed 27 28 1 the First was Missing 06/20/2015; Motion: Present Fabrication Arrest Report by Detective 2 Ives #49854 T.P.D.; Motion: To Vacate with a Memorandum of Understanding (Doc. 36), 3 Motion to Support of Habeas Corpus Relief – ABA Standards for Criminal Justice (Doc. 37), 4 Motion for Federal Question Jurisdiction Prosecution – Perjury (Doc. 38), Motion for Federal 5 Question – Obstruction of Justice or Conspiracy (Doc. 39), Motion for Federal Question 6 Jurisdiction - Privacy (Doc. 40), Motion: Brady Violation; Motion: Request Rule 4A Search 7 and Seizure (3)(e)(a), in Accordance with Rule 4A; Motion: Vacate Sentence (Doc. 41), 8 Motion for Federal Question Fraudulent Concealment (Brady Violation) (Doc. 42), Motion 9 for Federal Question Right to Remain Silent 5th and 14th (Doc. 43), Motion to Support of 10 Habeas Corpus Relief; Motion Vacate Conviction in Release (Doc. 44), and Request for 11 Clarification Status, Rule 16.2(b)(4)(C) LRCiv (Doc. 45).2 12 Additionally, after the issuance of the R & R, Arido-Sorro filed a Motion for Judicial 13 Notice – Complete and Total Denial of Natural Justice (Doc. 47) and a Motion for Objections 14 Recommendation for Magistrate Judge (Doc. 48). The Court accepts these documents as 15 Arido-Sorro’s Objections to the R & R. 16 17 Rule 6 Motion for Leave of Court to Expand the Record, Rule 7(a)(b)(c), for Section 2254 Cases (Doc. 32) 18 Arido-Sorro seeks discovery regarding bar records and the deposition of defense trial 19 counsel. Arido-Sorro also seeks to provide testimony regarding interference by the Arizona 20 Department of Corrections with his receipt of mail regarding bar investigation findings from 21 California and Arizona. 22 “A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to 23 discovery as a matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997). 24 25 26 2The magistrate judge declined to address these filings as Arido-Sorro was not granted leave to submit the additional filings. While this Court agrees with the conclusion of the 27 magistrate judge, the Court will briefly discuss these motions. 28 1 However, for good cause, a court may allow discovery in a § 2254 Proceeding. Rules 2 Governing Section 2254 Cases 6(a). Good cause under Rule 6(a) exists “where specific 3 allegations before the court show reason to believe that the petitioner may, if facts are fully 4 developed, be able to demonstrate that he is . . . entitled to relief[.]” Bracy v. Gramley, 520 5 U.S. 899, 908–09, (1997), quoting Harris v. Nelson, 394 U.S. 286, 300 (1969). As 6 summarized by the Ninth Circuit Court of Appeals: 7 [F]ederal habeas court must allow discovery and an evidentiary hearing only where a factual dispute, if resolved in the petitioner's favor, would entitle him to relief . . . 8 Conclusory allegations are not enough to warrant discovery under Rule 6 . . . ; the petitioner must set forth specific allegations of fact. Rule 6 . . . does not authorize 9 fishing expeditions.”). 10 Calderon v. U.S. Dist. Court for the N. Dist. of California, 98 F.3d 1102, 1106 (9th Cir. 11 1996), quoting Ward v. Whitley, 21 F.3d 1355, 1367 (5th Cir.1994) (footnotes omitted). 12 Here, the information provided to the Court indicates that any disciplinary proceedings 13 against trial defense counsel involved financial management (e.g, management of trust 14 account and client funds) and not the substantive representation of clients. Further, although 15 Arido-Sorro refers to the disbarment of counsel, the documentation provided to the Court 16 indicates counsel has been censured and suspended, but not disbarred, and was in active 17 status at the time of Arido-Sorro’s proceedings. See also Calif. Bar Summary of Abrams, 18 http://members.calbar.ca.gov/fal/Licensee/Detail/117481. Arido-Sorro has not shown how 19 any such misconduct is relevant to whether trial defense counsel provide effective assistance 20 to Arido-Sorro. In other words, Arido-Sorro has not made any specific allegations which 21 provide the Court reason to believe Arido-Sorro may be entitled to relief if discovery was 22 permitted and facts were fully developed. The Court will deny this request. 