United States District Court, D. Arizona
May 27, 2014
Qurian Vere Roberson, Petitioner,
Charles L. Ryan, et al., Respondents.
ROSLYN O. SILVER, Senior District Judge.
On March 11, 2014, Magistrate Judge David K. Duncan issued a Report and Recommendation ("R&R") recommending Qurian Vere Roberson's petition for writ of habeas corpus be denied. (Doc. 20). Petitioner filed objections. (Doc. 21). For the following reasons, the R&R will be adopted and the petition denied.
I. Standard of Review and Objections
A district judge "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b). Where any party has filed timely objections to the R&R, the district court's review of the part objected to must be de novo. Id. The Court need not conduct any review of portions where no objection is made. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (district court must review only those portions of R&R to which there are objections).
Petitioner "concedes to the correctness of the factual background, and post conviction proceedings as they are stated" in the R&R. (Doc. 21 at 1). Therefore, the Court will adopt that factual background in full. Petitioner appears to object, however, to everything in the R&R other than the factual background. Those objections are difficult to understand and appear to be general objections rather than "specific" objections required by Federal Rule of Civil Procedure 72. As noted by another judge, "general objections to an R & R are tantamount to no objection at all." Gutierrez v. Flannican, 2006 WL 2816599, at *2 (D. Ariz. Sept. 29, 2006). Thus, the Court could summarily adopt the R&R in full. However, out of an abundance of caution, the Court will review de novo the R&R's conclusion on each of Petitioner's claims.
II. Five of Petitioner's Claims Are Barred
The R&R concludes five of Petitioner's claims are either "procedurally defaulted, noncognizable, or moot." (Doc. 20 at 9-10). Having reviewed the claims de novo, the R&R is correct. That is, the R&R correctly reached the following five conclusions: 1) Petitioner did not identify the federal basis for portions of one claim based on his counsel allegedly admitting his guilt; 2) there is no constitutional right to severance of charges; 3) Petitioner already obtained relief on his sentencing error claim; 4) errors of state sentencing law are not cognizable in federal habeas; and 5) Petitioner did not raise his claim regarding the composition of the jury as a separate "substantive claim" during state proceedings. (Doc. 20 at 9-10). Therefore, the R&R will be adopted regarding these five claims.
III. Petitioner's Remaining Claims Fail on the Merits
The R&R addresses the merits of five claims. Having reviewed those claims de novo, the R&R correctly rejects all five. In brief: 1) Petitioner has not shown the state court's decision on his ineffective assistance of counsel claim based on counsel's statement regarding guilt was "objectively unreasonable." See Woodford v. Visciotti, 537 U.S. 19, 27 (2002); 2) Petitioner has not established any meaningful failure to turn over exculpatory evidence because the evidence was available at the time of trial; 3) Petitioner has not established any claim based on juror misconduct; 4) Petitioner was not denied effective assistance of appellate counsel because the alleged sentencing error was corrected; and 5) Petitioner's ineffective assistance of counsel argument based on the firearm being inoperable was properly rejected because Arizona law does not require the weapon be operable.
IT IS ORDERED the Report and Recommendation (Doc. 20) is ADOPTED and the Petition for Writ of Habeas Corpus is DENIED and DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED a Certificate of Appealability and leave to proceed in forma pauperis on appeal are DENIED. Dismissal of certain portions of the petition is justified by a plain procedural bar and jurists of reason would not find the ruling debatable. On the remaining portions of the petition, Petitioner has not made a substantial showing of the denial of a constitutional right.