Opinion
No. CV-18-00417-TUC-SHR (EJM)
07-22-2020
Samuel L Cohen, Jr., Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
Petitioner Samuel L. Cohen, Jr. filed a pro se Petition for a Writ of Habeas Corpus ("PWHC") pursuant to 28 U.S.C. § 2254 on August 17, 2018 raising one ground for relief. (Doc. 1). Petitioner alleges that his due process rights were violated when the sentencing court failed to impose a sentence in conformity with the specific language used by the Arizona legislature. Respondents filed an Answer contending that the PWHC is untimely, and further that Petitioner's claim is procedurally defaulted without excuse. (Doc. 7). Petitioner filed a Reply urging the Court to excuse his untimely filing and find that his habeas claim is properly exhausted because he presented his equal protection claim to the state courts as soon as he learned of it. (Doc. 9).
Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter was referred to Magistrate Judge Markovich for a Report and Recommendation. The undersigned finds that Petitioner's PWHC is untimely and that Petitioner has not shown that he is entitled to statutory or equitable tolling. Accordingly, the Magistrate Judge recommends that the District Court deny the Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Plea and Sentencing
The Arizona Court of Appeals summarized the background of Petitioner's case as follows:
The appellate court's stated facts are entitled to the presumption of correctness. See 28 U.S.C. § 2254(e)(1); Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012) (rejecting argument that the statement of facts in an Arizona Supreme Court opinion should not be afforded the presumption of correctness).
In 2005, Cohen pleaded guilty to attempted sexual conduct with a minor and attempted molestation of a child and was sentenced to a five-year term of imprisonment to be followed by a five-year term of intensive probation. In 2013, he admitted violating his probation on the attempted molestation charge, and the trial court reinstated him on probation for a term of ten years, to begin on May 1, 2013.(Doc. 8 Ex. A ¶¶ 2-3).
In December 2014, his probation officer filed a petition to revoke his reinstated probation. Cohen entered admissions to several of the alleged violations, and, in March 2015, the trial court terminated his probation and sentenced him to a 7.5-year prison term.
A. First Petition for Post-Conviction Relief ,
Because Petitioner admitted to the probation violations, he could not file a direct appeal and could only challenge his conviction and sentence through a Rule 32 petition. See A.R.S. § 13-4033(B) ("In noncapital cases a defendant may not appeal from a judgment or sentence that is entered pursuant to a plea agreement or an admission to a probation violation."); Ariz. R. Crim. P. 32.1 ("Any person who pled guilty or no contest, admitted a probation violation, or whose probation was automatically violated based upon a plea of guilty or no contest shall have the right to file a post-conviction relief proceeding, and this proceeding shall be known as a Rule 32 of-right proceeding."); Summers v. Schriro, 481 F.3d 710, 711 (9th Cir. 2007) (holding that an "of right proceeding,' available under Arizona Rule of Criminal Procedure 32 to criminal defendants who plead guilty, is a form of 'direct review' within the meaning of 28 U.S.C. 2244(d)(1)(A).").
The Arizona Rules of Criminal Procedure were amended effective January 20, 2020. New Rule 32 applies to defendants convicted after a trial or a contested probation violation hearing, and new Rule 33 applies to pleading defendants and defendants who admitted a probation violation or had an automatic probation violation. Because Petitioner's state court actions were filed prior to January 20, 2020 and he had no state court action pending at the time the new rules went into effect, former Rule 32 applies to Petitioner's case and the Court will cite to former Rule 32 throughout this opinion. See Arizona Supreme Court Order R-19-0012, available at: https://www.azcourts.gov/rules/Recent-Amendments/Rules-of-Criminal-Procedure
Petitioner filed a notice of post-conviction relief in June 2015. (Doc. 8 Ex. A ¶ 3). "After appointed counsel notified the court that she could find no colorable claims to raise pursuant to Rule 32, the court granted Cohen until October 24, 2015, to file a prose petition for post-conviction relief." Id. "When Cohen had not filed a petition by November 4, 2015, the court summarily dismissed the proceeding." Id.