23 24 Motion to Disclose Obstruction of Justice by States of Arizona Superior Court, Case No. CR 2015-2545 (Doc. 33), Motion to Vacate sentence (Legal and Constitutional Defenses) (Equal 25 Protection U.S. Constitution) (AEDPA Standards) (Docs. 34 and 35); Motion: Re-Disclosed the First was Missing 06/20/2015; Motion: Present Fabrication Arrest Report by Detective 26 Ives #49854 T.P.D.; Motion: To Vacate with a Memorandum of Understanding (Doc. 36), Motion for Federal Question Jurisdiction Prosecution – Perjury (Doc. 38); Motion for 27 Federal Question – Obstruction of Justice or Conspiracy (Doc. 39); Motion for Federal 28 1 Question Jurisdiction - Privacy (Doc. 40); Motion: Brady Violation; Motion: Request Rule 4A Search and Seizure (3)(e)(a), in Accordance with Rule 4A; Motion: Vacate Sentence 2 (Doc. 41); Motion for Federal Question Fraudulent Concealment (Brady Violation) (Doc. 42); Motion for Federal Question Right to Remain Silent 5th and 14th (Doc. 43); Motion to 3 Support of Habeas Corpus Relief; Motion Vacate Conviction in Release (Doc. 44) 4 These pending motions filed by Arido-Sorro repeat and supplement the allegations 5 and arguments made by Arido-Sorro in his habeas petition and supplemental brief. However, 6 Arido-Sorro has not provided any reasons in the habeas petition, supplemental brief, or 7 pending motions why the allegations and arguments presented in his habeas petition and 8 supporting brief insufficiently present his claims. The Court will summarily deny these 9 motions. 10 11 Motion to Support of Habeas Corpus Relief – ABA Standards for Criminal Justice (Doc. 37) 12 In his habeas petition, Arido-Sorro requested the opportunity to supplement his 13 ineffective assistance of counsel claims. The Court accepts this motion as Arido-Sorro’s 14 supplement to this claim. The Court will grant this request to the extent it provides 15 supplemental argument to the Court. 16 17 Request for Clarification Status, Rule 16.2(b)(4)(C) LRCiv (Doc. 45) 18 Arido-Sorro submits exhibits that were previously provided and submits additional 19 exhibits. The Court accepts the submission of these documents in support of Arido-Sorro’s 20 habeas petition. 21 22 Report and Recommendation 23 This Court “may accept, reject, or modify, in whole or in part, the findings or 24 recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). Further, under 28 U.S.C. 25 § 636(b)(1), if a party makes a timely objection to a magistrate judge's recommendation, then 26 this Court is required to “make a de novo determination of those portions of the [report and 27 recommendation] to which objection is made.” “The objections must specifically identify 28 1 those findings or recommendations to which objections are being made. Frivolous, 2 conclusive or general objections need not be considered by the district court.” Battle v. U.S. 3 Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987). To be “specific,” the objection must, 4 with particularity, identify the portions of the proposed findings, recommendations, or report 5 to which it has an objection and the basis for the objection. See Mario v. P & C Food 6 Markets, Inc., 313 F.3d 758, 766 (2nd Cir. 2002). 7 28 U.S.C. § 636(b)(1) does not “require [] some lesser review by [this Court] when 8 no objections are filed.” Thomas v. Arn, 474 U.S. 140, 149-50 (1985). Rather, this Court 9 is not required to conduct “any review at all . . . of any issue that is not the subject of an 10 objection.” Id. at 149. Moreover, under Fed.R.Civ.P. 72(b), a district court may adopt those 11 parts of a magistrate judge's report to which no specific objection is made, provided they are 12 not clearly erroneous. Thomas v. Arn, 474 U.S. 140, 151-153 (1985); United States v. 13 Reyna-Tapia, 328 F.3d 1114, 1119 (9th Cir. 2003). 