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De Los Rios v. Ryan

United States District Court, Ninth Circuit

September 23, 2013

Paul Bryan De Los Rios, Petitioner,
Charles L. Ryan, Director of the Department of Corrections, et al., Respondents.


G. MURRAY SNOW, District Judge.

Pending before the Court are Petitioner Paul Bryan De Los Rios's Petition for Writ of Habeas Corpus (Doc. 1) and Petitioner's Motions to Produce Documents. (Docs. 24-25.) Magistrate Judge David K. Duncan issued a Report and Recommendation ("R&R") in which he recommended that the Court deny the petition with prejudice. (Doc. 13.) De Los Rios filed objections to the R&R. (Doc. 23.) Because objections have been filed, the Court will review the petition de novo. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). For the following reasons, the Court accepts the R&R and denies the petition. The Court also denies De Los Rios's Motions to Produce Documents.


De Los Rios was convicted by a jury in Maricopa County Superior Court, case #CR2001-14225, of first degree murder and two counts each of kidnapping and child abuse. (Doc. 11, Ex. A at 5.) De Los Rios was sentenced to natural life in prison for the charge of first degree murder and consecutive terms of ten year's incarceration for each of the kidnapping and child abuse charges, to be served consecutive to the life sentence. ( Id. ) De Los Rios filed a timely notice of appeal. ( Id. )

De Los Rios's counsel filed an Anders brief on October 31, 2008, stating that he found no arguable question of law that is not frivolous. ( Id., Ex. A, B.) De Los Rios, as permitted by Arizona law, then filed a supplemental brief pro se. ( Id. ) In his brief, he raised the following claims: (1) the grand jury proceeding was flawed and the trial court had improperly amended the indictment at trial; (2) the jury instruction defining "reckless, " as set out in the lesser included offenses, was improper; (3) the trial court erred in not allowing De Los Rios to interview Son, who testified for the State, prior to trial; (4) Son gave false testimony at trial as reflected by contradicting statements given by a nontestifying witness; and (5) the State presented insufficient evidence to sustain the verdicts. ( Id. ) The Court of Appeals affirmed De Los Rios's convictions and sentences on March 3, 2009. ( Id., Ex. A.) The Arizona Supreme Court denied review on June 30, 2009. ( Id. )

De Los Rios filed a Notice of Post-Conviction Relief on November 10, 2008, and a subsequent Petition for Post-Conviction Relief. ( Id., Ex. D.) The petition raised one claim: that the trial court had erred in denying a defense motion to limit argument regarding the murder count, resulting in an improper amendment to the indictment and thus denying him a grand jury determination on probable cause, the effective assistance of counsel, and a unanimous jury verdict. ( Id. ) On July 27, 2010, the Superior Court dismissed the petition for post-conviction relief. ( Id., Ex. E.)

De Los Rios then petitioned for review of the denial of his petition at the Arizona Court of Appeals, raising two claims: (1) the trial court improperly amended the indictment; and (2) trial counsel rendered ineffective assistance by failing to challenge the amended indictment. ( Id., Ex. F.) The Arizona Court of Appeals denied review on March 28, 2012. ( Id., Ex. G.)

De Los Rios filed the instant petition for writ of habeas corpus on April 23, 2012. (Doc. 1.) In his petition, De Los Rios names Charles Ryan as Respondent and the Arizona Attorney General as an Additional Respondent. He cites three grounds for relief: (1) trial counsel rendered ineffective assistance by failing to object to an amended indictment; (2) trial counsel failed to provide De Los Rios with complete copies of discovery; and (3) The Arizona Department of Corrections denied him use of the law library. (Doc. 1.) This Court subsequently dismissed Ground Three in its May 16, 2012 order. (Doc. 4.)

Magistrate Judge Duncan issued an R&R on April 24, 2013, in which he recommended denial of the petition with prejudice. (Doc. 13.) De Los Rios filed his objections to the R&R on July 16, 2013, (Doc. 23), and the Court will now review the petition de novo.



The writ of habeas corpus affords relief to persons in custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(c)(3)(2006). Review of Petitions for Habeas Corpus is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Id. U.S.C. § 2244 et seq.

A petitioner is required to exhaust his claim in state court before seeking federal habeas relief. 28 U.S.C. § 2254(b)(1)(A). To satisfy that requirement, a petitioner must "give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition." O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). In Arizona, a petitioner is required to "fairly present" all claims he seeks to assert in his habeas proceeding first to the Arizona Court of Appeals either through direct appeal or the State's post-conviction relief proceedings. Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999).

For a petitioner to have fairly presented his claims to the appropriate state courts, he must have described the operative facts and the federal legal theory that support his specific claim. See Baldwin v. Reese, 541 U.S. 27, 29, 31 (2004); Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009) (per curiam) ("Full and fair presentation... requires a petitioner to present the substance of his claim to the state courts, including a reference to a federal constitutional guarantee and a ...

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