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Ortiz v. Abeyance

January 9, 2009

MARCOS ANTONIO ORTIZ, PETITIONER,
v.
ABEYANCE AS MIKE EVANS, ET AL., RESPONDENTS.



The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER ADOPTING REPORT AND RECOMMENDATION [doc. #23]; DENYING MOTION TO HOLD PROCEEDINGS IN MOOT and DENYING LEAVE TO FILE AN AMENDED PETITION [doc. #18]

Petitioner, Marcos Antonio Ortiz, filed a pro se Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. The matter was referred to United States Magistrate Judge Cathy Ann Bencivengo, for a Report and Recommendation ("Report"). See 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.3. The magistrate judge issued a Report recommending the petition be denied and requiring objections, if any, to the Report to be filed no later than June 9, 2008. [doc. #14] Petitioner timely filed objections to the Report on June 4, 2008. [doc. #15] At the same time, petitioner filed a motion to hold proceedings in abeyance pending exhaustion of a claim in state court and to file a first amended petition. [doc. #18] On September 8, 2008, the magistrate filed an additional Report and Recommendation ("Report II") directed exclusively to petitioner's motion. Petitioner filed an objection to the Report II addressing the single issue of whether equitable tolling should be applied in this case [doc. #25].*fn1

This Order concerns petitioner's motion to hold proceedings in abeyance and to amend the petition for writ of habeas corpus only. The Court will enter a separate order with respect to the petition for writ of habeas corpus.

1. Legal Standard

A district judge "may accept, reject, or modify the recommended decision" on a dispositive matter prepared by a magistrate judge proceeding without the consent of the parties for all purposes. FED. R. CIV. P. 72(b); see 28 U.S.C. § 636(b)(1). "The court shall make a de determination of those portions of the [report and recommendation] to which objection is made." 28 U.S.C. § 636(b)(1). Section 636(b)(1) does not require some lesser review by the district court when no objections are filed. Thomas v. Arn, 474 U.S. 140, 149-50 (1985). The "statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in the original); see Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 2003) (applying Reyna-Tapia to habeas review).

2. Motion to Hold Proceedings in Abeyance

As noted in Report II, petitioner sought to hold the present proceedings in abeyance pending a determination in the California Supreme Court of his petition for writ of habeas corpus. His state court petition concerned an enhancement of his sentence with a prior juvenile conviction -- the same claim he would like to present here in an amended petition.*fn2 As the magistrate judge noted, because the California Supreme Court denied the petition on July 9, 2008, petitioner's motion to hold the proceedings in abeyance is moot. Petitioner has not objected to this finding. Accordingly, the Court denies this motion.

3. Motion to Amend the Petition

Petitioner seeks to add the wrongful enhancement of sentence claim to his current petition. As the magistrate judge correctly noted and petitioner does not dispute, petitioner is required to seek leave to amend his petition in this case.

The Report II sets forth that the claim is barred by the applicable statute of limitations. Petitioner does not suggest otherwise. But a claim may be added if it relates back to the original claims, Federal Rule of Civil Procedure 15(c)(2), or if the statute of limitations is equitably tolled. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003).

A. Relation Back

As the magistrate judge carefully sets forth, petitioner's proposed new claim concerning sentencing enhancement based on a juvenile offense does not relate back to his original petition. Petitioner has not objected to this portion of Report II. Accordingly, the Court adopts Report II's recommendation that the motion to amend the petition be denied because the proposed claim does not relate back to the original petition.

B. Equitable Tolling

Because the proposed claim does not relate back to the original petition, petitioner must demonstrate that he is entitled to equitable tolling in order to assert a claim that is barred by the applicable statute of limitations. As discussed in Report II, the one-year statute of limitations for filing a habeas petition may be equitably tolled if "extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006). After reviewing the record presented by petitioner, the magistrate judge concluded that petitioner was not entitled to ...


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