United States District Court, D. Arizona
A. Teilbrorg Senior United States District Judge
before the Court is Petitioner's Petition for Writ of
Habeas Corpus. The Magistrate Judge to whom this case was
assigned issued a Report and Recommendation (R&R)
recommending that the Petition be denied. (Doc. 44).
Petitioner filed objections to the R&R. (Doc. 53).
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.”).
Petition in this case raises 7 claims of relief. Claim 4 has
5 sub-parts. The R&R finds that only subparts (a), (b),
and (c) of claim 4 were exhausted in state court. The R&R
finds that claims 1, 5, and 6 are state law claims that are
not cognizable on habeas. The R&R also finds that claims
1, 2, 3, 5, 6, and 7 are subject to a procedural bar. The
R&R also finds that claims 4(d) and 4(e) are subject to a
R&R recounts the factual and procedural background of
this case at pages 1 -5. Neither party has objected to this
recounting. Accordingly, the Court accepts and adopts it.
Claims 4(a), 4(b), and 4(c)
presents 5 theories of ineffective assistance of appellate
counsel: specifically, appellate counsel was ineffective for
failing to argue on direct appeal: a) that attempting to
commit a crime of words is not a crime under Arizona law; b)
Petitioner was convicted of conduct not prohibited by statute
because the court gave the jury an instruction that included
an incorrect definition of prostitution; c) the state did not
present sufficient evidence to support Petitioner's
conviction for attempted child prostitution; d) that
Petitioner's conviction was improperly determined to be a
dangerous crime against children; and e) that the trial court
gave an incorrect definition of attempt. (R&R at 27,
14). As indicated above, the R&R concludes that claims
4(a), 4(b), and 4(c) were exhausted in state court.
any claims that were exhausted in state court, 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. §
post-conviction relief in state court, Petitioner argued that
appellate counsel was ineffective for not raising claims a,
b, and c on direct appeal. This Court agrees with the R&R
that the state court's finding that appellate counsel was
not ineffective for not raising claims a, b, and c on direct
appeal was not contrary to or an unreasonable application of
federal law, nor was it an unreasonable determination of the
facts. (See Doc. 44 at 27-32).
objections, (see e.g. Doc. 53 at 37), Petitioner
argues that appellate counsel was ineffective for not raising
all of these issues. However, Petitioner has failed to show
that the state court's decision on ground 4(a), 4(b), or
4(c) was contrary to or an unreasonable application of
federal law, or an unreasonable determination of the facts.
Accordingly, Petitioner's objections as to these 3
sub-parts are overruled.
Claims 1, 5, and 6
R&R concludes that claims 1, 5, and 6 are all state law
claims that are not cognizable in a federal ...