Gordon v. Bradshaw
| Decision Date | 09 July 2021 |
| Docket Number | No. CIV 18-030-TUC-CKJ (JR),CIV 18-030-TUC-CKJ (JR) |
| Parties | Reynard Gordon, Petitioner, v. Kenneth Bradshaw, et al., Respondents. |
| Court | U.S. District Court — District of Arizona |
On March 15, 2021, Magistrate Jacqueline Rateau issued a Report and Recommendation ("R & R") (Doc. 39) in which she recommended that the Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Doc. 1) filed by Reynard Gordon ("Gordon") be dismissed. Gordon has filed an Objection (Doc. 40), Respondents have filed a Response (Doc. 41), and Gordon has filed a Notice of Rebuttal to Respondent's Document (Doc. 42).1
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, thenthis Court is required to "make a de novo determination of those portions of the [report and recommendation] to which objection is made." The statute does not "require [] some lesser review by [this Court] when no objections are filed." Thomas v. Arn, 474 U.S. 140, 149-50, 106 S.Ct. 466, 88 L.Ed.2d 435 (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).
Bradshaw asserts he has provided the Court with prima facie proof of Private National Status and demands the Court show cause why he cannot proceed "this way." Bradshaw Obj. (Doc. 40, pp. 3-4). Bradshaw asserts his remedies are preserved in exclusive court of equity and there is no adequate remedy at law. Bradshaw also objects to specific factual statements made by the magistrate judge
Bradshaw asserts he has provided the Court with prima facie proof of Private National Status and demands the Court show cause why he cannot proceed "this way." Bradshaw Obj. (Doc. 40, pp. 3-4). Bradshaw asserts his remedies are preserved in exclusive court of equity and there is no adequate remedy at law. He sets forth a number of requests to show cause in support of this assertion. Additionally, Bradshaw asserts he should have filed a 28 U.S.C. § 2241 petition rather than the 28 U.S.C. § 2254 petition.
Bradshaw appears to be stating this Court does not have the authority to rule on his 28 U.S.C. § 2254 Petition and that he wishes to rescind his request for habeas relief becauseit is not proceeding in equity.2 Bradshaw bases these assertions on his status as a "Private National Citizen." However, Bradshaw initiated this action and he has not filed a Motion to Dismiss this action. Moreover, "[c]laims based on variations of 'sovereign citizen' have been dismissed as patently frivolous by the courts." United States v. Lopez, No. CR H-08-187, 2019 WL 1426344, at *2 (S.D. Tex. Mar. 29, 2019), citations omitted; see also U.S. v. Studley, 783 F.2d 934, 937 n. 3 (9th Cir. 1986) (); United States v. Skurdal, 993 F.2d 886 at *1 (9th Cir. 1993), unpublished ("We reject as patently frivolous Skurdal's contentions that the district court improperly asserted personal jurisdiction over him because [] he is his own sovereign . . . ").
The Court, therefore, will consider the § 2254 claims and the R&R. Additionally, to the extent Bradshaw requests the review of his Petition be in equity, the Court will apply established habeas principles and precedent. See e.g. Straley v. Universal Uranium & Milling Corp., 289 F.2d 370, 372-73 (9th Cir. 1961) (). Here, Petitioner does not raise any claim for which precedent allows for the equitable principles to be applied in habeas proceedings (see e.g., Holland v. Fla., 560 U.S. 631, 645 (2010) ().
Bradshaw states:
Bank records indicated approximately $90,000 worth of withdrawals. How is that even possible without at least one or two of the alphabet soup organizations not sounding the alarm? Clearly, Petitioner has to object to such open and bold face lies.
Bradshaw Obj. (Doc. 40, pp. 15-16), citing R&R (Doc. 39, p. 2). However, Bradshaw does not cite to any evidence in the record or provide any documentation to dispute the fact that "[b]ank records indicated approximately $90,000 worth of withdrawals." R&R (Doc. 39, p. 2). The Court will overrule this objection and will adopt the facts as summarized by the R&R.
