Bell #073993 v. Thornell et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
William Lee Bell,
Petitioner,
v.
Ryan Thornell, et al.,
Respondents.
No. CV-23-02229-PHX-MTL
ORDER
Before the Court is Petitioner William Lee Bell’s Petition for Writ of Habeas Corpus
(Doc. 3). Magistrate Judge James F. Metcalf issued a Report and Recommendation
(“R&R”), recommending that the Petition be denied and dismissed with prejudice.
(Doc. 32.) The R&R also recommends that a certificate of appealability not be issued. (Id.)
Petitioner timely filed objections to the R&R. (Doc. 33.) Respondent filed a response to
Petitioner’s objections. (Doc. 34.)
I. 	BACKGROUND
The R&R recounts the factual and procedural history of this case, including the
underlying state court proceedings. (Doc. 32 at 1-9.) Petitioner objects to only one portion
of the R&R’s description of the factual and procedural background in this case, which
pertains to an incident that occurred at a Walmart store on January 20, 2016. (Doc. 33 at
2.) The Walmart incident is one of three that underly Petitioner’s convictions and
sentences. The R&R’s account of the Walmart incident is as follows:
In the Walmart incident, on January 20, 2016, loss prevention personnel at
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Walmart 	observed 	Petitioner 	and 	two 	females 	engaging 	in 	suspicious
activity, appearing to skip scanning items while doing self-checkout. The
personnel followed and requested Petitioner reenter the store with the unpaid
for items. The females, who had exited separately, drove up in Petitioner’s
pickup, and defendant removed a handgun from the truck, brandished it and
racked the gun’s slide. The store personnel withdrew and Petitioner and the
females left in the truck.
(Doc. 32. at 1-2.) Petitioner instead recounts that on January 20, 2016, he drove two females
to Walmart to buy a birthday gift for a child. (Doc. 33 at 2.) He attempted to pay for items
at one register, took the items to another register, then used his credit card to pay for the
items. (Id.) Petitioner argued with a loss prevention employee as he exited the store, he left
the items in a shopping cart, and he walked away. (Id.)
Neither party objects to any other portion of the R&R’s account of the facts and
procedural history, and the Court hereby accepts and adopts the R&R’s factual and
procedural description. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)
(en banc).
II. 	LEGAL STANDARD
In reviewing an R&R, this 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).
But district courts are not required to conduct “any review at all . . . of any issue that is not
the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). “[T]he 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). This de
novo 	review 	requirement 	applies 	to 	“the 	portions 	of 	the 	[Magistrate 	Judge’s]
recommendations to which the parties object.” Klamath Siskiyou Wildlands Ctr. v. U.S.
Bureau of Land Mgmt., 589 F.3d 1027, 1032 (9th Cir. 2009). Such objections must be
“specific.” Fed. R. Civ. P. 72(b)(2).
III. 	DISCUSSION
The Court will not consider arguments raised for the first time in an objection. See
United States v. Howell, 231 F.3d 615, 621-22 (9th Cir. 2000) (holding that a district court
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may decline to consider new allegations presented for the first time in objections). Many
of Petitioner’s arguments are raised for the first time in Petitioner’s objections to the R&R.
Petitioner has not previously raised, and so the Court will not consider, the following
objections: (1) the prosecution failed to disclose mental health records; (2) Petitioner’s
attorneys never hired an investigator, gave petitioner erroneous advice, never allowed
Petitioner to assert his innocence, never considered video evidence from Walmart, never
interviewed witnesses, never advocated on Petitioner’s behalf, and were disciplined by the
State Bar of Arizona; and (3) Magistrate Judge Metcalf failed to make a “recommendation
based on the United States Constitution. (Doc. 33 at 4-5.)
Nor will the Court consider re-assertions of the merits of underlying claims,
particularly 	when 	the 	Petition 	is 	time-barred 	anyway. 	See 	Sullivan 	v. 	Schriro,
No. CV-04-1517-PHX-DGC, 2006 WL 1516005, at *1 (D. Ariz. May 30, 2006) (finding
that re-litigating the merits of a claim is “tantamount to no objection at all”); White v.
Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2002). The Court will therefore disregard
Petitioner’s contention that his counsel knew of his mental health diagnoses but did not
speak with him about his mental health. (Doc. 33 at 4.)
