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Nimer v. Ryan

United States District Court, D. Arizona

September 26, 2014

Alan Troy Nimer, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

ORDER

ROSLYN O. SILVER, Senior District Judge.

Magistrate Judge Lawrence O. Anderson issued a Report and Recommendation ("R&R") recommending the petition for writ of habeas corpus be denied. Petitioner Alan Troy Nimer filed timely objections. For the following reasons, the R&R will be adopted in full.

I. Standard of Review for R&R

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. ยง 636(b). The district court must review de novo the portions to which an objection is made. Id. The district court need not, however, review the portions to which no objection is made. See Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003) ("[D] e novo review of factual and legal issues is required if objections are made, but not otherwise.") (quotation marks and citation omitted).

II. Factual Background

Petitioner filed lengthy objections to the R&R but those objections do not, in large part, object to the factual background contained in the R&R. Thus, the Court will largely accept the factual background as recounted in the R&R. That background, in brief, is as follows.

In February 2005, Petitioner was contacted by Phoenix Police Officer David Murphy based on the license plate of the car Petitioner was driving being suspended for lack of insurance. During that contact, Officer Murphy saw two open containers of alcohol in Petitioner's vehicle. When Officer Murphy retrieved the open containers, he noticed a pistol. Petitioner was arrested, read his Miranda rights, and transported to the police station.

Petitioner was charged with Misconduct Involving Weapons based on possessing the pistol while Arizona law made him a prohibited possessor. During trial, Officer Murphy testified he was following Petitioner's vehicle in traffic when he checked the license plate. (Doc. 27-7 at 20). That prompted him to make a traffic stop of Petitioner's vehicle. Officer Murphy also testified regarding various statements allegedly made by Petitioner both before and after he read Petitioner his Miranda rights. Officer Murphy confirmed his version of events on cross-examination. (Doc. 28 at 18).

When Petitioner testified, he explained that he had parked his car, visited a store, and was back in his car when Officer Murphy pulled up behind the vehicle. (Doc. 28-2 at 1). Petitioner also denied having made the statements Officer Murphy had recounted. The state called Officer Murphy in rebuttal and Officer Murphy again testified regarding the sequence of events leading to the traffic stop and statements by Petitioner. (Doc. 28-2 at 7-15). The conflicting versions of the traffic stop were not mentioned during closing argument but the statements Petitioner allegedly made were mentioned. (Doc. 28-2 at 39). Petitioner was convicted and sentenced to the presumptive term of ten years.

Petitioner pursued a direct appeal as well as state post-conviction proceedings. Petitioner filed this federal habeas petition in May 2012. In responding to the petition, Respondents construed the petition as presenting four claims: 1) ineffective assistance of counsel ("IAC") based on trial counsel's failure to call certain witnesses; 2) IAC based on the failure to file a motion to suppress physical evidence; 3) IAC based on the failure to file a motion to suppress statements; 4) and a "due process" violation based on the state court's failure to accept a filing in connection with the state post-conviction proceedings. (Doc. 26). Respondents conceded claims one, two, and three were properly presented but argued the fourth claim was not cognizable on federal habeas.

III. Analysis of Petitioner's Claims

Having reviewed the R&R and Petitioner's objections, the Magistrate Judge correctly concluded three of Petitioner's claims fail on their merits while the fourth is not cognizable on federal habeas review.

A. IAC Regarding Witnesses

Petitioner's first claim alleges IAC based on his trial counsel's failure to investigate two witnesses "who Petitioner claims would have provided exculpatory testimony regarding the traffic stop by Officer Murphy." (Doc. 29 at 9). Those witnesses were in the cell phone store Petitioner allegedly visited immediately before his contact with Officer Murphy. According to Petitioner, these witnesses would have corroborated his version of events that Officer Murphy did not initiate a traffic stop of his vehicle. Instead, Officer Murphy pulled into the parking lot after Petitioner had already arrived. ...


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