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Contreras v. Ryan

United States District Court, D. Arizona

November 25, 2014

Jimmy Kelly Contreras, Petitioner,
Charles L. Ryan, et al., Respondents.


ROSLYN O. SILVER, Senior District Judge.

Magistrate Judge Michelle H. Burns issued a Report and Recommendation ("R&R") recommending the petition for writ of habeas corpus be denied and dismissed with prejudice. Petitioner filed timely objections. The Court called for supplemental briefing, which Respondents submitted but Petitioner did not. 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). A district judge must review de novo the portions to which an objection is made but a judge need not 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 does not object to the factual and procedural background recited by the Magistrate Judge. Therefore, it will be adopted. In brief, Petitioner was convicted of sexually abusing his 14-year old stepdaughter as well as physically abusing and confining three other stepdaughters. He was sentenced to consecutive sentences totaling more than 250 years. Petitioner pursued a direct appeal where all his convictions were affirmed. He then pursued state post-conviction relief. Petitioner was appointed counsel in connection with his post-conviction proceedings but that counsel was unable to find any grounds for relief. Petitioner filed a pro se petition for post-conviction relief but the superior court concluded all claims raised in the petition were either "precluded, waived, or baseless."

Petitioner appealed the denial of post-conviction relief. The Arizona Court of Appeals interpreted the appeal as asserting a variety of theories involving ineffective assistance of counsel ("IAC") that Petitioner had not raised below. The Arizona Court of Appeals rejected all of Petitioner's claims, finding them procedurally precluded. (Doc. 8-4 at 108). The Arizona Supreme Court denied review and Petitioner then filed the present federal petition.

III. Federal Petition and Objections

The federal petition raises five grounds for relief involving IAC of trial counsel and IAC of appellate counsel. (Doc. 4 at 2). The petition asserts all these claims were exhausted during state court proceedings. In their response, Respondents argue all the claims are procedurally defaulted. Petitioner's reply reiterates he exhausted all of his claims during state-court proceedings. (Doc. 9 at 4) ("Petitioner has left none of his claims unexhausted in state court...."). The reply also contains the following passage:

Petitioner brings forth his federal habeas corpus claims to this court because of the violation of his secured constitutional rights. Petitioner[s] claims of IAC are the legitimate reason as to why his claims were dropped and not waived by the Petitioner throughout the post-conviction relief efforts. Petitioner's counsel failed to follow the state[s] procedural rule and thus was ineffective, cause for a claim of not being reasonably available to Petitioner is implied by the IAC claims brought before the court.

(Doc. 9 at 9).

It is not clear what this passage means. It may be an attempt by Petitioner to argue his post-conviction relief counsel was ineffective such that the default of his claims involving IAC of trial and appellate counsel should be excused. The Magistrate Judge, understandably, did not interpret this passage or any other aspect of Petitioner's filings as making such an argument. Instead, the Magistrate Judge looked to the underlying record and determined Petitioner failed to exhaust his claims and the claims were all procedurally defaulted.

Petitioner filed objections to the R&R but those objections do not point out specific flaws in the Magistrate Judge's analysis. Instead, Petitioner made only general objections. Such objections have "the same effect as would a failure to object." Warling v. Ryan, 2013 WL 5276367, at *2 (D. Ariz. Sept. 19, 2013). That is, general objections-just like a failure to object-mean the Court need not conduct any review of the R&R. Despite the lack of appropriate objections, the Court called for supplemental briefing regarding Petitioner's alleged default of all of his claims. (Doc. 14). In their supplemental brief, Respondents claim Petitioner failed "to plead and prove" a basis for excusing the procedural ...

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