Brand #356278 v. Arizona, State of et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Hugh James Brand,
Petitioner,
v.
Attorney General of the State of Arizona, et
al.,
Respondents.
No. CV-24-02463-PHX-DJH
ORDER
Petitioner Hugh James Brand (“Mr. Brand”) filed a Petition for Writ of Habeas
Corpus under 28 U.S.C. § 2254 (“Petition”) (Doc. 1) on September 17, 2024. On March
12, 2025, United States Magistrate Judge Camille D. Bibles issued her Report and
Recommendation (“R&R”) on the Petition (Doc. 19). Judge Bibles recommends that Mr.
Brand’s Petition be denied as untimely under the Antiterrorism and Effective Death Penalty
Act (“AEDPA”). (Id. at 13). Mr. Brand filed an Objection to the R&R (Doc. 20).
Prior to the issuance of the R&R, Mr. Brand also filed a “Motion for Newly
Discovered Evidence” (Doc. 17) and a “Motion on Plea Agreement Reconsideration” (Doc.
18). After the R&R was filed, he filed another “Motion on Plea Agreement
Reconsideration” (Doc. 21) and a “Motion for Status” (Doc. 22).
The Court agrees that the Petition is untimely under AEDPA and will adopt the
R&R, deny the pending Motions, and dismiss Mr. Brand’s Petition.
I. Standard of Review
Upon timely objection of a magistrate judge’s findings and recommendation, a
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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.
II. The R&R and Mr. Brand’s Objection
In finding the Petition untimely, Judge Bibles concluded that Mr. Brand is not
entitled to equitable tolling of the statute of limitations, has procedurally defaulted his
federal habeas claims and fails to establish cause for or prejudice arising from the
procedural default, and has not shown a fundamental miscarriage of justice will occur
absent consideration of the merits of his claims. (Doc. 19 at 13).
As noted, Mr. Brand timely filed an objection to the R&R (Doc. 20). Most of Mr.
Brand’s objections, however, relate to statements made by Respondents in their Response
or reiterate the merit-based arguments he advances in his Petition. For example, Mr. Brand
says that contrary to what Respondent claims, the originally filed plea agreement “shows
count one was for attempted murder” not attempted child trafficking. (Id. at 1). He also
says that “the sentencing transcript. . . absolutely shows judicial and prosecutorial
misconduct in the fact the court was bound by law to the plea which had been accepted on
21 June, 2022.” (Id. at 1–2). These are not valid objections to the R&R upon which the
Court can review because Judge Bibles did not reach the merits of Mr. Brand’s claims;
instead, she found the Petition was untimely. (Doc. 19 at 13). See also White v. Klitzkie,
281 F.3d 920, 921–22 (9th Cir. 2002) (whether a federal habeas petition is time-barred
must be resolved before considering other procedural issues or the merits of any habeas
claim). Mr. Brand’s merit arguments therefore are not objections the Court is obligated to
review under the Federal Magistrates Act. Thomas, 474 U.S. at 150 (where there is no
objection to a magistrate’s factual and legal determinations, the district court need not
review the decision “under a de novo or any other standard”). Moreover, the Court agrees
with Judge Bibles that Mr. Brand’s Petition is untimely, and thus will not reach his merit-
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based arguments.
Notably, Mr. Brand largely does not object to the factual basis from which Judge
Bibles calculated the applicable statute of limitations and filing deadlines. He does say
that “the state claims there was a state habeas trial of which I was never notified and I
didn’t file with the Arizona Court of Appeals. I believe this would make any normal person
wonder about the truth in any of the state’s statements.” (Doc. 20 at 1). The record shows,
however, that Mr. Brand file a state action for post-conviction relief and the relief was
denied on July 20, 2023. (Doc. 13-1 at 85–87). Mr. Brand does not elaborate or explain
how his failure to receive notice of the state court order denying him relief tolled or
otherwise extended his time to file his federal habeas petition. Indeed, Petitioner has not
articulated what, if any, of the Magistrate Judge’s findings he found objectionable. His
failure to identify any flaws in the factual findings or legal analysis of the R&R has the
same effect as a complete failure to object. Haley v. Stewart, 2006 WL 1980649, at *2 (D.
Ariz. July 6, 2006)) (“Because de novo review of an entire R&R would defeat the
efficiencies intended by Congress, a general objection “has the same effect as would a
failure to object.”); Gutierrez v. Flannican, 2006 WL 2816599 (D. Ariz. 2006) (citing
Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984). See also United States v. Midgette, 478 F.3d
616, 622 (4th Cir. 2007) (finding that “a party must object to [a] finding or
recommendation. . . with sufficient specificity so as reasonably to alert the district court of
the true ground for the objection” and citing cases standing for same proposition from the
Third, Sixth, Seventh, and Tenth Circuits).
Although the Court could simply accept the R&R based upon this case law, it did
not. The Court reviewed the R&R, some of the many various exhibits referenced therein,
and the applicable law. Judge Bibles’s analysis and recommendations are sound and the
Court adopts them in their entirety.
III. Mr. Brand’s Motions
Because the Court agrees the Petition is untimely without excuse, the Court also
denies Mr. Brand’s pending Motions (Docs. 17, 18 & 21). Mr. Brand attaches a portion of
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the transcript from his sentencing in his “Motion for Newly Discovered Evidence.”
(Doc. 17 at 3). The transcript reflects that the state court judge, in issuing the judgment,
stated that the attempted child sex trafficking crime was committed “between June 10,
2021, through and including June 12 of 2021.” (Id.) Mr. Brand objects to this statement
in his Motion and says he “was in jail June 12 of 2021 before this crime I was charged with
so how could I have done this crime.” (Id. at 1). It is unclear what “evidence” Mr. Brand
is contending is “newly discovered” by attaching this portion of the transcript since he was
present at the hearing in question. Regardless, nothing in this request impacts or changes
the Court’s conclusion that his federal petition is untimely. The Motion is therefore denied.
The same is true about Mr. Brand’s two “Motions on Plea Agreement
Reconsideration” (Docs. 18 and 21), both which make the argument that the plea agreement
accepted by the state court was not the plea that he agreed to. As the R&R noted, Mr.
Brand made this argument to the state court in his first post-conviction review petition and
it was rejected on July 20, 2023. (Doc. 19 at 2). Mr. Brand did not appeal that decision
and accordingly it became “final” on August 21, 2023, under 28 U.S.C. § 2244(d)(1).
AEDPA’s one-year statute of limitations expired on August 21, 2024, which was nearly a
month before Mr. Brand’s September 17, 2024, federal habeas petition. The Petition is
therefore untimely and for the reasons stated in the R&R, not subject to equitable tolling.
Accordingly,
IT IS ORDERED that Mr. Brand’s Objection (Doc. 20) is overruled and the
Report and Recommendation (Doc. 19) is accepted and adopted as the Order of this Court.
Mr. Brand’s Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) is
denied. Any request for a Certificate of Appealability is also denied.
IT IS FURTHER ORDERED that Mr. Brand’s “Motion for Newly Discovered
Evidence” (Doc. 17) and “Motions on Plea Agreement Reconsideration” (Docs. 18 & 21)
are denied. Mr. Brand’s “Motion for Status” (Doc. 22) is granted, as stated herein.
/ / /
/ / /
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IT IS FINALLY ORDERED that the Clerk of Court shall terminate this action and
enter judgment accordingly.
Dated this 15th day of January, 2026.
Honorable Diane J. Humetewa
United States District Judge
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