United States District Court, D. Arizona
A. TEILHRORG SENIOR UNITED STATES DISTRICT JUDGE
before the Court is the Report and Recommendation (R&R)
from the Magistrate Judge recommending that the Petition in
this case be denied and dismissed with prejudice. (Doc. 16).
Petitioner has objected to the R&R. (Doc. 17). Respondent
has replied to the objection. (Doc. 18).
Court “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)(1). It is “clear
that the district judge must review the magistrate
judge's findings and recommendations de novo if
objection is made, but not otherwise.” United
States v. Reyna-Tapia, 328 F.3d 1114, 1121
(9th Cir. 2003) (en banc) (emphasis in
original); Schmidt v. Johnstone, 263 F.Supp.2d 1219,
1226 (D. Ariz. 2003) (“Following Reyna-Tapia,
this Court concludes that de novo review of factual
and legal issues is required if objections are made,
‘but not otherwise.'”); Klamath Siskiyou
Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d
1027, 1032 (9th Cir. 2009) (the district court “must
review de novo the portions of the [Magistrate Judge's]
recommendations to which the parties object.”).
District courts are not required to conduct “any review
at all . . . of any issue that is not the subject of
an objection.” Thomas v. Arn, 474 U.S. 140,
149 (1985) (emphasis added); see also 28 U.S.C.
§ 636(b)(1) (“the court shall make a de
novo determination of those portions of the [report and
recommendation] to which objection is made.”).
R&R, the Magistrate Judge recounted the factual and
procedural history of this case. (Doc. 16 at 1-2). Neither
party objected to this summary and the Court hereby accepts
R&R quotes this Court's prior order summarizing
Petitioner's claims in this case as follows:
In Ground One, he alleges that the State violated his Fourth
Amendment rights when it conceded that it lacked jurisdiction
in CR2004-133867 and CR2005-011654 to collect and disseminate
his DNA to CODIS and where his DNA in CODIS connected him to
the offenses in CR2011-008083. In Ground Two, Petitioner
alleges that the director of the DPS failed to protect
Petitioner's Fourth Amendment rights by disseminating and
storing an incorrect criminal history for Petitioner and
posted flyers that mischaracterized Petitioner's public
risk as a sex offender. In Ground Three, he alleges that the
DPS has failed to protect his Fourth Amendment rights by not
challenging the State's claim to match his DNA through
CODIS, which the State had “already admittedly expunged
via ‘concession of error.'” [citation
omitted] [Footnote: The Petition is written on the
court-approved form. In the space after the printed
“Ground Four” section, Petitioner wrote
“See attached supplemental.” (Doc. 1 at 9). The
supplement attached to the Petition reiterates his claim that
his Fourth Amendment rights were violated by the failure to
suppress the DNA evidence in the 2011 Case. (Id. at
(Doc. 16 at 2-3).
in summary, Petitioner raises only Fourth Amendment claims
about the collection and use of his DNA evidence.
A Fourth Amendment claim is not cognizable in federal habeas
proceedings if a petitioner has had a full and fair
opportunity to litigate the claim in state court. Stone
v. Powell, 428 U.S. 465, 481-82 (1976). The relevant
inquiry is whether petitioner had the opportunity to litigate
his claim, not whether he did in fact do so or even whether
the claim was correctly decided. Gordon v. Duran,
895 F.2d 610, 613 (9th Cir. 1990); Locks v. Sumner,
703 F.2d 403, 408 (9th Cir.), cert. denied, 464 U.S.
Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir.
1996), as amended (May 8, 1996).
objections, Petitioner does not dispute that he had a full
and fair opportunity to litigate whether his DNA was properly
collected in state court. Further, the record shows that the
R&R is correct that Petitioner in fact did fully litigate
this issue. Petitioner moved to suppress the DNA evidence,
which the trial court denied. (Doc. 11 at 3,
7-9).Petitioner appealed the trial court's
ruling; and, the Arizona Court of Appeals affirmed the trial
court's denial of the motion to suppress. (Doc. 11 at
in Petitioner's objections (which are primarily focused
on the merits of his Fourth Amendment challenges) overcomes
the R&R's conclusion that Petitioner's claims in
this case are not cognizable as federal habeas claims because
he had a full and fair opportunity to litigate the claims in
state court. Therefore, the Petition will be denied.
on the foregoing, IT IS ORDERED that the
R&R (Doc. 16) is accepted; the objections are overruled;
the Petition is denied and dismissed, with prejudice; and the
Clerk of the Court shall enter judgment accordingly.
IS FURTHER ORDERED that pursuant to Rule 11 of the
Rules Governing Section 2254 Cases, in the event Petitioner
files an appeal, the Court denies issuance of a certificate
of appealability because dismissal of the petition is based
on a plain procedural bar and jurists of reason would not
find this ...