Tull v. Shinn

• Court: District Court, D. Arizona
• Decided: August 20, 2021
• Docket: 2:19-cv-05909
• Status: Unknown

Opinion

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

9 Conrad Anthony Tull, No. CV-19-05909-PHX-JJT (ESW)

10 Petitioner, ORDER

11 v.

12 David Shinn, et al.,

13 Respondents. 14 15 With the assistance of counsel, Petitioner initiated this matter on December 30, 16 2019, by filing a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) 17 In the Petition he raised three grounds that appeared to be exhausted: 1) trial court error in 18 allowing dual juries; 2) trial court error in allowing inaccurate translations of intercepted 19 telephonic communications; and 3) prosecutorial misconduct in the form of vouching.1 20 Thereafter, on February 10, 2020, Petitioner filed pro se a Motion to Stay Habeas 21 Proceedings. (Doc. 11.)2 Petitioner urged the Court to stay his habeas matter as he had filed 22 a second Notice and Petition for Post-Conviction Relief in the Arizona state court five days 23 prior, (Doc. 18 at 7) and sought to exhaust new and additional claims before the state court 24 so he could raise them in his habeas action before this Court without procedural default.

25 1 Petitioner raised these three assigned errors in his direct appeal to the Arizona state Court of Appeals. (Doc. 19-1 at 49-50.) The Court of Appeals rejected the arguments on the 26 merits. (Doc. 19-1 at 72-80.) Petitioner thereafter filed a Notice to initiate Rule 32 Post- Conviction Relief proceedings with the state trial court, which dismissed the notice on 27 procedural grounds as untimely. (Doc. 19-1 at 92-95.)

28 2 The following day, Petitioner’s counsel filed a Motion to Withdraw, citing a conflict of interest in continuing her representation of Petitioner. (Doc. 12.) 1 (Doc. 11 at 2.) The magistrate judge denied the Motion without discussion. (Doc. 17.) 2 Petitioner thereafter filed pro se a Motion for the magistrate judge to reconsider her Order 3 (Doc. 18), which the magistrate judge also denied, this time with some analysis and 4 discussion. (Doc. 20.) 5 Upon completion of briefing, the magistrate judge issued a Report and 6 Recommendation (Doc. 24, “R&R”) recommending the Court dismiss the Petition as 7 untimely. The Court considered the R&R, Petitioner’s Objections thereto (Doc. 27) and 8 Respondents’ Reply (Doc. 28), overruled the Objections, adopted the R&R and dismissed 9 the Petition as untimely. (Doc. 30.) On appeal, The Ninth Circuit remanded this matter with 10 direction to this Court to consider whether the magistrate judge exceeded her authority in 11 adjudicating Petitioner’s Motion for Stay without the consent of the parties. (Doc. 39-1.) 12 Magistrate judges may hear and determine non-dispositive matters, but not 13 dispositive matters, in Section 2254 proceedings. Hunt v. Pliler, 384 F.3d 1118, 1123 (9th 14 Cir. 2004). And “where the denial of a motion to stay is effectively a denial of the ultimate 15 relief sought, such a motion is considered dispositive, and a magistrate judge lacks the 16 authority to ‘determine’ the matter.” Mitchell v. Valenzuela, 791 F.3d 1166, 1170 (9th Cir. 17 2015) (internal citations omitted). The Ninth Circuit in Valenzuela concluded, on operative 18 facts very similar to those in the instant case, that denial of a stay is dispositive. 19 After the state court affirmed his convictions and sentence on appeal, Mitchell 20 ultimately filed a habeas petition with the district court pursuant to 28 U.S.C. § 2254 stating 21 five grounds, only three of which he had raised to the state court and were thus deemed 22 exhausted. 791 F.3d at 1167. In response to a motion to dismiss either the entire petition or 23 the two unexhausted claims, Mitchell sought to stay the habeas proceedings in the district 24 court while he returned to the state to exhaust the two unexhausted claims. Id. The 25 magistrate judge denied the motion to stay and Mitchell ultimately amended his petition to 26 eliminate the unexhausted claims. Id. The magistrate judge then issued an R&R 27 recommending denial of relief on the remaining exhausted claims, and after considering 28 1 Mitchell’s objections, the district court adopted the R&R and dismissed the petition with 2 prejudice. Id. at 1168. 3 As the Ninth Circuit concluded under those facts in Valenzuela, the Court finds here 4 that the denial of the stay in this matter was “tantamount to a dismissal of the unexhausted 5 claims.” Id. at 1170 (cleaned up). Like the petitioner in Mitchell, Petitioner here would be 6 unable to return to this Court to assert his unexhausted claims without a stay. Thus the 7 magistrate judge’s denial of the stay Petitioner sought was dispositive as to those 8 unexhausted claims, within the meaning of Valenzuela. See also Bastidas v. Chappell, 791 9 F.3d 1155, 1163 (9th Cir. 2015)(“Mitchell’s rule applies with equal force to a magistrate 10 judge’s denial of a stay to exhaust a claim “that was not already part of his federal habeas 11 petition.”). The magistrate judge in this matter thus lacked authority to determine the 12 motion. 13 The Court observes that its ruling does not mean the magistrate judge’s analysis of 14 the applicable law, and her conclusion that the stay was not justified is necessarily 15 incorrect. Her conclusion ultimately may prove correct, or not. But as a preliminary matter, 16 the limitations Congress has placed on the authority of magistrate judges in 28 U.S.C. 17 § 636, as clarified by our circuit court in Valenzuela and Bastidas, preclude the magistrate 18 judge from reaching this issue—it must be addressed de novo by an Article III judicial 19 officer. 20 The Court thus will treat the magistrate judge’s Order denying Petitioner’s Motion 21 for Reconsideration (Doc. 20) as an R&R on the issue, and allow Petitioner the opportunity 22 to file objections and Respondents the opportunity to respond to them. The Court then will 23 evaluate the Motion to Stay de novo. 24 The parties shall have 14 days from the date of service of a copy of this Order within 25 which to file specific written objections to the magistrate judge’s Order found at Doc. 20. 26 See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72(b). Thereafter, the parties have 14 days 27 within which to file any response to the objections. Failure to timely file objections to the 28 Order the Court is treating as the magistrate judge’s R&R may result in this Court accepting || the R&R without further review. See United States v. Renya-Tapia, 328 F.3d 1114, 1121 2|| (9th Cir. 2003). And failure to file timely objections to any factual determinations of the || magistrate judge may be considered a waiver of a party’s right to appellate review of the 4|| findings of fact in an order or judgment entered pursuant to the magistrate judge’s || recommendation. See Fed. R. Civ. P. 72. 6 Dated this 20th day of August, 2021. CN

Unifga StatesDistrict Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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