Alberto Cruz v. Bob Marshall , 673 F. App'x 296 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6130
ALBERTO MARQUEZ CRUZ,
Petitioner - Appellant,
v.
BOB W. MARSHALL; KIERAN J. SHANAHAN,
Respondents – Appellees.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Senior District Judge. (1:13-cv-01097-JAB-LPA)
Argued: September 21, 2016 Decided: December 19, 2016
Before KING, SHEDD, and THACKER, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Shon Robert Hopwood, GEORGETOWN UNIVERSITY LAW CENTER,
Washington, D.C., for Appellant. Clarence Joe DelForge, III,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina,
for Appellees. ON BRIEF: Steven H. Goldblatt, Director,
Alexander J. Egbert, Ryan J. Travers, Student Counsel, Appellate
Litigation Program, GEORGETOWN UNIVERSITY LAW CENTER,
Washington, D.C., for Appellant. Roy Cooper, Attorney General
of the State of North Carolina, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellees.
PER CURIAM:
North Carolina state prisoner Alberto Cruz
(“Petitioner”) filed a habeas corpus petition asserting five
grounds for relief in the District Court for the Middle District
of North Carolina against Bob Marshall, Acting Superintendent of
the Harnett Correctional Institution, and Frank Perry,
Secretary, North Carolina Department of Public Safety (“the
State”). The State moved to dismiss the petition as untimely.
The magistrate court recommended granting the motion.
Petitioner filed objections to the recommendation, but the
district court summarily rejected Petitioner’s objections,
adopted the recommendation, and entered an order dismissing the
action as untimely.
We granted Certificates of Appealability to determine
whether the petition timely asserts a Brady violation and an
ineffective assistance of counsel claim. Because the district
court failed to properly consider Petitioner’s objections to the
magistrate’s Report and Recommendation and provide an adequate
rationale for its decision, we vacate the district court’s
decision and remand for further proceedings.
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I.
A.
On July 26, 2010, police arrested Petitioner, a 21-
year-old Mexican citizen, in a McDonald’s parking lot in
Guilford County, North Carolina. On September 20, 2010, the
grand jury indicted Petitioner for a variety of drug-related
charges. Thereafter, Petitioner’s counsel proceeded to
negotiate a plea agreement with the State.
On January 10, 2011, Petitioner pled guilty to seven
drug-related offenses. He was ultimately sentenced to between
175 and 219 months imprisonment. Per the plea agreement,
Petitioner waived his right to direct appeal.
B.
On March 14, 2013, Petitioner filed a Motion for
Appropriate Relief (“MAR”) in the North Carolina Superior Court
raising five challenges to his guilty plea and sentence: (1) a
violation of due process because the State did not allow him a
consular visit pursuant to the Vienna Convention; (2) a
violation of due process because Petitioner’s plea agreement was
not knowing, intelligent, and voluntary; (3) ineffective
assistance of counsel because counsel failed to investigate
possible defenses; (4) a violation of due process because the
court sentenced him to a sentence outside the appropriate range;
and (5) a violation of Brady v. Maryland, 373 U.S. 83 (1963),
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because the State did not disclose a fingerprint analysis of the
drugs. 1
When the North Carolina Superior Court rejected the
MAR, Petitioner filed a Motion for Reconsideration, which was
denied. Petitioner next filed a Petition for Writ of Certiorari
with the North Carolina Court of Appeals, which was also denied.
C.
On December 9, 2013, Petitioner filed a Petition for
Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254 (the “Habeas
Petition”), in the United States District Court for the Middle
District of North Carolina. The district court referred the
matter to a magistrate judge. See 28 U.S.C. § 636(b)(1)(B). In
the Habeas Petition, Petitioner raised the same five challenges
to his plea and sentence as he did in his MAR. Although almost
two years had elapsed since his guilty plea, the Habeas Petition
claimed timeliness under 28 U.S.C. § 2244(d)(1)(D). 2 The court
1 In the MAR, Petitioner did not provide information about
how or when he became aware of either the existence of the
State’s report or his attorney’s failure to investigate.
2 Section 2244 (d)(1) provides:
A 1-year period of limitation shall apply to
an application for a writ of habeas corpus
by a person in custody pursuant to the
judgment of a State court. The limitation
period shall run from . . . (D) the date on
which the factual predicate of the claim or
(Continued)
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ordered the State to respond. Rather than respond on the
merits, the State moved to dismiss the Habeas Petition as
untimely.
On January 9, 2015, the magistrate judge issued a
Report and Recommendation (“R & R”). It first held the claims
about the consular visit, the voluntary nature of the plea
agreement, and the length of the sentence untimely because
“Petitioner knew the factual predicate [for those claims] . . .
when he pled guilty and received his sentence.” Cruz v.
