REPORT AND RECOMMENDATION

DEBORAH M. FINE, Magistrate Judge.

TO THE HONORABLE G. MURRAY SNOW, CHIEF U.S. DISTRICT JUDGE:

This matter is on referral to the undersigned pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a report and recommendation. David Anthony Valdez ("Petitioner") filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("Petition") on November 22, 20181 (Doc. 1 at 11)2. Respondents filed their Limited Response on February 28, 2019. (Doc. 9) Petitioner did not file a Reply. As is explained below, the undersigned Magistrate Judge recommends that the Petition be dismissed with prejudice because the Petition was not timely filed and is otherwise procedurally defaulted.

I. BACKGROUND

A. Petitioner's indictment, plea agreement, and sentence

A Maricopa County Superior Court grand jury charged Petitioner under eleven counts in an indictment dated June 1, 2015. Count 1 alleged misconduct involving weapons, a Class 4 felony; Counts 2, 4, 5 and 6 alleged aggravated assault, Class 2 and 3 felonies; Count 3 alleged assault, a Class 1 misdemeanor; Counts 7, 8 and 9 alleged attempts to commit kidnapping, Class 3 felonies; and Counts 10 and 11 alleged disorderly conduct, Class 6 felonies. (Doc. 9-1 at 3-7)

On October 19, 2015, the superior court conducted a settlement conference (Doc. 9-1 at 98), followed by a change of plea hearing on November 25, 2015 (Id. at 101-115). Petitioner entered a plea agreement under which he pleaded guilty to three charges: amended Count 2, charging aggravated assault, a Class 3 non-dangerous felony and domestic violence offense; amended Count 4, aggravated assault; and Count 10, disorderly conduct with a weapon, a Class 6 designated felony. (Id. at 10, 104, 113) The agreement stipulated that Petitioner would be sentenced to 8.75 years imprisonment on Count 4 and to 3 years imprisonment on Count 10, to run consecutively. (Id. at 107) The agreement further stipulated that on Count 2, Petitioner would be sentenced to supervised probation with domestic violence terms following Petitioner's service of his consecutive imprisonment sentences on Counts 4 and 10. (Id.)

Petitioner was sentenced on March 22, 2016, consistent with the stipulated sentences within the plea agreement. (Id. at 118-133) The court dismissed the remaining counts charged in the indictment. (Id. at 132)

B. Petitioner's Rule 32 post-conviction relief action

Petitioner timely filed a Notice of Post-Conviction Relief ("PCR") in May 2016. (Doc. 9-1 at 36-38) He indicated he was raising a claim of ineffective assistance of counsel. (Id. at 37) Petitioner was appointed counsel. (Id. at 40-41) Appointed counsel filed a Notice of Completion of Post-Conviction Review by Counsel and advised the superior court that she had been unable to identify any claims for relief. (Id. at 43-44) Counsel also moved for a 45-day extension to permit Petitioner to file a pro per petition. (Id. at 43) The superior court gave Petitioner until December 30, 2016 to file a pro per petition. (Id. at 47-48) On February 6, 2017, the superior court filed an order dismissing Petitioner's PCR proceeding for his failure to timely file a pro per petition or request an extension from the court. (Id. at 50) Petitioner did not appeal this order. (Id. at 56)

More than one year later, in May 2018, Petitioner filed a subsequent Notice of Request for Post-Conviction Relief, again indicating he was raising a claim of ineffective assistance of counsel and explaining that the reason for his failure to file a timely PCR petition was that he had been "informed that [he] did not have a colorful claim to proceed." (Id. at 54) He stated that "[a]fter some legal investigation I find this is not . . . true." (Id.) Petitioner indicated his untimely notice was not his fault and excusable pursuant to Arizona Rule of Criminal Procedure 32.1(f). (Id. at 53-54) He informed the superior court he did not seek to have his conviction overturned but was requesting a reduction in his sentence and probation period. (Id.)

The superior court dismissed Petitioner's Notice of Request for Post-Conviction Relief pursuant to Arizona Rule of Criminal Procedure 32.2(b). This rule identifies limited exceptions to the preclusive effect of Rule 32.2(a), as pertinent here, requiring preclusion of grounds that were waived in a previous collateral proceeding. Ariz. R. Crim. P. 32.2(a)(3). These exceptions are set forth in Ariz. R. Crim. P. 32.1(d) through (h), and include under subsection (d), circumstances where: a defendant is retained in custody after his sentence has expired; under subsection (e), newly-discovered material facts "probably exist and those facts probably would have changed the verdict or sentence"; under subsection (f), the defendant was not at fault for his failure to file a timely notice of PCR of right; under subsection (g), there had been a "significant change in the law that, if applied to the defendant's case, would probably overturn the defendant's conviction or sentence"; or under subsection (h), a defendant can demonstrate by clear and convincing evidence that "the facts underlying the claim would be sufficient to establish that no reasonable fact-finder would find the defendant guilty beyond a reasonable doubt."

