United States District Court, D. Arizona
Honorable G. Murray Snow United State District Judge
before the Court are Petitioner Shaun Hudson's Petition
for Writ of Habeas Corpus, (Doc. 1), and United States
Magistrate Judge Bridget S. Bade's Report and
Recommendation (“R & R”), (Doc. 18). The R
& R recommends that the Court deny the Petition, but
grant a certificate of appealability. (Doc. 18 at 16.)
Petitioner filed no objection to the R & R; Respondent,
however, timely filed an objection solely to the magistrate
judge's recommendation that a certificate of
appealability be granted. (Doc. 19.) This Court need only
make a de novo determination of those portions of the R &
R to which an objection is made. See United States v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en
may issue a certificate of appealability only where
“the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). “Where a district court has rejected the
constitutional claims on the merits, the showing required to
[obtain a certificate of appealability] is straightforward:
The petitioner must demonstrate that reasonable jurists would
find the district court's assessment of the
constitutional claims debatable or wrong.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). The magistrate judge
did not specify what portion, if any, of her analysis might
be found to be debatable or wrong by reasonable jurists, and
this Court can discern none.
the Court need not make a de novo review of the
Petition's merits, a brief summary will illustrate why
reasonable jurists would not find the magistrate judge's
assessment of the constitutional claims debatable. The
Petition raises only two grounds for relief. First,
Petitioner alleges that his “Fifth Amendment/Sixth
Amendment rights were violated” when the trial court
failed to suppress statements he made after stating “I
feel like I should have an attorney” during the course
of a police interrogation. This is not a substantial showing
of a constitutional violation; as the magistrate judge noted,
the Supreme Court has held, on very similar facts, that an
ambiguous statement about an attorney is not an invocation of
a suspect's Miranda rights such that continued
interrogation violates the Constitution. See Davis v.
United States, 512 U.S. 452, 459 (1994) (holding that
law enforcement officers need not “cease questioning
immediately upon the making of an ambiguous or equivocal
reference to an attorney”).
Petitioner alleges that his right to a fair trial was
violated by improper “vouching” on the part of
the prosecutor during closing arguments. Petitioner had
argued at trial that he was coerced into confessing in
violation of his Miranda rights. The prosecutor
rebutted this contention both by summarizing
Davis's holding about ambiguous invocations and
by pointing to the interrogation-the entire recording of
which had been admitted into evidence-to show that there had
been no coercion. Neither of these arguments constitutes
improper vouching. As the magistrate judge noted, the typical
case of improper vouching involves personal assurances of the
witness's truthfulness or allusions to facts outside of
the evidence that support the witness's testimony.
See United States v. Necoechea, 986 F.2d 1273, 1276
(9th Cir. 1993). Accurate summaries of the law and of the
evidence presented at trial, on the other hand, are central
to the purpose of closing arguments. See, e.g.,
United States v. Morris, 568 F.2d 396, 401 (5th Cir.
1978) (“The purpose of summations is for the attorneys
to assist the jury in analyzing, evaluating, and applying the
the issues presented in the Petition do not raise a
substantial showing of the violation of Petitioner's
constitutional rights, as demonstrated more fully by the
magistrate judge's thorough and well-reasoned analysis.
Therefore, the Court accepts and adopts the analysis of the R
& R, as well as the magistrate judge's recommendation
that the Petition be denied. The Court rejects the
recommendation that a certificate of appealability be issued
and instead denies such certificate. See 28 U.S.C.
§ 636(b)(1) (stating that the district court “may
accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate”);
Fed.R.Civ.P. 72(b)(3) (“The district judge may accept,
reject, or modify the recommended disposition; receive
further evidence; or return the matter to the magistrate
judge with instructions.”).
IS HEREBY ORDERED that:
1. Magistrate Judge Bade's R & R, (Doc. 18), is
ACCEPTED IN PART AND MODIFIED IN PART
2. Petitioner's Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254, (Doc. 1), is DENIED.
3. The Clerk of Court shall TERMINATE this action and enter
4. Pursuant to Rule 11(a) of the Rules Governing Section 2254
Cases, in the event Petitioner files an appeal, the Court
declines to issue a certificate of appealability because
Petitioner has not made a substantial showing of the denial
of a constitutional right and ...