Marshall, No. 1:13-cv-1097, 2015 WL 136089, at *3 (M.D.N.C. Jan.
9, 2015), report and recommendation adopted, No. 1:13-cv-1097,
2015 WL 270026 (M.D.N.C. Jan. 21, 2015).
The R & R analyzed the Brady and ineffective
assistance of counsel claims separately but ultimately held
these claims untimely because Petitioner had failed to plead
sufficient facts to toll the statute of limitations pursuant to
28 U.S.C. § 2244(d)(1)(D). Although the Habeas Petition alleged
a Brady violation and asserted the State suppressed a report
showing Petitioner’s fingerprints were not on the drugs he was
charged with trafficking, it did not include the date Petitioner
learned of the State’s report. Likewise, although the Habeas
claims presented could have been discovered
through the exercise of due diligence.
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Petition alleged ineffective assistance of counsel and asserted
Petitioner’s counsel failed to adequately investigate his case,
it did not include the date Petitioner learned of counsel’s
failure to investigate or even how he learned of counsel’s
failure. The R & R deemed the failure to include these dates a
“fatal” error and therefore held these claims untimely. Cruz,
2015 WL 136089, at *3.
Petitioner timely filed his objections to the R & R
and corrected the flaw. Specifically, Petitioner stated he
learned of the report showing his fingerprints were not on the
drugs when he received the State’s discovery documents “on or
about January 15, 2013.” J.A. 159. 3 His objection also
explained he learned of counsel’s failure to investigate his
case when he received his “file from counsel on or about March
1, 2013.” Id. at 160.
Although Petitioner filled in this critical gap, the
district court nonetheless adopted the R & R and declined to
issue a Certificate of Appealability. Furthermore, the district
court’s laconic order failed to provide any insight as to why
the district court was rejecting Petitioner’s objections. See
Cruz, 2015 WL 270026, at *1.
3
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
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Petitioner timely filed a Notice of Appeal, and we
granted a Certificate of Appealability on the Brady claim.
Counsel was appointed for Petitioner and, upon request, we also
granted a Certificate of Appealability on the ineffective
assistance of counsel claim.
II.
Pursuant to 28 U.S.C. § 636(b)(1)(C), a district court
must review de novo any parts of an R & R to which objections are
made. When a party fails to object to an adverse ruling, the
district court, in its discretion, may adopt an R & R without
providing an explanation. See Camby v. Davis, 718 F.2d 198, 200
(4th Cir. 1983) (“Absent objection, we do not believe that any
explanation need be given for adopting the report.”).
When a party raises new information in objections to
an R & R, regardless of whether it is new evidence or a new
argument, 4 the district court must do more than simply agree with
the magistrate. It must provide independent reasoning tailored
to the objection. See Orpiano v. Johnson, 687 F.2d 44, 48 (4th
Cir. 1982). The district court does not need to provide an
4
The parties dispute whether the addition of the dates in
Petitioner’s objection to the R & R classify as additional
evidence the district court had discretion to accept or a new
argument the court was obligated to consider. See Appellant’s
Br. 24; Appellee’s Br. 8. We reach no determination on the
issue.
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elaborate or lengthy explanation, but it must provide a specific
rationale that permits meaningful appellate review. See United
States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (requiring a
district court to provide a specific explanation for sentencing
decisions); Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1177
(9th Cir. 1996) (“Here, the record does not reflect the district
court’s reasons for deciding not to award sanctions . . . .
Because such a reasoned basis is necessary to make appellate
review meaningful, we vacate the district court order . . . .”);
Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 182 (4th
Cir. 1988) (“The procedures mandated by [In re Knight, 743 F.3d
231 (4th Cir. 1984)] ensure that the decision to seal records
will not be made lightly, and make possible meaningful review of
a decision to seal.”).
Here, the district court did not provide a sufficient
explanation. Instead, the court simply stated, it “had
appropriately reviewed the portions of the Magistrate Judge’s
Report to which objection was made and has made a de novo
determination in accord with the Magistrate Judge’s report.”
Cruz, 2015 WL 270026, at *1. But this statement cannot be
reconciled with the posture of the case.
The magistrate judge dismissed as untimely the
ineffective assistance of counsel and Brady claims because
Petitioner failed to include specific dates when he learned
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facts critical to these claims. Petitioner responded by
providing those dates. With the new information, the R & R no
longer included the basis to dismiss Petitioner’s Brady or
ineffective assistance of counsel claims. Therefore, the
district court should have explained its decision that the
petition was untimely so as to permit meaningful appellate
review.
III.
For the foregoing reasons, we vacate and remand for
further proceedings. Specifically, we direct the district court
to review de novo the R & R, including Petitioner’s objections,
and provide sufficient explanation for its ruling, whatever that
may be.
VACATED AND REMANDED
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