Soliven #342149 v. Thornell et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Garett R Soliven,
Petitioner,
v.
Ryan Thornell, et al.,
Respondents.
No. CV-24-01944-PHX-DJH
ORDER
Before the Court is the Petition for Writ of Habeas Corpus by a Person in State
Custody (Non-Death Penalty) (“Petition”) (Doc. 1) filed by pro se Petitioner Garett R
Soliven (“Petitioner”) pursuant to 28 U.S.C. § 2254 and the Report and Recommendation
by U.S. Magistrate Judge Deborah M. Fine (“R&R”) (Doc. 13). Judge Fine recommends
the Petition be denied and dismissed with prejudice and a certificate of appealability be
denied. Petitioner filed an Objection to the R&R (Doc. 14) and Respondents responded
to those Objections (Doc. 15). Petitioner then filed a Motion to Strike Respondents’
Response (Doc. 16). That Motion is fully briefed (Docs. 17, 18). Petitioner has also filed
a Motion Requesting Status (Doc. 19).
I. The Petition and the R&R
Petitioner asserts two grounds for relief in his Petition. He first alleges that his
Fourth and Fourteenth Amendment rights were violated when the state court denied his
motion to suppress “data extracted from cellphones seized under an unconstitutional
warrant.” (Doc. 1-1). Petitioner also says he was deprived of his right to a preliminary
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hearing pursuant to the Arizona Constitution and Arizona Rules of Criminal Procedure.
(Doc. 1 at 7). On December 12, 2024, Respondents filed their Limited Answer to
Petition for Writ of Habeas Corpus (“Answer”) (Doc. 10). On January 9, 2025, Petitioner
filed a Motion Requesting an Order Barring Supplemental Answer by Respondent
(Doc. 11), which the Court denied on January 13, 2025 (Doc. 12). The R&R notes that
Petitioner did not file a reply to the Petition and the time to do so had expired.
(Doc. 13 at 2).
In her R&R, Judge Fine concluded that Petitioner’s Fourth Amendment claim is
barred under Stone v. Powell, 428 U.S. 465 (1976) because Petitioner had a full and fair
opportunity to litigate the claim in state court. (Doc. 13 at 12). She also explained that
“Petitioner’s citation to the Fourteenth Amendment’s Due Process Clause in his affidavit
in support of his Ground One claim does not constitute a separate cognizable claim.”
(Doc. 13 n.7). She explained that the Fourth Amendment is applicable to the States via
the Fourteenth Amendment’s Due Process Clause, and where the claim is that law
enforcement unconstitutionally seized and searched cell phones, the claim is one under
the Fourth Amendment. (Id.)
With regard to Ground Two, Judge Fine agreed with Respondents that Petitioner’s
claim was not cognizable under federal habeas law because it only presented issues of
state law. (Id. at 12–13).
II. Petitioner’s Objection and Proposed Reply Brief
Petitioner’s Objection primarily takes issue with the fact that Judge Fine reached
her conclusions without considering arguments he made in a reply brief Petitioner says he
provided “to the prison librarian to be filed with the court through the Electronic Case
Filing (ECF) system” on January 9, 2025, but was never filed. (Doc. 14 at 1–3; see also
Doc. 14 at 7 (copy of form for Request/Authorization for Electronic Filing identifying
“Reply to Respondent’s Answer” as document name for submission).1 Petitioner attaches
a copy of his proposed Reply to his Objection and asks the Court to instruct the Clerk to
1 The docket reflects that “Plaintiff’s Motion Requesting Order Barring Supplemental
Answer by Respondent” was filed on January 9, 2025 (Doc. 11).
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file the Reply nunc pro tunc and remand to the magistrate judge for reconsideration de
novo. (See Doc. 14 at 17).
Respondents’ Response states that “[r]egardless of whether Soliven’s reply was
properly filed, it would not have made a difference to the Magistrate Judge’s
determination that Soliven’s claims were non-cognizable in these federal habeas
proceedings.” (Doc. 15 at 2). Petitioner subsequently moved to strike Respondents’
Response on the grounds that it “creates an unfair procedural advantage, as it allows them
to argue against a Reply that was never part of the R&R’s analysis.” (Doc. 16 at 3).
III. Standards and Discussion
Upon timely objection of a magistrate judge’s findings and recommendation, a
district court “shall make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). “A judge of the court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. The judge may also receive
further evidence or recommit the matter to the magistrate judge with instructions.” Id.
As an initial matter, Petitioner’s Objection largely does not complain about any
portions of the R&R or specific proposed findings or recommendations Judge Fine made
therein. Instead, Petitioner generally objects that Judge Fine did not consider Petitioner’s
Reply, which he contends was submitted for filing on January 9, 2025, but never actually
filed. It is unclear to the Court why the Reply, which appears to be identified on the
Request/Authorization of Electronic Filing form, was not filed along with Petitioner’s
“Motion Requesting an Order Barring Supplemental Answer by Respondent” on January
9, 2026. The Court has accordingly reviewed the contents of the Reply that Petitioner
has attached as Exhibit A to his Objection. (Doc. 14 at 8–17).2 A review of the Reply,
2 The Court declines Petitioner’s request to remand his Petition to the Magistrate Judge
for consideration of his unfiled Reply. Pursuant to its de novo review, this Court will
instead independently assess whether the points made in the Reply warranted habeas
relief. Petitioner’s Motion to Strike those portions of Respondents’ Response that
purport to respond to Petitioner’s proposed Reply brief is also denied. When Petitioner
attached the proposed Reply to his Objection, Respondents were properly within their
rights to respond to the assertions therein.
