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McMonigal v. Ryan

United States District Court, D. Arizona

March 21, 2017

Howard Ned McMonigal, III, Petitioner,
Charles L Ryan, et al., Respondents.



         Pending before the Court is Petitioner Howard Ned McMonigal, III's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, Magistrate Judge D. Thomas Ferraro's Report and Recommendation (R & R) and Petitioner's objections to the R & R. Docs. 1, 27 and 34. On November 4, 2016, this Court accepted and adopted the R & R after no objections were filed. Doc. 28. On November 21, 2016, this Court vacated the order after Petitioner filed a notice stating that he never received the R & R. Doc. 32. On December 15, 2016, Petitioner filed objections. Doc. 34. For the following reasons, the Court shall overrule Petitioner's objections, and accept and adopt the R & R.

         I. Background

         The factual and procedural background in this case is thoroughly detailed in Magistrate Judge Ferraro's R & R. The Court fully incorporates the “Factual and Procedural Background” section of the R & R into this Order.

         II. Legal Standard

         The duties of the district court in connection with a R & R are set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court may “accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3); 28 U.S.C. § 636(b)(1).

         Where the parties object to an R & R, “[a] judge of the [district] court shall make a de novo determination of those portions of the [R & R] to which objection is made.” 28 U.S.C. § 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149-50 (1985). When no objection is filed, the district court need not review the R & R de novo. Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc). The Court will not disturb a magistrate judge's order unless his factual findings are clearly erroneous or his legal conclusions are contrary to law. 28 U.S.C. § 636(b)(1)(A). “[T]he magistrate judge's decision…is entitled to great deference by the district court.” United States v. Abonce-Barrera, 257 F.3d 959, 969 (9th Cir. 2001). A failure to raise an objection waives all objections to the magistrate judge's findings of fact. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). A failure to object to a Magistrate Judge's conclusion “is a factor to be weighed in considering the propriety of finding waiver of an issue on appeal.” Id. (internal citations omitted).

         III. Discussion

         A. Claim One

         Petitioner's first alleged ground for relief is that he was denied a right to a grand jury, notice, a fair trial, and due process arising from substantial amendment of the indictment shortly before trial. Magistrate Judge Ferraro held that this ground was procedurally defaulted because Petitioner did not present this argument to the Post-Conviction Relief (“PCR”) court and it was not fairly presented to the appellate court in a procedurally appropriate manner. In his objections, Petitioner simply states that the R & R is erroneous and restates his position that was rejected by Magistrate Judge Ferraro. The Court concludes that Petitioner has not effectively objected to the R & R for this claim. Christy v. Randlett, 932 F.2d 502, 504 (6th Cir. 1991) (stating that a general objection to the magistrate judge's report without specifying an issue of contention “has the same effects as would a failure to object.”).

         B. Claim Two

         Petitioner's second claim contains three parts. First, Petitioner alleges that the prosecutor committed misconduct by knowingly presenting the false testimony of several witnesses. Second, Petitioner alleges his appellate counsel failed to raise this claim. Third, Petitioner claims that in closing arguments, the prosecutor vouched for one of the witnesses and argued facts not in evidence. Magistrate Judge Ferraro's R & R thoroughly and correctly explains why Petitioner's claims fail.

         In his objections to the R & R, Petitioner ignores the fact that the PCR court found all non-IAC claims precluded by Arizona Rule of Criminal Procedure 32.2(a). Doc. 1-4 at 50. Furthermore, the Arizona Court of Appeals found this portion to be procedurally defaulted under Arizona Rule of Criminal Procedure 32.2(a)(3) and 32.9(c)(1). Therefore, Magistrate Judge Ferraro is correct in holding this portion of the claim to be procedurally barred. See Cassett v. Stewart, 406 F.3d 614, 621 n. 5 (9th Cir. 2005) (“[T]he procedural default rule barring consideration of a federal claim applies only when a state court has been presented with the federal claim, but declined to reach the issue for procedural reasons, or if it is clear that the state would hold the claim procedurally barred.”).

         Petitioner does not discuss objections for the second portion of this claim. Thus, Petitioner has waived this portion of the claim. For the last portion, Petitioner restates his claim that the prosecutor stated that one of the witnesses was “telling the truth” during closing arguments. However, as the R & R states, the prosecutor did not opine as to whether the witness was telling the truth. Rather, the prosecutor drew reasonable inferences from ...

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