The superior court first noted that under Arizona law, a defendant is permitted to file a second notice of post-conviction relief aimed at challenging the effectiveness of PCR counsel, but that the notice was required to be filed within 30 days of the final order. (Id. at 57, citing Ariz. R. Crim. P. 32.4(a)(2)(C)). The court determined that the deadline to file such a second notice had been March 8, 2017, and found that Petitioner's notice was untimely by over one year. (Id.) The court rejected Petitioner's argument that the untimeliness was without fault on his part and declined to grant relief under Arizona Rule of Criminal Procedure 32.1(f) because Petitioner had not adequately explained why it took him more than a year to file the PCR proceeding. (Id.) As to Petitioner's statement that he was informed that he did not have a colorful claim to proceed and that legal investigation revealed this to be untrue, the court stated that Petitioner did "not identify who told him" that "he had no colorable Rule 32 claims" and that the Notice of Completion by PCR counsel was "insufficient to support a Rule 32.1(f) claim." (Id.)

The superior court proceeded to note that Petitioner also had requested relief pursuant to Arizona Rule of Criminal Procedure 32.1(a), permitting relief where a defendant's "conviction was obtained or the sentence was imposed in violation of the United States or Arizona constitutions." (Id., citing Ariz. R. Crim. P. 32.1(a)). The court found that Petitioner did not identify which counsel, plea or PCR counsel, or both, he was referring to. (Id.) The court determined that Petitioner could not raise an untimely ineffective assistance of counsel claim because such a claim was not exempted from preclusion under Rule 32.1(d)-(h). (Id.) Further, the court concluded that any claims against plea counsel were precluded because Petitioner could have raised such a claim in his initial PCR action but did not. (Id.)

Petitioner filed a petition for review of the superior court's dismissal of his second notice of PCR with the Arizona Court of Appeals. (Id. at 60-63) The court of appeals granted review but denied relief. (Id. at 65-66) The court of appeals held that Petitioner had failed to establish the superior court had abused its discretion in dismissing the second PCR action. (Id. at 66)

C. Petitioner's habeas claim

Petitioner asserts a single ground for relief: that he received ineffective assistance of counsel in violation of the Sixth Amendment. (Doc. 1 at 6-7) He states that trial counsel failed to provide him with a "strategic defense," neglected to investigate the arrest report "because the Petitioner was so intoxicated he could not remember being read his Miranda rights or what was discussed in his preliminary arrest interview." (Id. at 6) He also declares his trial counsel did not investigate the toxicology report resulting when he was allegedly forced to give a blood sample against his will. (Id.) Additionally, Petitioner argues his counsel was ineffective for failing to advise him of "important issues such as the deportation consequences of signing the plea agreement and pleading guilty." (Id. at 7) The Petitioner does not request that his convictions be overturned; rather, the Petitioner solely requests that "without overturning the conviction," the Court order his two consecutive terms to run concurrently or "consider a time reduction on the greater sentence." (Id. at 11)

Respondents assert that the Petition is untimely and the single ground raised is procedurally defaulted. (Doc. 9)

II. DISCUSSION

A. Petitioner's claims are time-barred

A threshold issue for the Court is whether the habeas petition is barred by the statute of limitations. The time-bar issue must be resolved before considering other procedural issues or the merits of any habeas claim. See White v. Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2002). The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs Petitioner's habeas petition because he filed it after April 24, 1996, the effective date of the AEDPA. Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001) (citing Smith v. Robbins, 528 U.S. 259, 267 n.3 (2000)).

