United States District Court, D. Arizona
A. Teilborg Senior United States District Judge
before the Court is Petitioner's Petition for Writ of
Habeas Corpus (“Petition”). The Magistrate Judge
to whom this case was assigned issued a Report and
Recommendation (“R&R”), recommending that the
Petition be denied. (Doc. 32). Petitioner filed objections to
portions of the R&R. (Doc. 35).
Review of R&R
Court “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)(1). It is “clear
that the district judge must review the magistrate
judge's findings and recommendations de novo if
objection is made, but not otherwise.” United
States v. Reyna-Tapia, 328 F.3d 1114, 1121
(9th Cir. 2003) (en banc) (emphasis in
original); Schmidt v. Johnstone, 263 F.Supp.2d 1219,
1226 (D. Ariz. 2003) (“Following Reyna-Tapia,
this Court concludes that de novo review of factual
and legal issues is required if objections are made,
‘but not otherwise.'”); Klamath Siskiyou
Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d
1027, 1032 (9th Cir. 2009) (the district court “must
review de novo the portions of the [Magistrate Judge's]
recommendations to which the parties object.”).
District courts are not required to conduct “any review
at all . . . of any issue that is not the subject of
an objection.” Thomas v. Arn, 474 U.S. 140,
149 (1985) (emphasis added); see also 28 U.S.C.
§ 636(b)(1) (“the court shall make a de
novo determination of those portions of the [report and
recommendation] to which objection is made.”).
case, the Court will review the portions of the R&R to
which Petitioner objected de novo.
Review of State Court Decision
Petition in this case was filed under 28 U.S.C. §2254
because Petitioner is incarcerated based on a state
conviction. With respect to any claims that Petitioner
exhausted before the state courts, under 28 U.S.C.
§§ 2254(d)(1) and (2) this Court must deny the
Petition on those claims unless “a state court decision
is contrary to, or involved an unreasonable application of,
clearly established Federal law” or was based on
an unreasonable determination of the facts. See Lockyer
v. Andrade, 538 U.S. 63, 71 (2003). Further, this Court
must presume the correctness of the state court's factual
findings regarding a petitioner's claims. 28 U.S.C.
§ 2254(e)(1); Ortiz v. Stewart, 149 F.3d 923,
936 (9th Cir. 1998). Additionally, “[a]n application
for a writ of habeas corpus may be denied on the merits,
notwithstanding the failure of the applicant to exhaust the
remedies available in the courts of the State.” 28
U.S.C. § 2254(b)(2).
Petition in this case raises six Grounds for relief, two of
which each have four distinct factual predicates. (R&R at
6). The Court will address each Ground in turn.
claims that his right to counsel was violated because he was
not given a mistrial over the prosecutor's questions and
he did not receive a requested jury instruction on the
prosecutor's questions. The R&R recommends that this
Court deny relief on this claim. (R&R at 19-25).
Specifically, the R&R concludes that this claim was
exhausted before the Arizona Courts and that the Arizona
Court of Appeals' decision was not contrary to nor and
unreasonable application of federal law, nor was it an
unreasonable determination of the facts. (R&R at 21-24).
does not make a specific objection to this recommendation.
Nonetheless even if an objection was implied in
Petitioner's filing (Doc. 35), this Court, considering
this Ground de novo, agrees with the R&R that the state
court's decision was not contrary to nor and unreasonable
application of federal law, nor was it an unreasonable
determination of the facts. Accordingly, relief on Ground 1
Ground 2, Petitioner claims that he did not received adequate
Miranda warnings. The R&R concludes that this
claim was not fairly presented to the state courts and is now
procedurally defaulted. (R&R at 13-14). The R&R
further finds that Petitioner has failed to show cause and
prejudice to overcome this procedural default or actual
innocence. (R&R at 18-19). As a result, the R&R
recommends that relief on this claim be denied.
objects and argues that Martinez v. Ryan, ___ U.S.
___, 132 S.Ct. 1309 (2012) is a basis to excuse his default
in state court. (Doc. 35 at 15-21). In general,
Martinez held that a federal court considering a
habeas petition could consider the merits of a defaulted
ineffective-assistance-of-trial-counsel claim if that claim
was defaulted in ...