United States District Court, D. Arizona
C. COLLINS CHIEF UNITED STATES DISTRICT JUDGE
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 &
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.
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).
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
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
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
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.”).
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