JENNIFER G. ZIPPS, District Judge.
Pending before the Court is a Report and Recommendation issued by United States Magistrate Judge Leslie A. Bowman. Judge Bowman recommends dismissing Petitioner's habeas petition filed pursuant to 28 U.S.C. §2254. (Doc. 14.) Petitioner has filed an objection to the Report and Recommendation. (Doc. 15.)
The Court reviews de novo the objected-to portions of the Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The Court reviews for clear error the unobjected-to portions of the Report and Recommendation. Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999); see also Conley v. Crabtree, 14 F.Supp.2d 1203, 1204 (D. Or. 1998).
In his Objection, Petitioner claims that the Magistrate Judge: (1) improperly failed to consider his ex post facto claim which he raised "at every appropriate stage in State Court and then some'" (doc 15, p. 3) and (2) incorrectly dismissed his ineffective assistance of counsel claim as procedurally barred. Petitioner asserts that he has exhausted his ex post facto claim by presenting it to the trial court, Court of Appeals, and Supreme Court of Arizona. Petitioner further contends that his counsel was ineffective by recommending that he accept a plea agreement that violated the ex post facto clause of the United States Constitution.
Both of Petitioner's claims have been procedurally defaulted in state court, and therefore are barred from review by a federal court. On April 27, 1998, pursuant to a plea agreement, Petitioner was sentenced to ten years of imprisonment followed by a lifetime of probation. (Doc. 9-1, Exh. C.) Within a year of his release from prison, Petitioner violated his probation. (Doc. 9-1, Exh. D.) On February 7, 2008, Petitioner's probation was revoked, and he was sentenced to ten years of imprisonment. (Doc. 9-1, Exh. F.) Since returning to prison, Petitioner has filed two Rule 32 petitions for post-conviction relief in Arizona. In his first petition, Petitioner asserted six claims: (1) he was prejudiced by the introduction of certain materials during trial; (2) he was denied his constitutional right to representation; (3) recent Arizona Court of Appeals' rulings constitute a significant change in the law that, if applied to his case, would have entitled him to relief; (4) he received ineffective assistance of counsel; (5) he did not intelligently, voluntarily, and knowingly enter into the plea agreement; and (6) he was serving an incorrect sentence. (Doc. 9-4, Exh. N.) The state trial court held that Petitioner's claims were precluded as untimely except for the claim alleging a significant change in the law. ( Id. ) The court denied his significant change in the law claim on the merits. ( Id. ) Petitioner did not seek review of the trial court's ruling. (Doc. 9-8, Exh. S.)
In his second petition, Petitioner asserted that the trial court had imposed an illegal sentence in 1998 because a term of lifetime probation was not statutorily authorized for his two preparatory dangerous crimes against children at the time he committed the offenses in 1996. ( Id. ) Petitioner also alleged that his trial counsel had been ineffective. ( Id. ) The trial court held that Petitioner's illegal sentence claim (ex post facto claim) was precluded because he had failed to raise the argument in his first Rule 32 petition. (Doc. 9-8, Exh. R.) The trial court also held that Petitioner's ineffective assistance of counsel claim was precluded because it had been raised in his previous Rule 32 and dismissed as untimely. ( Id. ) The Arizona Court of Appeals affirmed the trial court's rulings. (Doc. 9-8, Exh. S.)
Because Petitioner's claims were procedurally defaulted in state court, the Magistrate correctly concluded that his claims were barred in federal court. See Ortiz v. Stewart, 149 F.3d 923, 931-32 (9th Cir. 1998) (Arizona's rule of preclusion is regularly and consistently applied, and therefore bars federal review of a procedurally defaulted state court claim). Further, as found by the Magistrate Judge, Petitioner has neither demonstrated cause for the default nor a fundamental miscarriage of justice if his claims are not reviewed. (Doc. 14 pp. 5-6.) As Petitioner's objections do not undermine the analysis and proper conclusion reached by Magistrate Judge Bowman, Petitioner's objections are rejected.
Accordingly, IT IS HEREBY ORDERED as follows:
(1) The Report and Recommendation (Doc. 14) is accepted and adopted.
(2) Petitioner's §2254 habeas petition is denied and this case is dismissed with prejudice.
(3) The Clerk of the Court shall enter judgment accordingly and close ...