United States District Court, D. Arizona
A. Teiltrorg 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 this Court deny the Petition. Doc. 34.
Petitioner filed a response to the R&R, which the Court
will construe as an objection. Doc. 37.
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 has two claims: 1) that
Petitioner's counsel was ineffective in the plea process;
and 2) that the trial court did not have subject matter
jurisdiction over Petitioner's case. The R&R
concluded that neither of these claims entitled Petitioner to
relief. Doc. 34 at 1-13. While Petitioner made some general
objections to the R&R regarding his conviction as a whole
(which the Court will discuss below), Petitioner did not
factually or legally object to the R&R's findings,
conclusions, or recommendations as to either of these claims.
Accordingly, the Court accepts and adopts the R&R as to
Petitioner's two claims. See Doc. 34 at 6-11
(explaining the state court found plea counsel was not
effective and further explaining on the merits why plea
counsel was not ineffective); Doc. 34 at 11- 12 (explaining
that the state court did not err in its jurisdictional
decision and alternatively nothing that errors of state law
are not cognizable on habeas).
begins his objections with a complaint that Petitioner does
not speak English. Doc. 37 at 1-4. This Court has already
addressed this argument (Doc. 33; Doc. 36) noting that
Respondents have avowed that an interpreter is available to
Petitioner. Petitioner's apparent refusal to use the
interpreter is not a basis to object to the R&R.
Petitioner argues that the state court process was unfair
because he does not speak English and does not understand the
American legal system. Doc. 37 at 5. However, by
Petitioner's own account, he had both an interpreter and
a lawyer in the state court proceeding. This assistance is
sufficient to overcome Petitioner's claimed lack of
understanding of the state court proceedings.
next objects that the legal assistant who helped him file his
habeas Petition was incompetent. Doc. 37 at 6. Because there
is no right to counsel on habeas, this objection does not
provide a basis for relief. See Chaney v. Lewis, 801
F.2d 1191, 1196 (9th Cir. 1986), cert. denied, 481
U.S. 1023 (1987); Kreiling v. Field, 431 F.2d 638,
640 (9th Cir. 1970) (per curiam); Eskridge v. Rhay,
345 F.2d 778, 782 (9th Cir. 1965), cert. denied, 382
U.S. 996 (1966).
Petitioner claims that his post-conviction relief counsel was
ineffective for failing to raise the ineffectiveness of
trial/plea counsel. Doc. 37 at 6-7. However, Petitioner
raised this argument pro se before the state courts (Doc.
17-2 at 21-54) and the state court ruled on Petitioner's
claim (Doc. 17-4 at 122-123 (trial court); Doc. 17-6 at 47-51
(Arizona Court of Appeals)). Therefore, even if
post-conviction relief counsel should have raised this futile
claim, Petitioner was not prejudiced because the Arizona
Courts considered the claim on the merits and denied relief.
See Strickland v. Washington, 466 U.S. 668, 687
foregoing reasons, all of Petitioner's objections are
without merit and are overruled.
on the foregoing, IT IS ORDERED that the Report and
Recommendation (Doc. 34) is accepted and adopted; the
objections (Doc. 37) are overruled; the Petition is denied
and dismissed with prejudice ...