CINDY K. JORGENSON, District Judge.
On February 6, 2019, Magistrate Judge Jacqueline Rateau issued a Report and Recommendation ("R & R") (Doc. 23) in which she recommended that the Amended Petition
Additional motions filed by Arido-Sorro are pending before the Court: Rule 6 Motion for Leave of Court to Expand the Record, Rule 7(a)(b)(c), for Section 2254 Cases (Doc. 32), 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 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 Ives #49854 T.P.D.; Motion: To Vacate with a Memorandum of Understanding (Doc. 36), Motion to Support of Habeas Corpus Relief — ABA Standards for Criminal Justice (Doc. 37), Motion for Federal Question Jurisdiction Prosecution — Perjury (Doc. 38), Motion for Federal Question — Obstruction of Justice or Conspiracy (Doc. 39), Motion for Federal 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 (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 Support of Habeas Corpus Relief; Motion Vacate Conviction in Release (Doc. 44), and Request for Clarification Status, Rule 16.2(b)(4)(C) LRCiv (Doc. 45).
Additionally, after the issuance of the R & R, Arido-Sorro filed a Motion for Judicial Notice — Complete and Total Denial of Natural Justice (Doc. 47) and a Motion for Objections Recommendation for Magistrate Judge (Doc. 48). The Court accepts these documents as Arido-Sorro's Objections to the R & R.
Arido-Sorro seeks discovery regarding bar records and the deposition of defense trial counsel. Arido-Sorro also seeks to provide testimony regarding interference by the Arizona Department of Corrections with his receipt of mail regarding bar investigation findings from California and Arizona.
"A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of ordinary course." Bracy v. Gramley, 520 U.S. 899, 904 (1997). However, for good cause, a court may allow discovery in a § 2254 Proceeding. Rules Governing Section 2254 Cases 6(a). Good cause under Rule 6(a) exists "where specific allegations before the court show reason to believe that the petitioner may, if facts are fully developed, be able to demonstrate that he is. . . entitled to relief[.]" Bracy v. Gramley, 520 U.S. 899, 908-09, (1997), quoting Harris v. Nelson, 394 U.S. 286, 300 (1969). As summarized by the Ninth Circuit Court of Appeals:
Calderon v. U.S. Dist. Court for the N. Dist. of California, 98 F.3d 1102, 1106 (9th Cir. 1996), quoting Ward v. Whitley, 21 F.3d 1355, 1367 (5th Cir.1994) (footnotes omitted). Here, the information provided to the Court indicates that any disciplinary proceedings against trial defense counsel involved financial management (e.g., management of trust account and client funds) and not the substantive representation of clients. Further, although Arido-Sorro refers to the disbarment of counsel, the documentation provided to the Court indicates counsel has been censured and suspended, but not disbarred, and was in active status at the time of Arido-Sorro's proceedings. See also Calif. Bar Summary of Abrams, http://members.calbar.ca.gov/fal/Licensee/Detail/117481. Arido-Sorro has not shown how any such misconduct is relevant to whether trial defense counsel provide effective assistance to Arido-Sorro. In other words, Arido-Sorro has not made any specific allegations which provide the Court reason to believe Arido-Sorro may be entitled to relief if discovery was permitted and facts were fully developed. The Court will deny this request.
These pending motions filed by Arido-Sorro repeat and supplement the allegations and arguments made by Arido-Sorro in his habeas petition and supplemental brief. However, Arido-Sorro has not provided any reasons in the habeas petition, supplemental brief, or pending motions why the allegations and arguments presented in his habeas petition and supporting brief insufficiently present his claims. The Court will summarily deny these motions.
In his habeas petition, Arido-Sorro requested the opportunity to supplement his ineffective assistance of counsel claims. The Court accepts this motion as Arido-Sorro's supplement to this claim. The Court will grant this request to the extent it provides supplemental argument to the Court.
Arido-Sorro submits exhibits that were previously provided and submits additional exhibits. The Court accepts the submission of these documents in support of Arido-Sorro's habeas petition.
This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). Further, under 28 U.S.C. § 636(b)(1), if a party makes a timely objection to a magistrate judge's recommendation, then this Court is required to "make a de novo determination of those portions of the [report and recommendation] to which objection is made." "The objections must specifically identify those findings or recommendations to which objections are being made. Frivolous, conclusive or general objections need not be considered by the district court." Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987). To be "specific," the objection must, with particularity, identify the portions of the proposed findings, recommendations, or report to which it has an objection and the basis for the objection. See Mario v. P & C Food Markets, Inc., 313 F.3d 758, 766 (2nd Cir. 2002).
28 U.S.C. § 636(b)(1) does not "require [] some lesser review by [this Court] when no objections are filed." Thomas v. Arn, 474 U.S. 140, 149-50 (1985). Rather, this Court is not required to conduct "any review at all. . . of any issue that is not the subject of an objection." Id. at 149. Moreover, under Fed.R.Civ.P. 72(b), a district court may adopt those parts of a magistrate judge's report to which no specific objection is made, provided they are not clearly erroneous. Thomas v. Arn, 474 U.S. 140, 151-153 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1119 (9th Cir. 2003).
