United States District Court, D. Arizona
Honorable Steven P. Logan, United States District Judge.
Court has before it Petitioner's Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1),
Respondents' Limited Answer (Doc. 49), and
Petitioner's Traverse (Doc. 54). We also have before us
the Report and Recommendation (R&R) of United States
Magistrate Judge Bridget S. Bade (Doc. 55), recommending
denial of the Petition, Petitioner's timely Objections
(Doc. 58), and the Respondents' Response to the
Petitioner's Objections to the Report and Recommendation
was indicted, December 17, 2009, on five counts: first degree
murder (Count 1); attempted first-degree murder (Count 2);
aggravated assault (Count 3); and leaving the scene of a
serious injury accident (Counts 4 and 5) (Doc. 10, Ex.
Finding several aggravating factors, the jury convicted the
Petitioner of second degree murder which is the lesser
included offense of Count 1 (Doc. 10, Ex. E). The Petitioner
was also convicted of Counts 3-5 and acquitted on Count 2
Petitioner was sentenced to a presumptive 18 year prison term
for Count 1, a 15 year prison term for Count 3, and two
presumptive, concurrent, 3.5 year prison terms on Counts 4
and 5 (Doc. 10, Ex. G). The trial court ordered consecutive
sentencing on Counts 1 and 3 and consecutively to the
concurrent terms of prison for Counts 4 and 5 (Id.).
Petitioner raises 4 grounds for relief in his Petition for
Writ of Habeas Corpus. In Ground 1, the Petitioner
argues that his trial counsel was ineffective because counsel
did not consult an independent expert; Ground 2, the
Petitioner argues the trial counsel was ineffective because
counsel did not properly and timely notice the defense of
superseding cause pursuant to Ariz. R. Crim. P. 15.2;
Ground 3, the Petitioner argues trial counsel was
ineffective because counsel failed to request the appropriate
jury instruction relative to superseding cause; and
Ground 4, the Petitioner argues the trial counsel
was ineffective because counsel failed to adequately cross
examine the medical examiner with facts contained in the
discovery (Doc. 1 at 19-24). Respondents argue that the
claims of the Petitioner are unexhausted, procedurally
defaulted and that the Petition should be denied (Doc. 49).
Bade concluded the Petitioner's claims are procedurally
barred from federal habeas corpus review (Doc. 55).
Additionally, the magistrate judge further concluded that the
Petitioner has not established a basis to overcome that bar
Objections to the Report and Recommendation, Petitioner
articulated his displeasure with Judge Bade's findings
and conclusions (Doc. 58 at 1-5). The Petitioner also repeats
the same arguments that were laid out in the Petition (Doc. 1
at 19-24) and Traverse (Doc. 54 at 1-6).
district judge "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). When a party
files a timely objection to an R&R, the district judge
reviews de novo those portions of the R&R that
have been "properly objected to." Fed.R.Civ.P.
72(b). A proper objection requires specific written
objections to the findings and recommendations in the
R&R. See United States v. Reyna-Tapia,
328 F.3d 1114, 1121 (9th Cir. 2003); 28 U.S.C. §
636(b)(1). It follows that the Court need not conduct any
review of portions to which no specific objection has been
made. See Reyna-Tapia, 328 F.3d at 1121; see
also Thomas v. Arn, 474 U.S. 140, 149 (1985) (discussing
the inherent purpose of limited review is judicial economy).
Further, a party is not entitled as of right to de
novo review of evidence or arguments which are raised
for the first time in an objection to the R&R, and the
Court's decision to consider them is discretionary.
United States v. Howell, 231 F.3d 615, 621-622 (9th
Court finds that although the Petitioner filed objections
(Doc. 54), he failed to provide specific written objections
to the findings and recommendations in the R&R.
Nonetheless, the Court has undertaken an extensive review of
the sufficiently developed record and the objections to the
findings and recommendations in the very detailed R&R,
without the need for an evidentiary hearing.
conducting a de novo review of the issues and
objections, the Court reaches the same conclusions reached by
Judge Bade. Specifically, the Court finds the claims of the
Petitioner are procedurally barred from federal habeas corpus
review. Additionally, the Petitioner has failed to establish
a basis to overcome that bar.
carefully reviewed the record, the Petitioner has not shown
that he is entitled to habeas relief. Finding none of
Petitioner's objections have merit, the R&R will be
adopted in full. Accordingly, IT IS ORDERED:
1. That the Magistrate Judge's Report and Recommendation
(Doc. 55) is accepted and
adopted by the Court;
2. That the Petitioner's Objections (Doc. 58) are
3. That the Petition for Writ of Habeas Corpus (Doc. 1) is
denied and this action is dismissed