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Vanderschuit v. Ryan

United States District Court, D. Arizona

December 21, 2016

Dell Rainbow Vanderschuit, Petitioner,
v.
Charles L Ryan, et al., Respondents.

          ORDER

          James A. Teilbrorg Senior United States District Judge

         Pending 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).

         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.”).

         II. Petition

         The 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 procedural bar.

         The 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.

         A. Claims 4(a), 4(b), and 4(c)

         Claim 4 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;[1] and e) that the trial court gave an incorrect definition of attempt.[2] (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.

         As to 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”[3]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).

         On 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).

         In his 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.

         B. Claims 1, 5, and 6

         The R&R concludes that claims 1, 5, and 6 are all state law claims that are not cognizable in a federal ...


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