14 In this case, the Objection filed by Arioo-Sorro does not make any specific objections 15 to the R & R. Indeed, instead of citing objections to specific portions of the R & R, Arido- 16 Sorro merely submitted a revised version of the same arguments it presented to the 17 Magistrate Judge. As stated by another district court: 18 This . . . is an improper attempt to rehash his entire argument and have this Court conduct a duplicative review where nearly every issue presented to the Magistrate 19 Judge was raised for a second time on objection. Camardo v. Gen. Motors Hourly-Rate Employees Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992) 20 (“parties are not to be afforded a ‘second bite at the apple’ when they file objections to a Report and Recommendation, as the ‘goal of the federal statute providing for the 21 assignment of cases to magistrates is to ‘increas[e] the overall efficiency of the federal judiciary.’’” (quoting McCarthy v. Manson, 554 F. Supp. 1275, 1286 (D. Conn. 22 1982))). 23 Kenniston v. McDonald, No. 15-CV-2724-AJB-BGS, 2019 WL 2579965, at *8 (S.D. Cal. 24 June 24, 2019). 25 As Arido-Sorro has not made any specific objections to the R & R, the Court will 26 conduct an independent review of the R & R and review it for any clearly erroneous 27 conclusions. 28 1 Review of Report and Recommendation 2 The Court has reviewed the R & R and finds that it is not clearly erroneous. The 3 Court, therefore, will adopt the R & R. 4 However, the Court finds it appropriate to briefly discuss Arido-Sorro’s claim of 5 ineffective assistance of his Rule 32 counsel. Arido-Sorro asserts in his Brief that Rule 32 6 counsel impeded his right to timely file a Rule 32 petition, “precluding him from raising 7 additional claims for relief.” Brief (Doc.9, p. 3). He asserts the letter received from Rule 32 8 counsel was not received until after August 16, 2018, which compromised this action and the 9 filing of a timely second Rule 32 petition. The magistrate judge considered this allegation 10 in determining whether Arido-Sorro had established cause and prejudice to excuse the non- 11 exhaustion of claims, but did not independently consider whether Rule 32 counsel provided 12 ineffective assistance. 13 As stated by the magistrate judge, “Arido-Sorro must show both deficient 14 performance and prejudice in order to establish that his counsel’s representation was 15 ineffective.” R & R, p. 14, citing Strickland v. Washington, 466 U.S. 668 (1984). However, 16 as discussed by the magistrate judge, Arido-Sorro has not demonstrated that trial counsel was 17 ineffective. In other words, Arido-Sorro cannot demonstrate he was prejudiced by Rule 32 18 counsel’s alleged impeding of Arido-Sorro’s filing of a Rule 32 petition because he would 19 not have been successful in a Rule 32 proceeding. The Court finds Arido-Sorro has failed 20 to demonstrate he was prejudiced by Rule 32 counsel’s alleged deficiency. Further, the 21 Court finds Arido-Sorro has not shown cause and prejudice or actual innocence resulting in 22 a miscarriage of justice would result from the lack of review. See Schlup v. Delo, 513 U.S. 23 298, 321 (1995). 24 25 Certificate of Appealability (“COA”) 26 Rule 11(a), Rules Governing Section 2254 Cases, requires that in habeas cases the 27 “district court must issue or deny a certificate of appealability when it enters a final order 28 1 adverse to the applicant.” Such certificates are required in cases concerning detention arising 2 “out of process issued by a State court”, or in a proceeding under 28 U.S.C. § 2255 attacking 3 a federal criminal judgment or sentence. 28 U.S.C. § 2253(c)(1). Here, the Petition is 4 brought pursuant to 28 U.S.C. § 2254, and challenges detention pursuant to a State court 5 judgment. This Court must determine, therefore, if a COA shall issue. 