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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Heriberto F Catarino, 

Petitioner, 

v. 

Charles Ryan, et al., 

Respondents.

No. CV-16-00012-TUC-RM (DTF)

REPORT AND 

RECOMMENDATION 

Petitioner Heriberto F. Catarino (Petitioner), presently incarcerated at the 

Arizona State Prison Complex – Eyman Cook Unit, in Florence, Arizona, filed a 

Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Petition). 

Pursuant to the Rules of Practice of the Court, this matter was referred to 

Magistrate Judge Ferraro for Report and Recommendation. As more fully 

explained below, the Magistrate Judge recommends that the District Court, after 

its independent review of the record, dismiss the Petition. 

 Factual and Procedural Background

 The Indictment and Plea 

 On October 17, 2013, a Cochise County grand jury indicted Petitioner on 

thirteen counts of sexual conduct with a minor, two counts of domestic violence 

assault, one count of domestic violence/aggravated assault, and one count of 

domestic violence/criminal damage. (Doc. 17 at Ex. A.) Petitioner was accused of 

sexually abusing his 12-year-old stepdaughter on multiple occasions over the 
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course of a year and a half. (Doc. 17 at Ex. H at pp. 4-6.) When Petitioner’s wife 

discovered the abuse, they engaged in a physical fight and Petitioner tried to choke 

her. (Id.) A neighbor heard the fight and contacted the police. (Id.) 

 On March 4, 2014, Petitioner, represented by appointed counsel, pled guilty 

to three counts in exchange for dismissal of the remaining counts against him. (Id. 

at Ex. G at pp. 24, 39 and Ex. E.) Just before the change-of-plea hearing, the trial 

court pointed out an issue with Petitioner pleading guilty to the plea as it was 

drafted. (Id. at Ex. G at pp. 8-9.) To resolve the issue it was agreed that count 1 of 

the plea agreement would be substituted for a different count of the indictment so 

that Petitioner would be pleading guilty to a count of the indictment that charged 

him with committing acts against a victim who was under 12 years of age1

 (as the 

parties’ had intended Petitioner to so plead). (Id. at p. 11.) A recess was taken in 

order to give defense counsel an opportunity to explain the change to Petitioner. 

(Id. at p. 9.) Before taking the recess, the trial court stated on the record that the 

change would 

not change the agreement at all. The amount of time, the 

consequences will be the same. However, count 1 of the plea 

agreement will be a different count [of the indictment]. 

(Id. at pp. 9-10.) 

 After the recess, the trial court conducted a plea colloquy with Petitioner. 

(Id. at pp. 11-35.) In response to direct questioning by the trial court Petitioner 

represented that he read and understood the agreement, signed the agreement, and 

initialed each paragraph of the agreement. (Doc. 17 at Ex. G at pp. 14-16.) 

Regarding the changes that had been made to the first page of the plea agreement 

and that had been discussed during the recess, Petitioner was specifically examined 

by the trial court as to whether he had initialed the changes and Petitioner 

represented “Yes.” (Id. at p. 15.) Petitioner confirmed for the trial court that he 

 

1

 (in violation of A.R.S. § 13-705(B)) 
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understood the charges he was pleading guilty to and the sentencing range, 

including that he would receive a 27-year sentence for count 1, lifetime probation 

for count 2, and a 2.5-year sentence for count 3. (Id. at pp. 16-24.) Petitioner also 

confirmed to the court that he understood that his 27-year sentence would be a 

“calendar year sentence,” and that he “would have to serve that sentence day-forday.” (Id.) The trial court repeated that Petitioner’s sentence under the plea is a 

day-for-day sentence. (Id. at p. 17.) 

 The transcript from the change-of-plea hearing reflects that the trial court 

read each count of the amended plea agreement and, after each count, asked 

Petitioner how he wanted to plead. (Id. at pp. 32-33.) Petitioner responded 

“Guilty.” (Id.) After the factual basis for the plea was presented, the trial court 

asked whether either counsel had any concerns about the voluntariness of the plea. 

(Id. at pp. 34-37.) Hearing no voluntariness concerns, the trial court found that 

Petitioner “knowingly, intelligently, and voluntarily offer[ed] his pleas of guilty to 

the three crimes set forth in the plea agreement presented to the court on this date.” 