Petitioner did not file a petition for review with the Arizona Court of Appeals.
B. Second Petition for Post-Conviction Relief
On July 24, 2017, Petitioner filed a "Notice for Rule 32.1 Petition for Post-Conviction Relief" in Graham County Superior Court. (Doc. 1-1 at 1). Petitioner alleged that there was a fundamental error in sentencing and requested the court to review his case for fundamental fairness. Id. Petitioner further stated that he had just learned of a 1989 Arizona case supporting his argument that his term of probation was illegally extended and therefore illegally imposed, and that the 10-year term of probation was illegal because the allowed maximum was 5 years. Id. at 2-3.
On August 3, 2017 the trial court issued its order summarily denying the Rule 32 petition. (Doc. 1-1 at 6). The court rejected Petitioner's argument that the maximum term of probation for a class three felony could only be 5 years, and noted that the relevant statute provided for a period of up to lifetime probation for the offense of attempted molestation of a minor. Id. (quoting A.RS. § 13-902(E)). The court further stated that Petitioner's Rule 32 petition was "neither timely nor meritorious" and ordered the petition summarily dismissed. Id. at 6-7.
On August 21, 2017, Petitioner filed a petition for review with the Arizona Court of Appeals. (Doc. 1-1 at 8). The Court of Appeals issued a memorandum decision on December 29, 2017, granting review and denying relief. (Doc. 8 Ex. A). The court explained its decision as follows:
As the [trial] court correctly observed, § 13-902(E) governs the probation terms available for Cohen's conviction for attempted child molestation, and it provides that "probation may continue for a term of not less than the term that is specified in subsection A of this section up to and including life." See also State v. Peek, 219 Ariz. 182, ¶ 10 (2008) ("lifetime probation was clearly available for an attempted child molestation occurring ... after the effective date of the 1997 amendment" of
§ 13-902(E)). As the trial court suggested, Cohen's claim of an illegal sentence is also barred as untimely; it may not be raised in an untimely and successive proceeding such as this. See Ariz. R. Crim. P. 32.2(b), 32.4(a).Id. ¶ 6. The Court of Appeals concluded that it therefore "approve[d] both grounds cited by the trial court as correct, independent bases for the dismissal of Cohen's Rule 32 filing." Id. ¶ 7.
On January 31, 2018 Petitioner filed a petition for review with the Arizona Supreme Court, which denied review on July 5, 2018. (Doc. 8 Exs. C and D).
B. Habeas Petition
Petitioner filed his PWHC on August 17, 2018. (Doc. 1). In Ground One, Petitioner alleges that his due process rights were violated because the sentencing court failed to impose a sentence in conformity with the specific language used by the Arizona legislature. Petitioner states that after serving a term of imprisonment, he was placed on a 5-year term of probation. When he violated probation, the sentencing court imposed a 10-year term of probation. After Petitioner admitted to violating probation again, he was returned to prison. Petitioner contends that his original 5-year term of probation would have expired before he was sentenced to prison, and alleges that the state statute only allows for a 5-year term of probation. Petitioner further argues that the Rule 32 court abused its discretion by stating that a lifetime term could have been imposed because that is irrelevant to Petitioner's claim.
Respondents contend that the PWHC is untimely and that Petitioner has not shown that he is entitled to equitable tolling. (Doc. 7). Respondents further allege that even if the petition were timely, Petitioner's claim is procedurally defaulted without excuse.
For the reasons stated below, the undersigned finds that the PWHC is untimely and thus not properly before this Court for review. Accordingly, the undersigned recommends that the District Court deny and dismiss the Petition with prejudice.