6 The standard for issuing a COA is whether the applicant has “made a substantial 7 showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district 8 court has rejected the constitutional claims on the merits, the showing required to satisfy § 9 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would 10 find the district court's assessment of the constitutional claims debatable or wrong.” Slack 11 v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “When the district 12 court denies a habeas petition on procedural grounds without reaching the prisoner's 13 underlying constitutional claim, a COA should issue when the prisoner shows, at least, that 14 jurists of reason would find it debatable whether the petition states a valid claim of the denial 15 of a constitutional right and that jurists of reason would find it debatable whether the district 16 court was correct in its procedural ruling.” Id.; see also Robbins v. Carey, 481 F.3d 17 1143,1146-47 (9th Cir. 2007) (failure to object to magistrate judge’s conclusions does not 18 automatically waive appellate challenge) In the certificate, the Court must indicate which 19 specific issues satisfy the showing. See 28 U.S.C. § 2253(c)(3). 20 The Court finds that jurists of reason would not find it debatable whether the Petition 21 stated a valid claim of the denial of a constitutional right and the Court finds that jurists of 22 reason would not find it debatable whether the district court was correct in its procedural 23 ruling. A COA shall not issue as to Arido-Sorro’s claims. 24 Any further request for a COA must be addressed to the Court of Appeals. See Fed. 25 R.App. P. 22(b); Ninth Circuit R. 22-1. 26 27 28 1 Accordingly, IT IS ORDERED: 2 1. The Rule 6 Motion for Leave of Court to Expand the Record, Rule 7(a)(b)(c), 3 for Section 2254 Cases (Doc. 32) is DENIED; 4 2. The Motion to Disclose Obstruction of Justice by States of Arizona Superior 5 Court, Case No. CR 2015-2545 (Doc. 33), Motion to Vacate sentence (Legal and 6 Constitutional Defenses) (Equal Protection U.S. Constitution) (AEDPA Standards) (Docs. 7 34 and 35); Motion: Re-Disclosed the First was Missing 06/20/2015; Motion: Present 8 Fabrication Arrest Report by Detective Ives #49854 T.P.D.; Motion: To Vacate with a 9 Memorandum of Understanding (Doc. 36), Motion for Federal Question Jurisdiction 10 Prosecution – Perjury (Doc. 38); Motion for Federal Question – Obstruction of Justice or 11 Conspiracy (Doc. 39); Motion for Federal Question Jurisdiction - Privacy (Doc. 40); Motion: 12 Brady Violation; Motion: Request Rule 4A Search and Seizure (3)(e)(a), in Accordance with 13 Rule 4A; Motion: Vacate Sentence (Doc. 41); Motion for Federal Question Fraudulent 14 Concealment (Brady Violation) (Doc. 42); Motion for Federal Question Right to Remain 15 Silent 5th and 14th (Doc. 43); Motion to Support of Habeas Corpus Relief, and; Motion 16 Vacate Conviction in Release (Doc. 44) are DENIED. 17 3. Pursuant to the Request for Clarification Status, Rule 16.2(b)(4)(C) LRCiv 18 (Doc. 45) the Court accepts the submission of the documents in support of Arido-Sorro's 19 habeas petition. 20 4. The Motion for Judicial Notice – Complete and Total Denial of Natural Justice 21 (Doc. 47) and a Motion for Objections Recommendation for Magistrate Judge (Doc. 48), 22 accepted as Arido-Sorro’s Objection to the R & R, are OVERRULED. 23 5. The Report and Recommendation (Doc. 46) is ADOPTED; 24 6. Arido-Sorro’s Amended Petition under 28 U.S.C. § 2254 for a Writ of Habeas 25 Corpus by a Person in State Custody (Doc. 10) is DENIED; 26 7. The Clerk of the Court shall enter judgment and shall then close its file in this 27 matter, and;. 28 1 8. A Certificate of Appealability shall not issue in this case. 2 DATED this 7" day of January, 2020. La KO c Jon 5 Cindy K. Jor§énso ‘ United States District Judge 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _9-