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Sovine v. Ryan

United States District Court, D. Arizona

September 14, 2018

Roy Sovine, Petitioner,
v.
Charles L Ryan, et al., Respondents.

          ORDER

          James A. Teilborg Senior United States District Judge

         Pending before the Court is Petitioner's Petition for Writ of Habeas Corpus. The Magistrate Judge to whom this case is assigned issued a Report and Recommendation (“R&R”) recommending that the Petition be denied. (Doc. 12). Petitioner filed an objection to the R&R. (Doc. 13).

         I. Review of R&R

         This 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). The district court must review the Magistrate Judge's findings de novo only if a party objects to the Magistrate Judge's findings or recommendations. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). However, if no party objects to any fact or issue, the district court is not required to engage in “any review at all . . . .” Thomas v. Arn, 474 U.S. 140, 149 (1985). Accordingly, the Court will review the portions of the R&R to which Petitioner has objected de novo. . . .

         II. Petition for Writ of Habeas Corpus

         The Petition raises a single ground for relief, the claim that Petitioner's counsel was ineffective. As explained in the R&R, the test for determining whether counsel is ineffective requires both objective deficiency on the part of counsel and a showing that that deficient performance actually prejudiced the defense. (Doc. 12 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984))). The standard requires a showing “that counsel's errors were so serious as to deprive the defendant of a fair trial . . . whose result is reliable.” Id. (emphasis added).

         The R&R finds this claim without merit, based on the factual record of the case and the Superior Court's decision. Petitioner objects to these findings.

         III. Factual and Procedural Background

         The R&R recounts the factual and procedural background of this case. (Doc. 12 at 1-2). Petitioner objects to certain factual claims, which the Court will address below.

         A. Petitioner's Factual Claims

         Petitioner claims that there was no hearing as required by State v. Donald, 10 P.3d 1193 (Ariz.Ct.App. 2000), as referenced in the R&R at page 1. (Doc. 13). However, the R&R specifically cites to Doc. 7, Ex. B as evidence of said hearing. In the referenced document, the court transcript clearly identifies the hearing as a Donald hearing. (Doc. 7, Ex. B, page 3, line 5). Ultimately, the presence or absence of a Donald hearing in the record has no bearing on Petitioner's claim. To the extent that Petitioner claims that the lack of a Donald hearing affords him post-conviction relief, such a claim is based on state law and is not cognizable as a federal habeas claim. Estelle v. McGuire, 502 U.S. 62, 68 (1991). Moreover, Petitioner had a Donald hearing; thus the Court finds that the Magistrate Judge did not err in describing the referenced hearing as a Donald hearing.

         Petitioner claims that there was no plea negotiation. The record indicates that Petitioner confirmed to the state court that an offer was made to him at the Early Disposition Court, and that said offer was reviewed with counsel at that time. (Doc. 7, Ex. B at 9-10). The record further reflects that the plea offer was withdrawn because Petitioner was uninterested in the plea. (Doc. 7, Ex. B at 3). While the record does not reflect any plea negotiation at the Donald hearing, it does reflect the fact that negotiations had previously occurred.

         Petitioner further claims that the R&R was incorrect in its finding that Petitioner did not petition the Supreme Court for review. (Doc. 13). The Magistrate Judge relied on the information provided in Petitioner's initial filing, where the Petitioner did not indicate that he petitioned either the Arizona Supreme Court or the United States Supreme Court. (Doc. 1, page 3, questions 9-10). Petitioner now claims that he petitioned the Supreme Court for review on November 7, 2017. Regardless of whether Petitioner sought such review, nothing about this fact would indicate that his counsel was ineffective.

         Petitioner claims that he was not provided an opportunity to accept or reject a plea offer, because no such offer was in existence. (Doc. 13). Petitioner references a statement in the R&R summarizing Petitioner's claim that he was not provided an opportunity to accept or reject an offer, (Doc. 12 at 2), and subsequently quotes a non-binding Fifth Circuit case stating that “improper statements by a prosecutor may constitute reversible error where the defendant's right to a fair trial is substantially affected, ” (Doc. 13) ...


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