United States District Court, D. Arizona
HONORABLE CINDY K. JORGENSON, UNITED STATES DISTRICT JUDGE.
January 31, 2018, Magistrate Judge Bruce G. Macdonald issued
a Report and Recommendation (“R&R”) (Doc. 37)
in which he recommended the Petitioner Jonathan B Edgar's
Petition Under 28 U.S.C. § 2254 for a Writ of Habeas
Corpus by a Person in State Custody (Doc. 1) be denied. The
Court has reviewed and considered the pending petition
(Doc.1), the Limited and Supplemental Answers (Docs. 18, 29),
the Reply (Doc. 32) and Supplemental Reply (Doc. 32), the
related exhibits, the Report and Recommendation (Doc. 37),
Petitioner's Objection (Doc. 41), and Respondents'
Response (Doc. 42). The Court will adopt the Magistrate
Judge's R&R and deny Petitioner's § 2254
Standard of Review
standard of review that is applied to a magistrate
judge's report and recommendation is dependent upon
whether a party files objections - the Court need not review
portions of a report to which a party does not object.
Thomas v. Arn, 474 U.S. 140, 150 (1985). However,
the Court must “determine de novo any part of
the magistrate judge's disposition that has been properly
objected to. The district judge 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); see also
28 U.S.C. § 636(b)(1). Nonetheless, “while the
statute does not require the judge to review an issue de
novo if no objections are filed, it does not preclude
further review by the district judge, sua sponte or
at the request of a party, under a de novo or any
other standard.” Thomas, 474 U.S. at 154.
Factual and Procedural History
does not object to the factual or procedural history as
stated by the Magistrate Judge, only to the conclusions that
may be drawn from his synopsis. Therefore, the Court adopts
the Magistrate Judge's recitation of the factual and
first objects to the Magistrate Judge's denial of his
motion to amend, claiming the act was an abuse of discretion.
(Doc. 41 at 2.) When denying leave to amend, the Magistrate
Judge explained that Petitioner had not clarified what claims
he was attempting to add. (Doc. 35 at 2.) In fact, the motion
is two sentences long and merely states that Petitioner
“missed additional factual and legal arguments during
the course of the proceedings.” (Doc. 34 at 1.)
Furthermore, Petitioner did not follow Local Rules of Civil
Procedure, and failed to attach his proposed amended petition
indicating how it differed from the original. See
LRCiv 15.1(a). Therefore the Magistrate Judge, in his
discretion, had ample cause to deny the request to amend the
petition. In addition, Petitioner could have filed a motion
for reconsideration, wherein he could have explained why he
failed to comply with the local rule, with a comporting
amended petition attached. For example, Petitioner did indeed
file objections to other determinations by the Magistrate
Judge as well as objections at the state court level, but
chose not to in this matter. (See Motion to Vacate
Judgment, Doc. 19; Objection to Magistrate's Order, Doc.
27, Appeal of Extradition Fees, Exh. D, Doc. 41-1 at 24.)
Petitioner claims the Magistrate Judge should have determined
that the state court committed a due process violation when
it erroneously revoked his probationary period which led to
his incarceration. (Doc. 41 at 3-4.) Petitioner attempted to
raise this issue pro se in state court, but the Rule
32 court did not address the issue. (Exh. J, Doc. 18-1 at 61;
Exh. S, Doc. 29-1 at 4 n.3.) When he attempted to raise the
issue to the Arizona Court of Appeals, the court stated:
To the extent counsel suggested in the Rule 32 petition below
that Edgar “may have other issues he wishes to raise in
a pro se Petition, ” we note that, not only is
there no constitutional right to hybrid representation,
State v. Murray, 184 Ariz. 9, 27, 906 P.2d 542, 560
(1995), but the trial court had informed Edgar more than once
that it would not accept hybrid representation, and in fact,
had asked counsel to “remind [Edgar] of the proper
(Exh. S, Doc. 29-1 at 4 n.3.)
Court will not consider a question of federal law decided on
adequate and independent state grounds. See Coleman v.
Thompson,501 U.S. 722, 732 (1991). The state court
precluded Petitioner's argument on state procedural
grounds pertaining to hybrid representation. This constitutes
a procedural bar to raising these claims in district court.
Vasquez-Mendoza v. Ryan, CV-12-01189-PHX-PGR, 2015
WL 2213335, at *10 (D. Ariz. May 11, 2015) (citing Harris
v. Reed,489 U.S. 255, 260 (1989) (“[Claims] were
disposed of on the basis of the state rule precluding hybrid
representation, and thus would be subject to a defense of
procedural bar under an independent and adequate state
ground.”); Sapp v. Ryan, No.
CV-05-52-TUC-FRZ-DTF, 2009 WL 8406770, at *4 (D. Ariz. Oct.
20, 2009), report and ...