United States District Court, D. Arizona
C. Bury United States District Judge
matter was referred to Magistrate Judge Bernardo P. Velasco
on June 25, 2014, pursuant to Rules of Practice for the
United States District Court, District of Arizona Rule
(Civil) 72.1(a). On June 8, 2016, Magistrate Judge Velasco
issued a Report and Recommendation (R&R). (Doc. 15). He
recommends that the District Court dismiss the Petition for a
Writ of Habeas Corpus as procedurally defaulted. The Court
accepts and adopts the Magistrate Judge’s R&R as
the findings of fact and conclusions of law of this Court and
denies the Petition for Writ of Habeas Corpus.
duties of the district court in connection with a R&R by
a Magistrate Judge are set forth in Rule 72 of the Federal
Rules of Civil Procedure and 28 U.S.C. §636(b)(1). The
district court may “accept, reject, or modify, in whole
or in part, the findings or recommendations made by the
magistrate judge.” Fed.R.Civ.P. 72(b); 28 U.S.C.
§636(b)(1). When the parties object to an R&R,
“[a] judge of the [district] court shall make a de
novo determination of those portions of the [R&R] to
which objection is made.” Thomas v. Arn, 474
U.S. 140, 149-50 (1985) (quoting 28 U.S.C. §636(b)(1)).
When no objections are filed, the district court does not
need to review the R&R de novo. Wang v.
Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir.
2005); United States v. Reyna-Tapia, 328 F.3d 1114,
1121-22 (9th Cir. 2003) (en banc).
to 28 U.S.C. § 636(b), this Court makes a de
novo determination as to those portions of the R&R
to which there are objections. 28 U.S.C. § 636(b)(1)
("A judge of the court shall make a de novo
determination of those portions of the report or specified
proposed findings and recommendations to which objection is
made.") To the extent that no objection has been made,
arguments to the contrary have been waived. McCall v.
Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980) (failure to
object to Magistrate's report waives right to do so on
appeal); see also, Advisory Committee Notes to
Fed.R.Civ.P. 72 (citing Campbell v. United States Dist.
Court, 501 F.2d 196, 206 (9th Cir. 1974) (when no timely
objection is filed, the court need only satisfy itself that
there is no clear error on the face of the record in order to
accept the recommendation).
parties were sent copies of the R&R and instructed that
they had 14 days to file written objections. 28 U.S.C.
§636(b), see also, Federal Rule of Criminal
Procedure 72 (party objecting to the recommended disposition
has fourteen (14) days to file specific, written objections).
To date, no objections have been filed.
Honorable Bernardo P. Velasco, United States Magistrate
Judge, considered the correct standard for exhaustion and
procedural default for a federal habeas petition. Under the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), a writ of habeas corpus cannot be
granted unless it appears that the petitioner has exhausted
all available state court remedies. 28 U.S.C.
§2254(b)(1); see also Coleman v. Thompson, 501
U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509
(1982). Petitioner failed to present to the Arizona Court of
Appeals the claims he raises in his federal Petition and
therefore has failed to exhaust his state court remedies.
See Baldwin v. Reese, 541 U.S. 27, 29 (2004)
(“To provide the State with the necessary
‘opportunity, ’ the prisoner must ‘fairly
present’ his claim in each appropriate state court . .
. thereby alerting that court to the federal nature of the
claim.”). Furthermore, Petitioner would no longer have
a remedy if he returned to the Arizona courts to present the
claims he raises here. Rule 32.2(a)(3) of the Arizona Rules
of Criminal Procedure provides that a defendant is precluded
from post-conviction relief on any ground that was waived in
any previous collateral proceeding. Petitioner waived
appellate review of his ineffective assistance of counsel
claim raised in his first Post-Conviction Relief Petition by
withdrawing that Petition in 2014 at the hearing on remand
from the appellate court. Although he also raised the claim
in his Third PCR Petition filed in 2013, he did not request
appellate court review of the trial court’s denial of
his Third PCR Petition and is now barred from doing so.
See Ariz.R.Crim.P. 32.4(a); see also Beaty v.
Stewart, 303 F.3d 975, 987 (9th Cir. 2002) (a
state post-conviction action is futile when it is
time-barred). Therefore, any additional petitions would be
subject to summary dismissal. See State v. Rosario,
195 Ariz. 264, 266, 987 P.2d 226, 228 (App. 1999); State
v. Jones, 182 Ariz. 432, 897 P.2d 734 (App. 1995);
Moreno v. Gonzalez, 192 Ariz. 131, 135, 962 P.2d
205, 209 (1998) (timeliness is a separate inquiry from
preclusion). (R&R) (Doc. 15) at 8-9.)
has not argued or otherwise shown cause or prejudice to
overcome the procedural default in this case. Furthermore,
Petitioner has not argued or otherwise shown that a
fundamental miscarriage of justice has occurred which would
require this Court to address his claims on the merits.
Id. at 9.
there are no objections and review has, therefore, been
waived, but the Court nevertheless reviews at a minimum,
de novo, the Magistrate Judge’s conclusions of
law. Robbins v. Carey, 481 F.3d 1143, 1147
(9th Cir. 2007) (citing Turner v. Duncan,
158 F.3d 449, 455 (9th Cir. 1998) (conclusions of law by a
magistrate judge reviewed de novo); Martinez v.
Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991) (failure to
object standing alone will not ordinarily waive question of
law, but is a factor in considering the propriety of finding
Court finds the R&R to be thorough and well-reasoned,
without any clear error in law or fact. See United States
v. Remsing, 874 F.2d 614, 617-618 (9th Cir.
1989) (citing 28 U.S.C. §636(b)(1)(A) as providing for
district court to reconsider matters delegated to magistrate
judge when there is clear error or recommendation is contrary
to law). The Magistrate Judge properly applied the law of
exhaustion and procedural default. The Court accepts and
adopts the R&R as the opinion of the Court, pursuant to
28 U.S.C. §636(b)(1).
IT IS ORDERED that the Report and Recommendation (Doc. 15) is
adopted as the opinion of the Court.
FURTHER ORDERED that the Petition (Doc. 1) is dismissed, and
the Clerk of the Court shall enter judgment accordingly.
FUTHER ORDERED that pursuant to Rule 11(a) of the Rules
Governing Section 2254 Cases, in the event Petitioner files
an appeal, the Court declines to issue a certificate of
appealability because reasonable jurists would not find the