1. Limitations period

The AEDPA provides for a one-year statute of limitations for all applications for writs of habeas corpus filed pursuant to 28 U.S.C. § 2254. The limitations period generally begins to run on "the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). Here, after appointed counsel filed a Notice of Completion of Post-Conviction Review and the superior court gave Petitioner until December 30, 2016 to file a pro per petition, Petitioner failed to file his petition. (Id. at 47-48) As noted, on February 6, 2017, the superior court filed an order dismissing Petitioner's PCR proceeding and Petitioner did not appeal this order. (Id. at 50, 56) Pursuant to Arizona Rule of Criminal Procedure 32.9(c)(1)(A), a petitioner has 30 days after entry of the trial court's final decision on a Rule 32 petition to "petition the appropriate appellate court for review of the decision." Ariz. R. Crim. P. 32.9(c)(1)(A). After adding five days pursuant to Arizona Rule of Criminal Procedure 1.3(a) for mailing3, Petitioner's deadline for filing a petition for review of the trial court's order with the court of appeals was March 13, 2017. Accordingly, after Petitioner failed to file a petition for review, the superior court's decision on his PCR proceeding became final for section 2244(d) purposes on March 13, 2017.

"AEDPA's one-year statute of limitations does not begin to run until the conclusion of the Rule 32 of-right proceeding, or until the expiration of the time for seeking such proceeding or review." Summers v. Schriro, 481 F.3d 710, 711 (9th Cir. 2007). AEDPA's one-year statute of limitations began to run on March 14, 2017, and expired one year later, on March 13, 2018. Patterson v. Stewart, 251 F.3d 1243, 1247 (9th Cir. 2001). Absent statutory or equitable tolling, Petitioner's section 2244(d)(1) one-year limitations period expired on March 13, 2018. As noted, Petitioner did not file the Petition until November 22, 2018, more than eight months after the statute of limitations expired. (Doc. 1 at 11)

2. Statutory Tolling

The AEDPA provides for tolling of the limitations period when a "properly filed application for State post-conviction or other collateral relief with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). A state PCR petition not filed within the state's required time limit, however, is not "properly filed," and the petitioner is not entitled to statutory tolling during those proceedings. Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) ("When a post-conviction petition is untimely under state law, `that [is] the end of the matter' for purposes of § 2244(d)(2)."); Allen v. Siebert, 552 U.S. 3, 6 (2007) (finding that inmate's untimely state post-conviction petition was not "properly filed" under the AEDPA's tolling provision, and reiterating its holding in Pace, 544 U.S. at 414). Once the AEDPA limitations period expires, a subsequently filed state post-conviction proceeding cannot restart the statute of limitations. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (noting that the limitations period is not reinstated by applications for state post-conviction relief filed after expiration of the AEDPA statute of limitations). "A state-court petition . . . that is filed following the expiration of the limitations period cannot toll that period because there is no period remaining to be tolled." Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000). Further, a second PCR proceeding that is deemed untimely does not toll the time between the first and second PCR proceedings. Hemmerle v. Schriro, 495 F.3d 1069, 1075 (9th Cir. 2007).

As noted, Petitioner filed a subsequent notice of request for post-conviction relief in May 2018. (Doc. 9-1 at 52-54) The superior court dismissed this proceeding as untimely, without excuse. (Id. at 56-58) On petition for review, the court of appeals granted review but denied relief. (Id. at 65-66) Because the AEDPA limitations had expired on March 13, 2018, this subsequent PCR action had no statutory tolling effect. As a result, the November 22, 2018 Petition (Doc. 1) is untimely unless equitable tolling applies.

3. Equitable tolling

The AEDPA limitations period may be equitably tolled because it is a statute of limitations, not a jurisdictional bar. See Holland v. Florida, 560 U.S. 631, 645-46 (2010). However, for equitable tolling to apply, a petitioner must show "(1) that he has been pursuing his rights diligently and (2) that some extraordinary circumstances stood in his way" to prevent him from timely filing a federal habeas petition. Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). "The diligence required for equitable tolling purposes is reasonable diligence, not maximum feasible diligence." Holland, 560 U.S. at 653 (internal citations and quotations omitted).

Whether to apply the doctrine of equitable tolling "`is highly fact-dependent,' and [the petitioner] `bears the burden of showing that equitable tolling is appropriate.'" Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005) (internal citations omitted); see also Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (stating that equitable tolling is "unavailable in most cases," and "the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule") (citations and internal emphasis omitted). Petitioner must also establish a "causal connection" between the extraordinary circumstance and his failure to file a timely petition. See Bryant v. Arizona Attorney General, 499 F.3d 1056, 1060 (9th Cir. 2007).

A petitioner's pro se status, indigence, limited legal resources, ignorance of the law, or lack of representation during the applicable filing period do not constitute extraordinary circumstances justifying equitable tolling. See, e.g., Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) ("[A] pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling."); see also Ballesteros v. Schriro, CIV-06-675-PHX-EHC (MEA), 2007 WL 666927, at *5 (D. Ariz. Feb. 26, 2007) (a petitioner's pro se status, ignorance of the law, lack of representation during the applicable filing period, and temporary incapacity do not constitute extraordinary circumstances). Further, a prisoner's "proceeding pro se is not a `rare and exceptional' circumstance because it is typical of those bringing a § 2254 claim." Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000).