(Id. at Ex. G at p. 38.) On March 31, 2014, Petitioner was sentenced in accordance 

with the sentence agreed to in the plea agreement: 27-years’ imprisonment for 

count 1, lifetime probation for count 2, and 2.5-years’ imprisonment for count 3. 

(Id. at Ex. J; K at pp. 43-47.) 

 Initial PCR Proceedings 

 Petitioner timely commenced his “of-right” post-conviction relief (PCR) 

proceeding by filing a notice of PCR. (Id. at Ex. M.) His court appointed counsel 

filed a notice stating that she was unable to find any colorable claims to raise and 

requested additional time for Petitioner to file a pro se petition. (Doc. 17 at Ex. O, 

P.) Petitioner timely filed a pro se petition raising two issues. Petitioner first 

argued that he was deprived of his right to present mitigating evidence at 

sentencing. His second issue alleged that the trial court breached the plea 

agreement by failing to mention any aggravating factors during sentencing that 
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would justify the aggravated sentence (27 years). (Id. at Ex. Q.) The trial court 

rejected Petitioner’s first issue but agreed with Petitioner on his second issue. (Id. 

at Ex. R.) The trial court agreed that Petitioner was entitled to a resentencing on 

count 1, but determined that there was no need for an evidentiary hearing because 

“the facts necessary to decide the issues raised” were already “clearly set forth in 

the record.” (Id. at p. 2.) 

 Prior to his resentencing, Petitioner filed a motion for reconsideration 

arguing that the trial court could not impose an aggravated sentence unless the jury 

found aggravating circumstances or he waived his right to require the jury to make 

such findings. (Id. at Ex. V.) Petitioner also raised three arguments in his motion 

for reconsideration: (1) counsel was ineffective for failing to bring the issue to the 

court’s attention; (2) counsel was ineffective for causing “the error contained in 

count 1 concerning the state omitting A.R.S. § 13-702”; and (3) counsel was 

ineffective for permitting the superior court to participate in plea negotiations. (Id. 

at p. 8.) 

 Petitioner was heard on his motion for reconsideration at his resentencing. 

(Id. at Ex. X at pp. 4-5.) The trial court rejected his arguments, explaining that he 

(Petitioner) had agreed to the 27-year sentence in the plea agreement and the only 

error made by the trial court at his original sentencing was its failure to state the 

aggravating factors on the record. (Id. at pp. 5-6.) The trial court noted that the 

emotional harm to the victim had been “clearly and beyond any doubt” established 

by the evidence presented at the original sentencing hearing. (Id. at pp. 6-7.) 

Petitioner’s 27-year sentence was confirmed and his motion for reconsideration 

was denied. (Doc. 17 at Ex. W at pp. 1-2.) 

 Petition for Review in the Arizona Court of Appeals 

 After his resentencing, Petitioner timely filed a petition for review in the 

Arizona Court of Appeals raising five (5) issues: (1) his sentence was in violation 

of the U.S. Constitution and the State of Arizona and “exceeded the maximum 
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authorized by law”; (2) his alleged confession was “attained (sic) in violation of 

the 6th Amendment right to counsel...”; (3) his right to due process was violated 

during plea negotiations by “[j]udicial participation”; (4) “[i]neffective assistance 

of counsel”; and (5) he was sentenced to multiple counts of sexual conduct with a 

minor and “the statute is unconstitutionally ambiguous.” (Id. at Ex. Z at p. 2.) 

 The court of appeals granted review but denied relief holding that Petitioner 

failed to appeal the issue that he had raised in his PCR petition. (Id. at Ex. CC at ¶ 

5.) The court of appeals determined that the issues raised by Petitioner had not 

been raised in a timely manner to the trial court because they were not made in his 

PCR petition but, rather, only were raised in his motion for reconsideration relying 

upon Ariz. R. Crim. P. 32.9(a) and State v. Bonnell, 171 831 P.2d 434, 437 n.3 

(App. 1992). (Id.) The appeals court held that the trial court did not err in 

summarily denying Petitioner’s motion for reconsideration and refused to address 

Petitioner’s claims on the merits. (Id.) Thereafter, Petitioner filed a motion for 

reconsideration which was rejected. (Id. at Exs. DD, EE.) Petitioner’s request that 

the court of appeals stay the issuance of the mandate was also denied. (Id. at Ex. 