None of Petitioner’s remaining objections have merit. Petitioner first objects to the
R&R’s factual description of one of three incidents that led to Petitioner’s convictions.
(Doc. 33 at 2.) To support his objection to the R&R’s factual background, he urges the
Court to consider a “Walmart security video” and to “order the state of Arizona to turn [it]
over.” (Id. at 2.) The Court construes this as an objection to the R&R’s finding that
Petitioner’s claim of actual innocence lacks merit, which requires “new reliable evidence.”
Schlup v. Delo, 513 U.S. 298, 324 (1995). Petitioner does not present evidence; he requests
the State of Arizona disclose footage concerning the Walmart incident. (Doc. 33 at 2.) The
Court will not open discovery in this case. Campbell v. Blodgett, 982 F.2d 1356, 1358 (9th
Cir. 1993) (citing Harris v. Nerlson, 394 U.S. 286, 296 (1969)) (holding that there “is no
federal right, constitutional or otherwise, to discovery in habeas proceedings as a general
matter.”). 	Beyond 	Petitioner’s 	request 	for 	the 	video, 	he 	presents 	only 	self-serving
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statements, which are not trustworthy enough to constitute credible, reliable evidence under
Schlup. See Murphy v. Ducart, No. CV 13-08901-BRO (DTB), 2015 WL 1238352, at *7
(C.D. Cal. Mar. 13, 2015) (“[P]etitioner’s self-serving statements regarding his actual
innocence are not the species of evidence required by Schlup, as they are inherently
unreliable.”).
Petitioner objects to Magistrate Judge Metcalf’s “failure to address or answer the
constitutional violation raised in petitioner’s habeas.” (Doc. 33 at 3 [citation modified].)
The purported constitutional violation stemmed from Petitioner being charged a $55.00 fee
in state court. (Id.) The Court already dismissed this claim, so the Court will not address it.
(Doc. 6.)
Petitioner objects to the R&R’s timeliness, statutory tolling, and actual innocence
analyses because it misrepresents dates. (Doc. 33 at 6.) Petitioner does not provide further
explanation, and the Court has found nothing in the record indicating that the R&R’s
representation of dates is erroneous.
Petitioners final objections are bare assertions that he exhausted his claims in state
court, that he alerted the state court to the constitutional nature of claims, and that he has
not procedurally defaulted his state remedies. (Doc. 33 at 6.) Petitioner does not cite to
documents to support his conclusions. Nor does he elaborate further. The Court will not
consider his unadorned, conclusory objections. See James v. Borg, 24 F.3d 20, 26 (9th Cir.
1994) (holding that conclusory statements are insufficient to support a habeas petition).
None of Petitioner’s objections have merit. Ultimately, the Court agrees with the
reasoning in the R&R and Magistrate Judge Metcalf’s conclusion that the Petition is
time-barred. (Doc. 32.)
Petitioner asks the Court to issue a certificate of appealability. (Doc. 33 at 5.) Before
Petitioner can appeal this Court’s judgment, a certificate of appealability must issue. See
28 U.S.C. § 2253(c); Fed. R. App. P. 22(b)(1). A certificate may issue “only if the applicant
has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). A substantial showing is made when the resolution of an issue of appeal is
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debatable among reasonable jurists, if courts could resolve the issues differently, or if the
issue deserves further proceedings. See Slack v. McDaniel, 529 U.S. 473, 484–85 (2000).
Upon its own review of the record considering the standards for granting a certificate of
appealability, the Court agrees with the R&R’s conclusion and will not issue a certificate
of appealability.
IV. 	CONCLUSION
IT IS ORDERED that Petitioner’s objections (Doc. 33) are OVERRULED, and
the Report and Recommendation (Doc. 32) is ACCEPTED and ADOPTED.
IT IS FURTHER ORDERED that Petitioner’s Petition for Writ of Habeas Corpus
(Doc. 3) is DENIED and DISMISSED with prejudice.
IT IS FURTHER ORDERED that Petitioner’s request for the issuance of a
certificate of appealability is DENIED because jurists of reason would not find this Court’s
ruling debatable, see Slack v. McDaniel, 529 U.S. 473, 484 (2000), and Petitioner has not
made a substantial showing of the denial of a constitutional right, see 28 U.S.C.
§ 2253(c)(2).
IT IS FINALLY ORDERED directing the Clerk of Court to enter judgment and
terminate this case.
Dated this 30th day of January, 2026.
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