Petitioner does not assert or argue any grounds for the application of equitable tolling to excuse his untimely petition. Instead, he recognizes that "[t]he nature of the system would make it untimely." (Doc. 1 at 11) He merely states without argument that his circumstance presents "a question of justice versus timeliness." (Id.) Accordingly, Petitioner has failed to meet his burden of showing extraordinary circumstances or reasonable diligence that would justify equitable tolling. Additionally, the record does not reveal any extraordinary circumstances that prevented Petitioner from filing a timely federal habeas corpus petition.

B. Petitioner's claim is procedurally defaulted, without excuse

Respondents argue Petitioner failed to exhaust his claim because he did not properly present the claim to either the trial court or the Arizona Court of Appeals. (Doc. 9 at 11-18) For the reasons set forth below, the undersigned agrees.

A state prisoner must properly exhaust all state court remedies before this Court may grant an application for a writ of habeas corpus. 28 U.S.C. § 2254(b)(1), (c); Duncan v. Henry, 513 U.S. 364, 365 (1995); Coleman v. Thompson, 501 U.S. 722, 731 (1991). Arizona prisoners properly exhaust state remedies by fairly presenting claims to the Arizona Court of Appeals in a procedurally appropriate manner. O'Sullivan v. Boerckel, 526 U.S. 838, 843-45 (1999); Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999). Arizona's "established appellate review processes" consist of a direct appeal and a PCR proceeding. See Ariz. R. Crim. P. 31, et. seq. and Rule 32, et. seq.; see also Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994) ("To exhaust one's state court remedies in Arizona, a petitioner must first raise the claim in a direct appeal or collaterally attack his conviction in a petition for post-conviction relief pursuant to Rule 32."). Proper exhaustion of a claim requires state prisoners to "give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan, 526 U.S. at 845.

To be fairly presented, a claim must include a statement of the operative facts and the specific federal legal theory. Baldwin v. Reese, 541 U.S. 27, 32-33 (2004); Gray v. Netherland, 518 U.S. 152, 162-63 (1996); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) ("The mere similarity between a claim of state and federal error is insufficient to establish exhaustion.").

A claim can also be subject to an express or implied procedural bar. Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). An express procedural bar exists if the state court denies or dismisses a claim based on a procedural bar "that is both `independent' of the merits of the federal claim and an `adequate' basis for the court's decision." Harris v. Reed, 489 U.S. 255, 260 (1989); Stewart v. Smith, 536 U.S. 856, 860 (2002) (Arizona's "Rule 32.2(a)(3) determinations are independent of federal law because they do not depend upon a federal constitutional ruling on the merits"); Johnson v. Mississippi, 486 U.S. 578, 587 (1988) ("adequate" grounds exist when a state strictly or regularly follows its procedural rule). An implied procedural bar exists if a claim was not fairly presented in state court and no state remedies remain available to the petitioner. Teague v. Lane, 489 U.S. 288, 298-99 (1989); Rose v. Lundy, 455 U.S. 509, 519-20 (1982); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002).

This Court may review a procedurally defaulted claim if the petitioner can demonstrate either: (1) cause for the default and actual prejudice to excuse the default, or (2) a miscarriage of justice/actual innocence. 28 U.S.C. § 2254(c)(2)(B); Schlup v. Delo, 513 U.S. 298, 321 (1995); Coleman, 501 U.S. at 750; Murray v. Carrier, 477 U.S. 478, 495-96 (1986). "Cause" is something that "cannot be fairly attributable" to a petitioner, and a petitioner must show that this "objective factor external to the defense impeded [his] efforts to comply with the State's procedural rule." Coleman, 501 U.S. at 753 (citation and internal quotation marks omitted). To establish prejudice a "habeas petitioner must show `not merely that the errors at ... trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'" Murray, 477 U.S. at 494 (quoting United States v. Frady, 456 U.S. 152, 170) (1982)) (emphasis in original). "Such a showing of pervasive actual prejudice can hardly be thought to constitute anything other than a showing that the prisoner was denied `fundamental fairness' at trial." Id.