II. STATUTE OF LIMITATIONS
A. Timeliness
As a threshold matter, the Court must consider whether Petitioner's PWHC is barred by the statute of limitation. See White v. Klizkie, 281 F.3d 920, 921-22 (9th Cir. 2002). The writ of habeas corpus affords relief to persons in custody pursuant to the judgment of a state court in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2241(c)(3), 2254(a). Petitions for habeas corpus are governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). 28 U.S.C. § 2244. The AEDPA mandates that a one-year statute of limitations applies to applications for a writ of habeas corpus by a person in state custody. 28 U.S.C. § 2244(d)(1). Section 2244(d)(1) provides that the limitations period shall run from the latest of:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;28 U.S.C. § 2244(d)(1); Shannon v. Newland, 410 F.3d 1083 (9th Cir. 2005).
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
The other subsections being inapplicable here, Petitioner must have filed his habeas petition within one year from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A); see also McQuiggin v. Perkins, 133 S. Ct. 1924, 1929 (2013). By admitting to the probation violations, Petitioner waived his right to a direct appeal under Arizona law. However, he retained his right to seek review in an "of-right" PCR proceeding pursuant to Arizona Rules of Criminal Procedure 32, 32.1, and 32.4. Thus, his conviction became final upon "the conclusion of the Rule 32 of-right proceeding and review of that proceeding." Summers, 481 F.3d at 711.
In March 2015, after Petitioner admitted to the probation violations, the trial court sentenced him to a term of 7.5 years imprisonment. Petitioner then timely initiated a Rule 32 of-right proceeding and filed his notice of post-conviction relief in June 2015. (Doc. 8 Ex. A ¶ 3); see Summers, 481 F.3d at 715 (to bring an of-right proceeding under Rule 32, a defendant must provide notice to the superior court within 90 days of conviction and sentencing (citing Ariz. R. Crim. P. 32.4(a)). After Petitioner failed to timely file a pro per petition, the trial court summarily dismissed Petitioner's of-right PCR proceeding on November 4, 2015. Petitioner had 35 days to file a petition for review with the Arizona Court of Appeals, but he failed to do so. See Ariz. R. Crim. P. 32.9(c) (requiring a petition for review that challenges the final decision in a PCR proceeding be filed with the Arizona Court of Appeals within 30 days); State v. Savage, 573 P.2d 1388, 1389 (Ariz. 1978) (holding that Rule 1.3 from the Arizona Rules of Criminal Procedure allows 5 additional days for mailing). Therefore, Petitioner's judgment became final on December 9, 2015 within the meaning of 28 U.S.C. § 2244(d)(1)(A) when his time for seeking appellate review expired. See Gonzalez v. Thaler, 132 S. Ct. 641 (2012) (holding that where a state prisoner does not seek review in a state's highest court, the judgment becomes "final" for purposes of § 2244(d)(1)(A) on the date that the time for seeking such review expires). Thus, absent any tolling, the one-year limitations period would have commenced the following day on December 10, 2015 and continued to run until it expired one year later on December 9, 2016—one year and eight months before the instant § 2254 petition was filed. See Patterson v. Stewart, 251 F.3d 1243, 1245-47 (9th Cir. 2001) (the limitations period begins to run on the day after the triggering event pursuant to Fed. R. Civ. P. 6(a)). Accordingly, the petition is untimely unless the statute of limitations was tolled. As discussed below, it was not.
B. Statutory Tolling
The one-year limitation period under AEDPA is statutorily tolled during the time in "which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2); see also Lott v. Mueller, 304 F.3d 918, 921 (9th Cir. 2002). An application for state post-conviction relief is '"properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings[,]" including "the time limits upon its delivery . . ." Artuz v. Bennett, 531 U.S. 4, 8 (2000). If a state court rejects a petitioner's PCR petition as untimely, it cannot be "properly filed" and the petitioner is not entitled to statutory tolling. Allen v. Sibert, 552 U.S. 3, 6-7 (2007) ("Whether a time limit is jurisdictional, an affirmative defense, or something in between, it is a 'condition to filing[.]'"); Pace v. DiGuglielmo, 544 U.S. 408, 417-418 (2005) (holding that "time limits, no matter their form, are 'filing' conditions").