GG, HH.) 

 Special Action Proceedings 

 While Petitioner’s petition for review in the Arizona Court of Appeals was 

pending, Petitioner filed a special action petition with the Arizona Supreme Court 

raising five issues stated thusly: (1) “the trial court participated in the plea 

agreement”; (2) “the trial court imposed a prison sentence no authorized by law in 

violation of the United States and Arizona Constitution”; (3) “the trial court did not 

impose sentence according to applicable statutes”; (4) “the prosecutor modified a 

signed plea agreement removing first time felony sentencing”; and (5) “the trial 

court found an aggravated sentence by a preponderance of the evidence without the 

proper required factors.” (Doc. 17 at Ex. JJ at pp. 3-4.) The Arizona Supreme 

Court dismissed Petitioner’s special action petition noting his then-pending petition 
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before the Arizona Court of Appeals and determining that there was “an equally 

plain, speedy, and adequate remedy by appeal.” (Id. at Ex. LL.) The Arizona 

Supreme Court directed Petitioner to file a petition for review if the Arizona Court 

of Appeals denied review or relief. (Id.) Petitioner did not do so. (Id. at Ex. UU.) 

 Second Post-Conviction-Relief Proceedings 

 Instead, Petitioner filed a motion seeking to withdraw his plea in the state 

trial court arguing that he should be allowed to withdraw his plea because 

constitutional error allegedly occurred: (1) “when the State conducted his second 

interview counsel”; (2) “when Officer Navarette failed to properly Mirandatize 

(sic) defendant, saying ‘You can contact a lawyer at anytime (sic)’”; and (3) 

“ineffective assistance of trial counsel for failing to test the State’s case at all.” (Id. 

at Ex. MM at ¶ 31.) The trial court construed this motion as a second PCR petition. 

(Id. at Ex. NN.) In rejecting it, the trial court held, 

A motion to withdraw a plea of guilty must be made before 

sentencing. State v. Honley, 108 Ariz. 144, 146, 493 P.2d 1201, 1203 

(1972). A defendant who fails to file a rule 17.5 motion to withdraw 

from plea before sentencing is limited to post-conviction relief under 

Rule 32. See, State v. Georgeoff, 163 Ariz. 434, 437, 788 P.2d 1185, 

1188 (1990). ... 

Defendant claims his attorney was ineffective for failing to challenge 

Defendant’s interrogation by a police officer. Defendant participated 

in a settlement conference in this case and ultimately entered 

knowing, voluntary, and intelligent pleas of guilty. Defendant waived 

his right to challenge the police interrogation by his entry of the guilty 

pleas. 

More importantly, the record clearly establishes a factual basis for 

Defendant’s pleas of guilty without even considering his statements to 

the police officer. The State could have presented overwhelming 

evidence of guilt at trial apart from Defendant’s statements. Defendant 

was not prejudiced by the decision to waive any issue regarding the 

interrogation. 
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Defendant’s current claims are precluded pursuant to Rule 32.2(a), 

Rules of Crim. Proc. In Defendant’s previous [PCR petition] he 

certified that he was then raising all claims which could be raised. He 

further certified his understanding that any other claims of which he 

was then aware could be precluded. 

(Doc. 17 at Ex. NN at p. 1.) Petitioner then moved for reconsideration which was 

denied. (Id. at Exs. OO, PP.) 

 The Petition 

 Thereafter, on January 7, 2016, Petitioner filed his Petition raising four 

grounds for relief. (Doc. 1 at pp. 6-8.) In Ground One Petitioner alleges ineffective 

assistance of trial counsel for counsel’s alleged failure to question the admissibility 

of Petitioner’s confession through a motion to suppress. Also in Ground One, 

Petitioner alleges trial counsel was ineffective for suggesting that one of the counts 

in his plea agreement be changed from a count that would have entitled him to 

85% time to a count that required him to serve 100% flat time. In Ground Two 

Petitioner alleges his Fifth Amendment right to counsel was violated during his 

second police interrogation because the formal adversarial process had already 

begun. Finally, in Ground Three, Petitioner alleges his Sixth Amendment right to 

counsel during a police interrogation was violated. On March 3, 2016, the district 

court ordered the Petition served upon Respondent. (Doc. 9.) On July 14, 2016, 

Respondent filed its Limited Answer to Petition for Writ of Habeas Corpus (Doc. 

