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Garza v. Ryan

United States District Court, D. Arizona

August 24, 2016

Ricardo Garza, Petitioner,
v.
Charles L Ryan, et al., Respondents.

          ORDER

          James A. Teilborg Senior United States District Judge

         Pending 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).

         I. Review of R&R

         This 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.”).

         In this case, the Court will review the portions of the R&R to which Petitioner objected de novo.

         II. Review of State Court Decision

         The 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”[1] 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).

         III. Petition

         The 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.

         A. Ground 1

         Petitioner 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).

         Petitioner 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 is denied.

         B. Ground 2

         In 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.

         Petitioner 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 ...


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