If a petitioner files an application after the generally applicable state time limit, the application may nonetheless be considered "properly filed" if it fits within any exception to that limit. Pace, 544 U.S. at 413. However, the existence of exceptions to the state's timely filing requirements does not prevent a late application from being deemed improperly filed when the application does not fit within any exceptions to the time limit. Id. at 408. As the Supreme Court held in Pace, "[w]hen a post-conviction petition is untimely under state law, that is the end of the matter for purposes of § 2244(d)(2)." Id. at 414 (internal brackets and quotation marks omitted). In so holding, the Court reasoned that:
In common understanding, a petition filed after a time limit, and which does not fit within any exceptions to that limit, is no more "properly filed" than a petition filed after a time limit that permits no exception. The purpose of AEDPA's statute of limitations confirms this commonsense reading. On petitioner's theory, a state prisoner could toll the statute of limitations at will simply by filing untimely state postconviction petitions. This would turn § 2244(d)(2) into a de facto extension mechanism, quite contrary to the purpose of AEDPA, and open the door to abusive delay.Id. at 413. Under the Arizona PCR statute and corresponding procedural rule, a "proceeding is commenced by timely filing a notice of post-conviction relief with the court in which the conviction occurred." Ariz. R. Crim. P. 32.4; see also Ariz. Rev. Stat. § 13-4234(A) (a post-conviction relief "proceeding is commenced by timely filing a notice of post conviction relief with the clerk of the court in which the conviction occurred."). Thus, the time limit for filing a notice of post-conviction relief under Rule 32.4(a) "places a limit on how long a prisoner can wait before filing a postconviction petition." Allen, 552 U.S. at 6.
In the instant case, Petitioner's second notice of PCR was untimely filed. Petitioner filed the second notice of PCR on July 24, 2017—nearly two years after the trial court issued its order summarily dismissing Petitioner's of-right PCR proceedings, and well beyond the applicable time limits set forth in Ariz. R. Crim. P. 32.4(a). See, e.g., Leacock v. Ryan, 2016 WL 8255617, at *4 (D. Ariz. Nov. 16, 2016) (second PCR petition filed three and a half years after conclusion of of-right PCR proceedings was untimely), report and recommendation adopted, 2017 WL 588899 (D. Ariz. Feb. 14, 2017); Cisneroz v. Ryan, 2016 WL 8259523, at *4 (D. Ariz. Oct. 25, 2016), report and recommendation adopted, 2017 WL 633145 (D. Ariz. Feb. 16, 2017). As Petitioner's second notice of PCR was filed untimely under Arizona law, that is the end of the Court's inquiry as to whether the PCR petition was "properly filed" under AEDPA. See Pace, 544 U.S. at 414 ("When a post-conviction petition is untimely under state law, that is the end of the matter for purposes of § 2244(d)(2)."); Trigueros v. Adams, 658 F.3d 983, 988 (9th Cir. 2011) ("An untimely state petition is not 'properly filed' and does not trigger statutory tolling under AEDPA."); Banjo v. Ayers, 614 F.3d 964, 968 (9th Cir. 2010) ("An untimely petition . . . is not 'properly filed' pursuant to 28 U.S.C. § 2254(d)(2), and so it does not toll the statute of limitations."). Petitioner's untimely PCR proceedings therefore had no statutory tolling effect on AEDPA's statute of limitations. See De Jesus v. Acevedo, 567 F.3d 941, 943-44 (7th Cir. 2009) (holding that a "state court's order denying a request for collateral review (whether on the merits or for any procedural reason) does not require the exclusion, under 28 U.S.C. § 2244(d)(2), of time that passed before the state collateral proceeding began").