17.) Petitioner did not file a reply. (See Dkt.) 

 As more fully set forth below, Petitioner is not entitled to habeas relief. As 

such, this Court recommends the District Court dismiss the Petition. 

The Claims in the Petition are Defaulted 

 As mentioned above, the Petition raises four grounds for relief. (Doc. 1 at 

pp. 6-8.) As explained below, all of the claims raised by Petitioner are procedurally 

defaulted without excuse. Additionally, as a result of Petitioner’s pleading guilty 

review of one of the ineffective assistance of counsel claims contained in Ground 
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One, as well as the claims in Grounds Two and Three, are waived. 

 Exhaustion and Procedural Default 

Exhaustion: The Petition is governed by the Anti-Terrorism and Effective 

Death Penalty Act (AEDPA). 28 U.S.C. § 2254. In order to seek federal habeas 

relief a state prisoner must allege that he is being held in violation of federal law. 

28 U.S.C. § 2254(a). A federal court may not grant habeas relief unless “the 

applicant has exhausted the remedies available in the court of the state.” 28 U.S.C. 

§ 2254(b)(1)(A). 

 This requirement is designed to give state courts a chance “to resolve federal 

constitutional claims before those claims are presented to the federal court[.]” 

O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). To properly exhaust a claim, a 

petitioner must “first raise the claim in a direct appeal or collaterally attack his 

conviction in a petition for post-conviction relief pursuant to Rule 32.” Roettgen v. 

Copeland, 33 F.3d 36, 38 (9th Cir. 1994). Accordingly, “state prisoners must give 

the state courts one full opportunity to resolve any constitutional issues” by fairly 

presenting their claims through “one complete round of the State’s established 

appellate review process.” O’Sullivan, 526 U.S. at 845. 

 With the exception of habeas petitions regarding life-sentences or capital 

cases, claims of Arizona state prisoners are exhausted for purposes of federal 

habeas relief once the Arizona Court of Appeals has ruled on them. Castillo v. 

McFadden, 399 F.3d 993, 998 n.3 (9th Cir. 2005); Swoopes v. Sublett, 196 F.3d 

1008, 1010 (9th Cir. 1999). A petitioner must present “his federal, constitutional 

issue before the Arizona Court of Appeals within the four corners of his appellate 

briefing.” Castillo, 399 F.3d at 1000. (Additional citation omitted.) 

Default: If the prisoner fails to fairly present his claim to the state court in a 

procedurally appropriate manner, the claim is “procedurally defaulted” and barred 

from federal habeas review. See, e.g., Ylst v. Nunnemaker, 501 U.S. 797, 802-05 

(1991). There are two categories of procedural default, express and implied. 
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Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). Express procedural 

default operates to bar a federal habeas claim where a state court expressly applied 

a procedural bar to the prisoner’s claim when the prisoner attempted to raise the 

claim in state court. See, e.g., Ylst, 501 U.S. at 802-05. Implied default (also 

referred to as technical exhaustion) occurs when the prisoner never presented his 

claim in state court and returning the prisoner to state court to present that claim 

would be futile under the state’s procedural rules. Teague v. Lane, 489 U.S. 288, 

297-99 (1989). 

 As stated above, Petitioner pled guilty to three counts of a multi-count 

indictment. Because of his guilty plea, Petitioner’s first PCR petition was an “ofright” proceeding and the functional equivalent of a direct appeal under Arizona 

law. State v. Ward, 118 P.3d 1122, 1125-26, ¶¶ 8-11 (Ariz. App. 2005); Summers 

v. Schriro, 481 F.3d 710, 713 (9th Cir. 2007). As detailed below, Petitioner failed to 

raise any of the grounds that he would have the Court consider in the instant 

Petition in his state PCR petition. 

 Petitioner asserted in his state PCR petition that: (1) he was deprived of his 

right to due process because his plea divested the court of “its duties to impose the 

minimum or maximum term,” and (2) the trial court breached the plea agreement 

and erred by ignoring its constitutional duties to impose the proper sentence under 

[Arizona statute], by failing to mention any aggravating factors during sentencing. 