The miscarriage of justice exception to procedural default "is limited to those extraordinary cases where the petitioner asserts his [actual] innocence and establishes that the court cannot have confidence in the contrary finding of guilt." Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir. 2008) (emphasis in original). To pass through the actual innocence/Schlup gateway, a petitioner must establish his or her factual innocence of the crime and not mere legal insufficiency. See Bousley v. U.S., 523 U.S. 614, 623 (1998); Jaramillo v. Stewart, 340 F.3d 877, 882-83 (9th Cir. 2003). A petitioner "must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." McQuiggin v. Perkins, 569 U.S. 383, 399 (2013) (quoting Schlup, 513 U.S. at 327). "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence." Schlup, 513 U.S. at 324. See also Lee v. Lampert, 653 F.3d 929, 945 (9th Cir. 2011); McQuiggin, 569 U.S. at 399 (2013) (explaining the significance of an "[u]nexplained delay in presenting new evidence"). Because of "the rarity of such evidence, in virtually every case, the allegation of actual innocence has been summarily rejected." Shumway v. Payne, 223 F.3d 982, 990 (9th Cir. 2000) (citing Calderon v. Thomas, 523 U.S. 538, 559 (1998)).

Petitioner did not exhaust the claim he now asserts in this Court because he did not properly raise it in his initial PCR proceeding. In his May 2016 notice of PCR, he merely indicated he would be raising a claim of ineffective assistance of counsel. (Id. at 37) Because Petitioner failed to file a pro per PCR petition, he neither invoked a complete round of the State's established appellate review process of his claim, O'Sullivan, 526 U.S. at 845, nor argued operative facts or law to support fair presentment of his claim in the state courts as a violation of federal law, Baldwin, 541 U.S. at 29.

The state courts found Petitioner's filing of a subsequent notice of PCR to be untimely and expressly precluded his second PCR proceeding under Arizona Rule of Criminal Procedure 32.2. Petitioner cannot now return to state court to properly exhaust those claims, as he is time-barred under Arizona law from bringing another petition for post-conviction relief under Rule 32. See Ariz. R. Crim. P. 32.1 and 32.4 (a petition for post-conviction relief must be filed "within ninety days after the entry of judgment and sentence or within thirty days after the issuance of the order and mandate in the direct appeal, whichever is later"); see also State v. Rosario, 195 Ariz. 264, 987 P.2d 226, 228 (Ariz. Ct. App. 1999) (stating that unexcused, untimely post-conviction petitions may be "summarily dismissed"). Additionally, Petitioner's claims would be barred as successive. See Ariz. R. Crim. P. 32.2(a) (providing that a defendant is precluded from relief on any ground "[t]hat has been waived at trial, on appeal, or in any previous collateral proceeding"); McKinney v. Ryan, 730 F.3d 903, 913 n.6 (9th Cir. 2013) (finding claims procedurally defaulted because petitioner was barred from exhausting his claims in the first instance by Rules 32.2(a)(3) and 32.4(a)). Moreover, Petitioner's claim would not qualify under any exceptions referred to in Rule 32.4(a) and Rule 32.2(b), which permit the state court to consider untimely or successive claims. See Rule 32.1(d), (e), (f), (g) and (h). Accordingly, the claim is procedurally barred from federal habeas review. See Coleman, 501 U.S. at 735 n.1.

Petitioner fails to argue or otherwise establish cause for his default, that is, a circumstance that "cannot be fairly attributable" to him that "impeded [his] efforts to comply with the State's procedural rule." Coleman, 501 U.S. at 753. He also has not established prejudice by showing that he was subjected to "error of constitutional dimensions." Murray, 477 U.S. at 494. Further, Petitioner does not argue actual innocence and in fact only requests in the Petition that his sentence be reduced. (Doc. 1 at 11)

III. CONCLUSION

Based on the above analysis, the undersigned finds the Petition is untimely and that his single claim for relief was procedurally defaulted without excuse. The undersigned recommends that the Petition for Writ of Habeas Corpus (Doc. 1) be dismissed with prejudice. Assuming the recommendations herein are followed in the District Judge's judgment, the District Judge's decision will be on procedural grounds. Under the reasoning set forth herein, reasonable jurists would not find it debatable whether the District Judge was correct in its procedural ruling. Accordingly, to the extent the District Judge adopts this Report and Recommendation regarding the Petition, a certificate of appealability should be denied.

IT IS THEREFORE RECOMMENDED that David Anthony Valdez's Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 1) be dismissed with prejudice.

IT IS FURTHER RECOMMENDED that a Certificate of Appealability be denied because dismissal of the Petition is justified by a plain procedural bar and reasonable jurists would not find the procedural ruling debatable.

This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. The parties shall have fourteen days within which to file responses to any objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determination of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed. R. Civ. P. 72.