"Only the time period during which a round of habeas review is pending tolls the statute of limitation; periods between different rounds of collateral attack are not tolled." Banjo, 614 F.3d at 968. The Ninth Circuit "employ[s] a two-part test to determine whether the period between the denial of one petition and the filing of a second petition should be tolled. First, we ask whether the petitioner's subsequent petitions are limited to an elaboration of the facts relating to the claims in the first petition. If the petitions are not related, then the subsequent petition constitutes a new round of collateral attack, and the time between them is not tolled. If the successive petition was attempting to correct deficiencies of a prior petition, however, then the prisoner is still making proper use of state court procedures, and habeas review is still pending. Second, if the successive petition was not timely filed, the period between the petitions is not tolled." Id. at 968-69 (internal quotations and citations omitted) (noting that because the court concluded the petition was untimely under the second prong of King, the court "need not determine whether the petition was a continuation of the first or the start of a second round."); see also Hemmerle, 495 F.3d at 1075 (explaining that when the court construes the new petition as part of the first round of collateral review, tolling applies if the petition was denied on the merits but not if the petition was deemed untimely). If a new claim is asserted in the second petition, then the second petition is considered a "new round," even if the second petition corrects deficiencies in the first petition. Stancle v. Clay, 692 F.3d 948, 955-56 (9th Cir. 2012) (finding that because the petitioner "did not limit his second petition to an elaboration of the facts and his second petition started a 'new round,' he is not entitled to statutory gap tolling for the [] days between his first and second superior court petitions."). Here, because the undersigned finds that Petitioner's second notice of PCR was untimely, Petitioner is not entitled to tolling for the periods between the petitions.
Even if the state court provides alternative grounds for disposing of a PCR petition, a ruling that the action was untimely precludes it from being "properly filed" and tolling the limitations period. Carey v. Saffold, 536 U.S. 214, 225-26 (2002); Szabo v. Ryan, No. CV-10-2608-PHX-GMS, 2011 WL 5439006, *8 (D. Ariz. Oct. 24, 2011) ("The state court's interpretation of whether a state petition is untimely governs whether a post-conviction process has become final for purposes of AEDPA."), aff'd, 571 F. App'x 585 (9th Cir. 2014); Parker v. Ryan, No. CV-15-1130-PHX-JAT-JFM, 2016 WL 11431549, *7 (D. Ariz. June 8, 2016) (same), report and recommendation adopted, 2016 WL 4190737 (D. Ariz. Aug. 9, 2016). Here, the trial court found that Petitioner's 2017 PCR petition was both untimely and meritless, and the COA agreed. (Doc. 1-1 at 6-7); (Doc. 8 Ex. A). Petitioner's untimely PCR notice therefore had no statutory tolling effect on AEDPA's statute of limitations. See Pace, 544 U.S. at 414; Carey, 536 U.S. at 225-26; see also Curiel v. Miller, 830 F.3d 864, 869 (9th Cir. 2016) (for purposes of applying the "properly filed" requirement of § 2244(d), the federal courts look to the "last reasoned decision" of the state courts).
In sum, the undersigned finds that Petitioner is not entitled to statutory tolling. Petitioner's conviction became final within the meaning of AEDPA on December 9, 2015, and the statute of limitations began to run the next day. It continued to run uninterrupted until it expired one year later on December 9, 2016. Petitioner's second, untimely PCR notice did not toll, pause, or re-start the statute of limitations; once the federal statute of limitations has run, a collateral state action cannot revive it. See Sibley v. Culliver, 377 F.3d 1196, 1203 (11th Cir. 2004); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) ("section 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed"); Leacock, 2016 WL 8255617 at *4 ("Once the one-year AEDPA time limit has passed, a habeas petitioner cannot restart his federal time limit by filing an action in state court . . . There can be no tolling following the expiration of the limitation period because 'there is no period remaining to be tolled.'" (quoting Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000))). Accordingly, absent equitable tolling, the statute of limitations expired on December 9, 2016, making the instant § 2254 petition untimely.