In this case, the Objection filed by Arioo-Sorro does not make any specific objections to the R & R. Indeed, instead of citing objections to specific portions of the R & R, Arido-Sorro merely submitted a revised version of the same arguments it presented to the Magistrate Judge. As stated by another district court:
Kenniston v. McDonald, No. 15-CV-2724-AJB-BGS, 2019 WL 2579965, at *8 (S.D. Cal. June 24, 2019).
As Arido-Sorro has not made any specific objections to the R & R, the Court will conduct an independent review of the R & R and review it for any clearly erroneous conclusions.
The Court has reviewed the R & R and finds that it is not clearly erroneous. The Court, therefore, will adopt the R & R.
However, the Court finds it appropriate to briefly discuss Arido-Sorro's claim of ineffective assistance of his Rule 32 counsel. Arido-Sorro asserts in his Brief that Rule 32 counsel impeded his right to timely file a Rule 32 petition, "precluding him from raising additional claims for relief." Brief (Doc.9, p. 3). He asserts the letter received from Rule 32 counsel was not received until after August 16, 2018, which compromised this action and the filing of a timely second Rule 32 petition. The magistrate judge considered this allegation in determining whether Arido-Sorro had established cause and prejudice to excuse the non-exhaustion of claims, but did not independently consider whether Rule 32 counsel provided ineffective assistance.
As stated by the magistrate judge, "Arido-Sorro must show both deficient performance and prejudice in order to establish that his counsel's representation was ineffective." R & R, p. 14, citing Strickland v. Washington, 466 U.S. 668 (1984). However, as discussed by the magistrate judge, Arido-Sorro has not demonstrated that trial counsel was ineffective. In other words, Arido-Sorro cannot demonstrate he was prejudiced by Rule 32 counsel's alleged impeding of Arido-Sorro's filing of a Rule 32 petition because he would not have been successful in a Rule 32 proceeding. The Court finds Arido-Sorro has failed to demonstrate he was prejudiced by Rule 32 counsel's alleged deficiency. Further, the Court finds Arido-Sorro has not shown cause and prejudice or actual innocence resulting in a miscarriage of justice would result from the lack of review. See Schlup v. Delo, 513 U.S. 298, 321 (1995).
Rule 11(a), Rules Governing Section 2254 Cases, requires that in habeas cases the "district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Such certificates are required in cases concerning detention arising "out of process issued by a State court", or in a proceeding under 28 U.S.C. § 2255 attacking a federal criminal judgment or sentence. 28 U.S.C. § 2253(c)(1). Here, the Petition is brought pursuant to 28 U.S.C. § 2254, and challenges detention pursuant to a State court judgment. This Court must determine, therefore, if a COA shall issue.
The standard for issuing a COA is whether the applicant has "made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). "When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id.; see also Robbins v. Carey, 481 F.3d 1143,1146-47 (9th Cir. 2007) (failure to object to magistrate judge's conclusions does not automatically waive appellate challenge) In the certificate, the Court must indicate which specific issues satisfy the showing. See 28 U.S.C. § 2253(c)(3).
The Court finds that jurists of reason would not find it debatable whether the Petition stated a valid claim of the denial of a constitutional right and the Court finds that jurists of reason would not find it debatable whether the district court was correct in its procedural ruling. A COA shall not issue as to Arido-Sorro's claims.
Any further request for a COA must be addressed to the Court of Appeals. See Fed. R.App. P. 22(b); Ninth Circuit R. 22-1.
Accordingly, IT IS ORDERED:
1. The Rule 6 Motion for Leave of Court to Expand the Record, Rule 7(a)(b)(c), for Section 2254 Cases (Doc. 32) is DENIED;
2. The 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 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 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 Federal Question — Obstruction of Justice or Conspiracy (Doc. 39); Motion for Federal 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 (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 Support of Habeas Corpus Relief, and; Motion Vacate Conviction in Release (Doc. 44) are DENIED.
3. Pursuant to the Request for Clarification Status, Rule 16.2(b)(4)(C) LRCiv (Doc. 45) the Court accepts the submission of the documents in support of Arido-Sorro's habeas petition.
4. The Motion for Judicial Notice — Complete and Total Denial of Natural Justice (Doc. 47) and a Motion for Objections Recommendation for Magistrate Judge (Doc. 48), accepted as Arido-Sorro's Objection to the R & R, are OVERRULED. 5. The Report and Recommendation (Doc. 46) is ADOPTED;
6. Arido-Sorro's Amended Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Doc. 10) is DENIED;
7. The Clerk of the Court shall enter judgment and shall then close its file in this matter, and;.
8. A Certificate of Appealability shall not issue in this case.