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however, does not expose any error in the Magistrate Judge’s R&R or otherwise persuade
the Court that different conclusions should have been reached.
Petitioner’s Reply first says the Stone doctrine does not apply to his Fourth
Amendment claim because he was not afforded a “full and fair” opportunity to litigate his
claim in the state court. Petitioner says the record shows “clearly that the case agent
committed perjury during the search warrant suppression hearings, on more than one
occasion.” (Doc. 14 at 11). But Petitioner improperly conflates his right to a full and fair
opportunity litigate with his desire to get a favorable ruling on his motion to suppress.
The R&R explained in detail the extensive opportunities Petitioner had to litigate this
claim—including that the superior court held four hearings on his motion to suppress and
allowed him to file supplemental briefing on emerging case law. (Doc. 13 at 10). He
was also allowed, and did, raise the argument that the cell phones were unlawfully seized
on appeal. The arguments Petitioner raises in his proposed Reply brief do not change
Judge Fine’s conclusion that Petitioner was afforded a full and fair opportunity to litigate
his Fourth Amendment claim. His Ground One claim is precluded on habeas review
under the Stone doctrine.
Petitioner also argues in his proposed Reply that his failure to receive a
preliminary hearing before a magistrate judge was a violation of his due process rights
under the United States Constitution, not just a violation of state law. (Doc. 14 at 13).
But Petitioner did not make that argument in his Petition. (See Doc. 1 at 4 (“Grounds
Raised: Constitutional violation of Ariz. Cont. Art. II § 30, defendant’s right to
Preliminary Hearing during probably cause stage, resulting in Fundamental Error.”); id.
at 7 (“the State violated the Arizona Constitution and procedural rules by going before a
grand jury, securing an indictment and vacating the date scheduled for Preliminary
Hearing thereby denying Appellant his rights.”); (Doc. 1-2 at 2 (Petitioner’s Judicial
Notice Pursuant to Ariz. R. Evid. Rule 201)). Moreover, in Petitioner’s review of the
superior court’s denial of his PCR petition, he cited only Arizona law regarding the lack
of a preliminary hearing. (Doc. 1-3 at 18–35; see also Doc. 10-3 at 58–65; Doc. 10-4 at
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5-11). Errors of state law are not cognizable in habeas proceedings. Swarthout v. Cooke,
562 U.S. 216, 219 (2011) (“We have stated many times that federal habeas corpus relief
does not lie for errors of state law.”) (quotation marks and citations omitted). Petitioner’s
claim, as stated, is non-cognizable on federal habeas review because it does not assert
that he is in custody in violation of the United States Constitution or its law or treaties.
Petitioner’s Reply also asserts a new claim of actual innocence. (Doc. 14 at 10).
To the extent Petitioner attempts to newly offer it as a ground for review in a Reply brief
and/or objection to an R&R, the Court will not consider it. See United States v. Howell,
231 F.3d 615, 621 (9th Cir. 2000). Even if it were to consider the claim, however,
Petitioner has not met its high standards. Notably, neither the Supreme Court nor the
Ninth Circuit has resolved whether a freestanding claim of actual innocence is legally
cognizable. McQuiggin v. Perkins, 569 U.S. 383, 392 (2013); Herrera v. Collins, 506
U.S. 390, 400 (1993); Jones v. Taylor, 763 F.3d 1242, 1246 (9th Cir. 2014). However,
even if such a right exists, “the threshold for a freestanding claim of innocence would
have to be ‘extraordinarily high’” and “contemplates a stronger showing than
insufficiency of the evidence to convict.” Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir.
1997) (quoting Herrera, 506 U.S. at 417). The Ninth Circuit has held that “at a
minimum, the petitioner must ‘go beyond demonstrating doubt about his guilt, and must
affirmatively prove that he is probably innocent.’” Jones, 763 F.3d at 1246 (quoting
Carriger, 132 F.3d at 476). “Evidence that merely undercuts trial testimony or casts
doubt on the petitioner’s guilt, but does not affirmatively prove innocence, is insufficient
to merit relief on a freestanding claim of actual innocence.” Jones, 763 F.3d at 1251.
Here, Petitioner fails to present any new, additional evidence establishing actual
innocence in his Petition or his proposed Reply.
In accordance with the above,
IT IS ORDERED that Petitioner’s Objections (Doc. 14) are overruled the R&R
(Doc. 13) is adopted. Petitioner’s Petition for Writ of Habeas Corpus pursuant to
28 U.S.C. § 2254 (Doc. 1) is denied and dismissed with prejudice.
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IT IS FURTHER ORDERED denying a Certificate of Appealability in this
matter, as the Court finds that Petitioner has not made a substantial showing of the denial
of a constitutional right.
IT IS FURTHER ORDERED that Petitioner’s Motion to Strike Respondents’
Response (Doc. 16) is denied and Petitioner’s Motion for Status Updated (Doc. 19) is
granted, as stated herein.
IT IS FINALLY ORDERED that the Clerk of Court shall terminate this action
and enter judgment accordingly.
Dated this 5th day of March, 2026.
Honorable Diane J. Humetewa
United States District Judge
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