C. Equitable Tolling
In certain limited circumstances, AEDPA's one-year filing deadline may be equitably tolled. Holland v. Florida, 130 S. Ct. 2549, 2560 (2010). A petitioner is entitled to equitable tolling if he can demonstrate "'(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 petition. Holland, 130 S. Ct. at 2562 (quoting Pace, 544 U.S. at 418). An extraordinary circumstance is one that is "beyond a prisoner's control [that] make[s] it impossible to file a petition on time." Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999) (citations omitted). And, to justify equitable tolling, the extra ordinary circumstance must be attributable to "external forces [] rather than a petitioner's lack of diligence[.]" Id. Further, a petitioner must 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). "'[T]he threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule.'" Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (quoting Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002)).
Here, Petitioner has failed to meet his burden. The record before this Court is devoid of any evidence to demonstrate that Petitioner is entitled to equitable tolling, and Petitioner has not adequately explained why he is without fault in waiting so long to file his second PCR notice. While Petitioner alleges that he only learned of a case in July 2017 that supported his claim, the case Petitioner cites was decided in 1989, almost thirty years before Petitioner filed his second notice of PCR. Petitioner's failure to discover this case sooner does not excuse his untimely filing, and 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); see also Ford v. Pliler, 590 F.3d 782, 789 (9th Cir. 2009) ("A petitioner's misunderstanding of accurate information cannot merit relief, as equitable tolling requires a petitioner to show that some extraordinary circumstance[ ] beyond [his] control caused his late petition, and this standard has never been satisfied by a petitioner's confusion or ignorance of the law alone."); Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009) ("To apply the doctrine in extraordinary circumstances necessarily suggests the doctrine's rarity, and the requirement that extraordinary circumstances stood in his way suggests that an external force must cause the untimeliness, rather than . . . merely oversight, miscalculation or negligence on the petitioner's part . . . .") (internal quotation marks and brackets omitted)). Simply stated, Petitioner cannot demonstrate any extraordinary circumstances that prevented him from timely filing the petition.
Furthermore, Petitioner cites State v. Bouchier, 159 Ariz. 346 (1989) for his argument that, pursuant to Ariz. Rev. Stat. § 13-902(A)(2), the maximum term of probation that can be imposed for a class 3 felony is 5 years. However, as the trial court noted in summarily dismissing Petitioner's second PCR, the statute that applies to Petitioner's charge of attempted molestation of a minor, a class three dangerous crime against children in the second degree, is § 13-902(E), which provides for a term of up to lifetime probation. See A.R.S. § 13-902(E) ("After conviction of a felony offense or an attempt to commit any offense that is included in chapter 14 or 35.1 of this title or section 13-2308.01, 13-2308.03, 13-2923, 13-3212 or 13-3623, if probation is available, probation may continue for a term of not less than the term that is specified in subsection A of this section up to and including life and that the court believes is appropriate for the ends of justice."); see also A.R.S. § 13-1410 (molestation of a child); A.R.S. § 13-705 (dangerous crimes against children).
Accordingly, the undersigned finds that Petitioner is not entitled to equitable tolling and the PWHC is untimely.
III. RECOMMENDATION
Based on the foregoing,
IT IS HEREBY RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 be DENIED.
IT IS FURTHER RECOMMENDED that a certificate of appealability and leave to proceed in forma pauperis on appeal be DENIED because dismissal of the Petition is justified by a plain procedural bar and reasonable jurists would not find the procedural ruling debatable.
Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2) of the Federal Rules of Civil Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed. R. Civ. P. 72(b)(2). No replies shall be filed unless leave is granted from the District Court. If objections are filed, the parties should use the following case number: CV-18-417-TUC-SHR
Failure to file timely objections to any factual or legal determination of the Magistrate Judge may result in waiver of the right of review. The Clerk of the Court shall send a copy of this Report and Recommendation to all parties.
Dated this 22nd day of July, 2020.
/s/_________
Eric J. Markovich
United States Magistrate Judge