(Doc. 17 at Ex. Q.) In the instant Petitioner, Petitioner alleges ineffective 

assistance of trial counsel (Ground One), a Fifth Amendment right to counsel 

violation (Ground Two), and a Sixth Amendment right to counsel violation 

(Ground Three). (Doc. 1 at pp. 6-8.) Petitioner failed to raise these grounds in his 

state PCR petition. Accordingly, they are procedurally defaulted. 

 Petitioner’s filings subsequent to his initial state PCR petition did not 

operate to exhaust any of the claims that he asks this Court to consider in his 

Petition. First, Petitioner’s motion for reconsideration filed in the state trial court 
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was not a proper vehicle for bringing new claims to the state court’s attention. See, 

e.g., State v. Bonnell, 831 P.2d 835, 437 n.3 (Ariz. App. 1992) (it is inappropriate 

for a petitioner to raise new arguments in a motion for rehearing); Eden v. Ryan, 

2016 WL 1010698 at *15 (D. Ariz. 2016) (claims raised in “various motions for 

reconsideration, motions to vacate, ungranted motions to amend, etc.” do not 

constitute fair presentment of an issue). Moreover, the three claims Petitioner 

raised in his motion for reconsideration are different that the three grounds asserted 

in the instant Petition. Compare Doc. 17 at Ex. V at p. 8, with Doc. 1 at pp. 6-8. 

 Second, the claims Petitioner sought to present to the Arizona Court of 

Appeals in his petition for review also failed to constitute fair presentment as that 

court’s procedural rules prevented it from considering the issues on the merits (as 

expressly mentioned by the appellate court). See Doc. 17 at Ex. CC at ¶ 5 (citing to 

State v. Ramirez, 616 P.3d 924, 928 (App. 1980) (holding that an appellate court 

will not consider on review any issue on which the trial court did not have an 

opportunity to rule)). See also, Castille v. Peoples, 489 U.S. 346, 351 (1989) (a 

claim that has been presented to the state courts for the first and only time in a 

procedural context in which its merit will not be considered is not fair presentation 

for purposes of the exhaustion requirement). 

 Third, Petitioner’s special action to the Arizona Supreme Court that the state 

supreme court declined to consider did not exhaust his federal claims. Presenting a 

claim to the state supreme court in a discretionary petition does not exhaust a claim 

where the state supreme court declines to consider the claim without comment. See 

Chambers v. McDaniel, 549 F.3d 1191, 1169-97 (9th Cir. 2008) (presenting a claim 

to the Nevada Supreme Court in a discretionary petition for an “extraordinary writ” 

does not exhaust the claim if the petition is denied without comment); Roettgen, 33 

F.3d at 38 (submitting a new claim to the state’s highest court in a procedural 

context in which its merits will not be considered absent special circumstances 

does not constitute fair presentation (citing Castille, 489 U.S. at 351)). Moreover, 
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Petitioner did not raise the claims that he raises now in the Petition with the state 

supreme court. 

 Fourth, Petitioner’s motion to withdraw his plea did not operate to exhaust 

the claims he asserts in his Petition. While the claims Petitioner made in his second 

state PCR petition are similar to those he makes in the instant Petition, the state 

court expressly determined that Petitioner’s claims in his second state PCR petition 

were precluded from its review by Rule 32.2(a) of the Arizona Rules of Criminal 

Procedure. 

 In sum, Petitioner failed to give the state courts a full opportunity to resolve 

any constitutional issues by fairly presenting his claims through one complete 

round of the state’s established appellate review process. O’Sullivan, 526 U.S. at 

845. Petitioner cannot now return to state court in an effort to exhaust his claims as 

his claims would be barred under state procedural rules. See, e.g., Ariz. R. Crim. P. 

32.2(a)(3); Ariz. R. Crim. P. 32.4(a); State v. Rosario, 987 P.2d 226, 228 (Ariz. 

App. 1999) (unexcused, untimely post-conviction petitions must be “summarily 

dismissed”). 

 Accordingly, Petitioner’s claims in his Petition are procedurally defaulted 

and precluded from federal habeas review. Ylst, supra. 

The Default Cannot be Excused 

 A procedural default may be excused only if the petitioner demonstrates 

either (1) cause for the default and prejudice resulting from the default, or (2) a 

fundamental miscarriage of justice by showing that he is actually innocent. 

