Gerard Morris v. Hector Rios, Warden, and Attorney General for the State of New...

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

GERARD MORRIS,

Petitioner, v. No. 23-cv-0282-MV-GJF HECTOR RIOS, Warden, and

ATTORNEY GENERAL FOR

THE STATE OF NEW MEXICO,

Respondents.

ORDER ADOPTING MAGISTRATE JUDGE’S PROPOSED FINDINGS

AND RECOMMENDED DISPOSITION

THIS MATTER is before the Court on: (1) Petitioner Gerard Morris’s Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (“Amended Petition”) [Doc. 4]; (2) Magistrate Judge Kirtan Khalsa’s Proposed Findings and Recommended Disposition (“PFRD”) [Doc. 15]; (3) Objection to Senior U.S. District Judge Martha Vazquez [Doc. 16]; and (4) Response to Pro Se Petitioner Gerard Morris’s Objection to Senior U.S. District Judge Martha Vazquez [Doc. 17]. In the PFRD, Judge Khalsa recommends dismissing the Amended Petition. Under 28 U.S.C. § 636(b)(1)(C), the Court conducts a de novo review of any objections to the Magistrate Judge’s PFRD. To resolve an objection to the PFRD, the Court “must determine de novo any part of the magistrate judge’s disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3). “[A] party’s objections to the magistrate judge’s report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. One Parcel of Real Property, 73 F.3d 1057, 1060 (10th Cir. 1996). “The filing of objections to a magistrate’s report enables the district judge to focus attention on those issues—factual and legal—that are at the heart of the parties’ dispute.” Id. at 1059 (quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). Issues raised for the first time in an objection to the PFRD are deemed waived. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996).

Here, Mr. Morris filed objections to the PFRD but does not identify how Judge Khalsa committed error in concluding that his Amended Petition is time-barred and that no exception to the one-year period of limitations applies. Because Mr. Morris reiterates his original arguments regarding equitable tolling without pointing to any error on Judge Khalsa’s part in addressing those very arguments, he gives this Court no basis to sustain his Objection. The Court finds that it is constrained by the law, as set forth by Judge Khalsa in her PFRD, to find that Mr. Morris’s Petition is untimely and that he is not entitled to equitable or statutory tolling of the applicable statute of limitations for § 2254 petitions. Accordingly, upon review of the law and record, the Court concurs with Judge Khalsa’s PFRD and finds that Mr. Morris has presented no valid objection thereto.

IT IS THEREFORE ORDERED as follows:

1. Mr. Morris’s Objection to Senior U.S. District Judge Martha Vazquez [Doc. 16] is OVERRULED.

2. Judge Khalsa’s Proposed Findings and Recommended Disposition [Doc. 15] is ADOPTED as an Order of the Court.

3. Mr. Morris’s Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody [Doc. 4] is DISMISSED with prejudice.

4. Because the time-bar is not reasonably debatable in this case, the Court DENIES a Certificate of Appealability.

5. The Court will enter a Final Judgment concurrently with this Order.

IT IS SO ORDERED.

HONORA DMA MARPHA VAZQUEZ ‘SENIOR UNITED STATES DISTRICT JUDGE