United States District Court, D. Arizona
Honoraple Rosemary Marquez United States District Judge.
the Court is a Report and Recommendation (Doc. 37) in which
Magistrate Judge Rateau recommends that this Court dismiss
Petitioner's Amended Petition (Doc. 21). Also before the
Court is Petitioner's Request for Production of Documents
(Doc. 40). As explained more fully below, the Court will
adopt the Report and Recommendation in full, dismiss the
Amended Petition, and deny the Request for Production of
Documents as moot.
Jeffrey DeLoach, Jr., who is currently housed at
ASPC-Manzanita in Tucson, Arizona, brings this habeas
petition pursuant to 28 U.S.C. § 2254 challenging his
2009 conviction on two counts of aggravated assault and one
count of disorderly conduct. He is serving two consecutive
7.5 year terms on those convictions. Petitioner originally
filed his original Petition in November 2015 (Doc. 1) and an
Amended Petition in April 2016 (Doc. 21.) In June 2016,
Respondents filed a Response to the Amended Petition (Doc.
22), and Petitioner filed a Reply (Doc. 30). Magistrate Judge
Jaqueline Rateau issued a Report and Recommendation on May
21, 2018 (Doc. 37).
Amended Petition alleges that at his trial and in his
post-conviction relief (“PCR”) proceedings, he
was denied effective assistance of counsel in violation of
his 6th Amendment rights. (Doc. 21 at 13.) He claims that
trial counsel was ineffective for (1) failing to rebut
evidence that Petitioner was a gang member, (2) failing to
move for a new trial when the State withdrew from seeking the
gang-membership aggravation, (3) failing to request that
Petitioner's convictions be vacated based on allegedly
perjured testimony presented by the State regarding
Petitioner's gang membership, and (4) failing to advise
Petitioner not to testify on his own behalf. (Id. at
16-17.) Petitioner argues that these failings were so severe
as to constitute “structural error” and that they
likely affected the verdict, which Petitioner contends was
only weakly supported by the evidence. (Id. at 40,
51). Petitioner also claims that his PCR counsel was
ineffective for failing to properly present the issues
regarding trial counsel's ineffective assistance and for
inappropriately and ineffectively bringing a newly discovered
evidence claim in an attempt to obtain a new trial.
(Id. at 17, 49.) He argues that he should be granted
an evidentiary hearing in order to more fully develop his
ineffective assistance of counsel claims. (Id. at
did not raise any ineffective assistance of counsel
(“IAC”) claims in his direct appeal (see
Doc. 23-4), or in his Petition for Post-Conviction Relief
(see Doc. 24-7).
Report and Recommendation
Rateau's Report and Recommendation finds that, although
the Amended Petition was timely filed, each of the claims
raised are unexhausted and inexcusably procedurally
defaulted. (Doc. 37 at 6.) Petitioner filed an Objection to
the Report and Recommendation (Doc. 38), to which Respondents
responded (Doc. 39).
Standard of Review
district judge must “make a de novo determination of
those portions” of a magistrate judge's
“report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). The advisory committee's notes to Rule
72(b) of the Federal Rules of Civil Procedure state that,
“[w]hen no timely objection is filed, the court need
only satisfy itself that there is no clear error on the face
of the record in order to accept the recommendation” of
a magistrate judge. Fed.R.Civ.P. 72(b) advisory
committee's note to 1983 addition. See also Johnson
v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999)
(“If no objection or only partial objection is made,
the district court judge reviews those unobjected portions
for clear error.”); Prior v. Ryan, CV
10-225-TUC-RCC, 2012 WL 1344286, at *1 (D. Ariz. Apr. 18,
2012) (reviewing for clear error unobjected-to portions of
Report and Recommendation).
did not object to Judge Rateau's finding that the Amended
Petition is timely, and because the finding is not clearly
erroneous, the Court will adopt this portion of the
recommendation. (See Doc. 37 at 6-11.)
Rateau found that all of Petitioner's claims are
unexhausted and procedurally defaulted. (Doc. 37 at 13.)
Additionally, Judge Rateau found that even if procedural
default is excused under Martinez v. Ryan, 566 U.S.
1 (2012), each of Petitioner's IAC claims fail on the
merits. (Id.) Judge Rateau addressed each IAC claim
under the standard set forth in Strickland v.
Washington, 466 U.S. 668 (1984), ...