Coleman, 501 U.S. at 750; Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011). A 

petitioner must show both cause and prejudice before this Court may excuse a 

default. Engle v. Isaac, 456 U.S. 107, 134, n.43 (1982). To establish “cause,” a 

petitioner must demonstrate that “some objective factor external to the defense 

impeded [petitioner]’s efforts to comply with the State’ procedural rules.” 

Coleman, 501 U.S. at 753. (Internal quotations omitted.) To show “prejudice,” a 
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petitioner must demonstrate that the underlying alleged constitutional violation 

worked to the prisoner’s “actual and substantial disadvantage, infecting his entire 

trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 

170 (1982). 

 Here, Petitioner has failed to allege that cause and prejudice for the default 

exist much less establish the existence of both cause and prejudice. There is no 

indication in the record that any external factor prevented Petitioner from 

exhausting his claims in state court. Nor is there any indication in the record that 

any alleged constitutional violation worked to Petitioner’s actual and substantial 

disadvantage. In sum, there is nothing from which the Court can conclude that 

Petitioner’s default may be excused under the cause-and-prejudice framework. 

 To demonstrate a “fundamental miscarriage of justice,” a petitioner must 

establish that, in light of new evidence, “it is more likely than not that no 

reasonable juror would have found petitioner guilty beyond a reasonable doubt.” 

Schlup v. Delo, 513 U.S. 298, 327 (1995). This standard “is demanding and 

permits review only in the extraordinary case.” House v. Bell, 547 U.S. 518, 538 

(2006). (Internal quotations omitted.) Petitioner here does not claim innocence. 

 In sum, Petitioner’s claims are procedurally defaulted and there is no basis 

from which the Court can conclude that the default may be excused. 

Grounds Two, Three and a Portion of Ground One are Waived

 Even if all of Petitioner’s claims were not procedurally defaulted (and as set 

forth above all of Petitioner’s claims are procedurally defaulted), one of 

Petitioner’s ineffective assistance of counsel claims in Ground One as well as 

Petitioner’s claims in Grounds Two and Three were waived when Petitioner plead 

guilty. 

 “It is well settled that a voluntary and intelligent plea of guilty made by an 

accused person, who has been advised by competent counsel, may not be 

collaterally attacked.” United States v. Broce, 488 U.S. 563, 574 (1989) (Internal 
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punctuation omitted.) Petitioner can challenge the voluntariness of the plea or 

counsel’s advice regarding the plea. Tollett v. Henderson, 411 U.S. 258, 267 

(1973) (“When a criminal defendant has solemnly admitted in open court that he is 

in fact guilty of the offense with which he is charged, he may not thereafter raise 

independent claims relating to the deprivation of constitutional rights that occurred 

prior to the entry of the guilty plea. He may only attack the voluntary and 

intelligent character of the guilty plea by showing that the advice he received from 

counsel” was ineffective.); Lambert v. Blodgett, 393 F.3d 943, 979 (9th Cir. 2004) 

(“Because [petitioner] pleaded guilty upon the advice of counsel, he is limited to 

challenging his plea by demonstrating that the advice he received from counsel did 

not constitute effective representation.”). 

 Here, as mentioned above, one of Petitioner’s contentions in Ground One is 

that his trial counsel was ineffective for failing to challenge the admissibility of his 

confession. (Doc. 1 at p. 6.) In Ground Two Petitioner alleges his Fifth 

Amendment right to counsel was violated during an interrogation that took place 

after the formal adversarial process had begun. (Id. at p. 7.) In Ground Three, 

Petitioner claims his Sixth Amendment right to counsel during his interrogation 

was violated. (Id. at p. 8.) As demonstrated by the case law set out above, because 

Petitioner pleaded guilty these claims have been waived and are precluded from 

habeas review. 

Recommendation

 Based on the foregoing, the Magistrate Judge recommends the District Court 

DISMISS the Petition for Writ of Habeas Corpus. 

 Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve 

and file written objections within fourteen days of being served with a copy of the 

Report and Recommendation. A party may respond to the other party=s objections 

within fourteen days. No reply brief shall be filed on objections unless leave is 

granted by the district court. If objections are not timely filed, they may be deemed 
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waived. If objections are filed, the parties should use the following case number: 

16-CV-00012-RM. 

Dated this 17th day of November, 2017.