Nevarez v. Godwin
| Docket Number | 21-cv-1040-MMA-SBC |
| Decision Date | 01 September 2023 |
| Parties | RUBEN NEVAREZ, Petitioner, v. ROD GODWIN and MATTHEW RODRIGUEZ, Respondents. |
| Court | U.S. District Court — Southern District of California |
ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING PETITION FOR WRIT OF HABEAS CORPUS
[DOC. NO. 29]
Ruben Nevarez (“Petitioner”) seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Doc No. 1. The matter was referred to United States Magistrate Judge Karen S. Crawford for preparation of a Report and Recommendation pursuant to Title 28 of the United States Code, section 636(b)(1) and Civil Local Rule HC.2. On May 19 2023, Judge Crawford[1] issued a Report and Recommendation, recommending that the Court deny the Petition in its entirety. See Doc. No. 29 (“R&R”). For the reasons set forth below, the Court ADOPTS the R&R, DENIES the Petition, and DECLINES to issue a certificate of appealability.
Petitioner filed the Petition on May 28, 2021. See Doc. No. 1. On June 3, 2021, the Court denied Petitioner's request to proceed in forma pauperis (“IFP”) and dismissed the Petition without prejudice for failure to pay the filing fee. See Doc. No. 3. Petitioner subsequently paid the filing fee, and the case was reopened. See Doc. No. 4.
On November 1, 2021, Respondents Rod Godwin and Matthew Rodriguez responded to the Petition and lodged the state court record. See Doc. Nos. 11, 12. On November 22, 2021, Petitioner filed a Notice of Appeal, see USCA Case No. 21-56280, seeking to appeal from “the Judgment of the Court denying the petition for writ of habeas corpus and dismissing with prejudice,” entered on “Nov. 1, 2021, by Honorable Ruth Montenegro, U.S. District Judge.”[2] Doc. No. 15 (“First Appeal”). After the Ninth Circuit dismissed the First Appeal, see Doc. No. 17, the Court set a May 6, 2022 deadline for Petitioner to file a traverse, see Doc. No. 20. Petitioner did not file a traverse. Rather, on June 6, 2022, Petitioner filed a second Notice of Appeal, see USCA Case No. 22-55578, seeking to appeal from “the Judgment of the Court denying the petition for writ of habeas corpus and dismissing with prejudice,” entered on “April 05, 2022, by Honorable Andrew G. Schopler, U.S. District Judge.”[3] Doc. No. 21 (“Second Appeal”). Petitioner simultaneously submitted a motion to proceed IFP.[4] See Doc. No. 22. On June 16, 2022, the Ninth Circuit dismissed the Second Appeal. See Doc. No. 25.
On May 19, 2023, Judge Crawford issued an R&R, recommending that the Court dismiss the Petition. See Doc. No. 29. Objections were originally due no later than June 20, 2023. See id. at 9. Petitioner did not timely file an objection. Nonetheless, based upon Petitioner's June 5, 2023 notice of change of address, see Doc. No. 30 (), the Court ordered the Clerk's Office to send Petitioner a copy of the R&R at his new address, and reset the objections deadline to August 11, 2023. See Doc. No. 32. Rather than file an objection, however, Petitioner filed a third Notice of Appeal, see USCA Case No. 231760, seeking to appeal “from the Judgment of the Court denying the petition for writ of habeas corpus and dismissing with prejudice” entered on “May 19, 2023 by Honorable Karen S. Crawford, U.S. District Judge.” See Doc. No. 33 (“Third Appeal”). Petitioner simultaneously filed a motion to proceed IFP. See Doc. No. 34.
On August 17, 2023, the Court denied Petitioner's motion to proceed IFP. See Doc. No. 36. The Court explained that Id. at 2. The Court also found that while it was not clear whether Petitioner wished to obtain IFP status in this Court or on appeal, he was not entitled to such relief. See id. As of the date of this Order, the Ninth Circuit has not issued any dispositive orders on the Third Appeal.
A district court has jurisdiction to review a magistrate judge's report and recommendation on dispositive matters. See Fed.R.Civ.P. 72(b). Pursuant to Rule 72 and 28 U.S.C. § 636(b)(1), the Court must make a de novo determination of any part of the magistrate judge's disposition to which a party has properly objected. See id.; see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (). The Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). In the absence of timely objections, the Court “need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Fed.R.Civ.P. 72(b) advisory committee's note to 1983 amendment (citing Campbell v. U.S. Dist. Ct., 501 F.2d 196, 206 (9th Cir. 1974)); Reyna-Tapia, 328 F.3d at 1121.
The Court must first address the Third Appeal. As noted above, Plaintiff has filed a Notice of Appeal, seeking to appeal from Judge Crawford's R&R. The R&R is not a final or otherwise appealable order. See Serine v. Peterson, 989 F.2d 371, 372 (9th Cir. 1993) (). Therefore, Petitioner's Third Appeal is premature. A premature appeal does not divest the district court of its jurisdiction to issue a subsequent final and appealable judgment. Martinez v. Barr, 941 F.3d 907, 916 (9th Cir. 2019). Accordingly, although the Third Appeal is still pending, the Court is not deprived of jurisdiction to rule on the R&R and enter judgment.
A federal court may entertain a habeas petition from a state prisoner “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996, a district court may not grant habeas relief unless the state court's adjudication of the claim: “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 412 (2000). “[T]he only definitive source of clearly established federal law under AEDPA is the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision.” Hedlund v. Ryan, 854 F.3d 557, 565 (9th Cir. 2017) (quoting Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003), overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63, 71 (2003)).
Judge Crawford recommends that the Court find that Petitioner fails to raise a colorable claim that his constitutional rights were violated and therefore deny the Petition. See R&R at 9.[5] Petitioner has not filed an objection the R&R. “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.” Reyna-Tapia, 328 F.3d at 1121 (emphasis in original); see also 28 U.S.C. § 636(b)(1). “Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct.” Id.
Here, however, it appears that Petitioner does not accept Judge Crawford's recommendation. See Third Appeal. While Petitioner's Third Appeal indicates he takes general exception to the R&R, he does not identify any errors. “Numerous courts have held that a general objection to the entirety of a Magistrate Judge's R&R has the same effect as a failure to object.” Alcantara v. McEwen, No. 12-CV-401 - IEG (DHB), 2013 U.S. Dist. LEXIS 116055, at *3-4 (S.D. Cal. Aug. 14, 2013) (collecting cases). Nonetheless, because Petitioner is proceeding pro se, and in an abundance of caution, the Court has conducted a de novo review and similarly finds that the Petition must be denied.
As Judge Crawford noted, Petitioner has made no effort to rebut the presumption that the state court's findings of fact are correct. Therefore, the Court similarly accepts the factual background as described in the Court of Appeal decision. See Doc. Nos. 12-21, 12-23.[6] Petitioner sexually abused his ex-girlfriend's two daughters and physically abused her son for a period of several years beginning in 2012 until his relationship with the victims' mother ended in December 2015. See COA Dec. at 2-4; Am. Dec. at 1-2. In 2016, the children were removed from their mother's custody after the daughters disclosed the sexual abuse to social workers. See COA Dec. at 4. In 2017, the San Diego District Attorney charged petitioner with eight (8) counts of lewd acts on a child under the age of 14, one (1) count of corporal injury on a child, and one (1) count of oral copulation/sexual penetration with a child 10 years old or younger. Id. at 4. Counts 1 through 8 included allegations that the sexual conduct was substantial and was committed against more than one victim. See id. at 4-5.
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