Bradshaw asserts the Clerk of the Cochise County Superior Court threw away his Notice and was making important documents disappear. He asserts this is why he has not exhausted his state remedies, stating: "How can Petitioner exhaust anything if the court will not file Petitioner's documents." Petition (Doc. 40, pp. 20-21). This appears to be an objection to the magistrate judge's conclusion that Ground One of the Petition is moot. The magistrate judge stated:
In Ground One of the petition, Gordon contends that his due process rights were violated because the clerk of court refused to file his notice of appeal. Since the filing of the petition, the trial court granted Gordon's request to file a late notice of appeal and Gordon did so. Because the requested relief has been granted in state court proceedings, this issue is moot.
R&R (Doc. 39, p. 4), citations omitted. Gordon does not dispute that he was granted permission to file a late notice of appeal. The Court agrees with the magistrate judge that this issue is moot and will adopt this portion of the R&R.
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Gordon asserts it was a mistake to use an attorney for his direct appeal.3 As the magistrate judge points out that Gordon did not raise Grounds Two, Three, and Four on direct appeal, the Court accepts this assertion as an objection to the determination that these claims are not exhausted. However, the record indicates that Gordon was aware he could represent himself. Indeed, he chose to do so at the trial level. That he now contends he made a mistake in having the assistance of counsel on direct appeal, because he now regrets certain claims were not raised on appeal, does not alter the fact that these claims were not raised on appeal.
As stated by the magistrate judge:
Because these three claims could have been raised on direct appeal, if Gordon were to now return to state court to attempt to litigate the federal grounds for these claims, they would be found to be waived and untimely under Rules 32.2(a)(3) and 32.4(a)(2) of the Arizona Rules of Criminal Procedure because they do not fall within an exception to preclusion. See Ariz. R. Crim. P. 32.2(b); 32.1(d)-(h). Grounds Two, Three, and Four are therefore technically exhausted but procedurally defaulted.
R&R (Doc. 39, p. 7). The Court agrees with the magistrate judge and will adopt this portion of the R&R.
Gordon asserts no evidence has been introduced or placed in the record to contradict Bradshaw's proof as set forth in a non-rebutted affidavit. The government states it believes the affidavit Gordon is referring to is the document entitled "Amicus Curiae Affidavit For The Record Notice of Hale v. Hemrel[sic] Private National Status To The Respondent Demand For Show Cause From The Respondent" filed in this case at Doc. 36 ("Affidavit"). The Court agrees it appears this Affidavit is the document referred to by Gordon. The Courtaccepts Gordon's assertion as an objection to the magistrate judge's determination that Gordon has not shown cause for his noncompliance with Ariz.R.Crim.P. 32 and actual prejudice, or establish that a miscarriage of justice would result from the lack of evidence. The magistrate judge stated:
Although given extensions of time to file a reply, and also having filed other pleadings (Docs. 36, 37, 38), Gordon did not file a reply and alleges no cause or prejudice in the Petition. Likewise, he does not argue actual innocence. He has therefore failed to establish cause or prejudice that would enable the Court to address the merits of Grounds Two, Three, and Four.
R&R (Doc. 39, p. 8). The Court agrees Gordon has not established cause and prejudice. While the Court also agrees with the magistrate judge that Gordon did not argue actual innocence in prior briefs, Gordon now asserts that fabricated evidence has been used and no evidence has been presented that is contrary to his assertions. Petition (Doc. 40, pp. 15 and 20). The Court accepts this as a claim of actual innocence.
However, Gordon's Affidavit is rebutted. The government responded to Gordon's arguments in prior briefs in this case. Further, the Affidavit does not include any facts to dispute the factual summary made by the magistrate judge or provide a basis for habeas relief. Rather, the Affidavit seeks to establish Gordon's status as a "private national citizen" rather than set forth valid claims for habeas relief or establish Gordon's actual innocence. Although Gordon asserts "the substance of...
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