United States District Court, D. Arizona
ORDER
James
A. Teilborg Senior United States District Judge
Pending
before the Court is Petitioner's Petition for Writ of
Habeas Corpus. (Doc. 1). The Magistrate Judge to whom this
case is assigned issued a Report and Recommendation
(“R&R”) recommending that the Petition be
denied and dismissed with prejudice. (Doc. 16). Petitioner
filed an objection to the R&R. (Doc. 17).
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
In his
habeas petition, Petitioner raises four grounds for relief,
each claiming a violation of Petitioner's due process
rights under the Fourth, Fifth, and Fourteenth Amendments:
(1) judicial vindictiveness, (2) judicial breach of verbal
agreement during settlement conference, (3) the court's
refusal to hold a suppression hearing, and (4) ineffective
assistance of counsel. (Doc. 1).
The
Magistrate Judge found that the state court's
determination related to Petitioner's first ground for
relief was not contrary to, nor an unreasonable application
of, federal law. (Doc. 16 at 11). The Magistrate Judge
consequently recommended that the ground be denied and
dismissed. (Id.) Petitioner objects to the
Magistrate Judge's recommendation, alleging that the
state court's decision “was/is contrary to or an
unreasonable application of federal law.” (Doc. 17 at
3).
With
regard to Petitioner's remaining grounds for relief, the
Magistrate Judge found that each of the grounds were
procedurally barred because Petitioner had not fairly
presented them in state court. (Doc. 16 at 12). The
Magistrate Judge subsequently found no excuse for
Petitioner's procedural default. (Id. at 12-13).
Petitioner objects to the Magistrate Judge's findings,
alleging that he “ha[d] fulfilled every requirement to
properly exhaust [his] federal claims according to the
law.” (Doc. 17 at 3).
III.
FACTUAL AND PROCEDURAL BACKGROUND
The
R&R recounts the factual and procedural background of
this case, based primarily on the record from state court.
(Doc. 16 at 1-3). Petitioner ostensibly “disagrees with
the [Magistrate Judge's] . . . factual findings, ”
but fails to address any specific factual inadequacies or
discrepancies. (Doc. 17 at 2). Petitioner has failed to show
that the state court record, relied on by the Magistrate
Judge, was based on an unreasonable determination of the
facts. See 28 U.S.C. § 2254(d). Accordingly,
the Court adopts that portion of the R&R.
IV.
DISCUSSION
A.
Ground One: Judicial Vindictiveness
Petitioner's
first ground for relief is under a theory of judicial
vindictiveness. (Doc. 1 at 6). Petitioner claims that the
state court judge was vindictive when sentencing him to a
13.5-year sentence after previously mentioning that a
sentence of five years would probably be imposed if
Petitioner lost at trial. (Id.). Petitioner asserts
that “when a . . . judge[']s ultimate goal is a
substantial ‘time increase, '” this leads to
a “presumption of vindictiveness violating due process,
Fourth, Fifth, and Fourteenth Constitutional
Amendments.” (Id.). The Arizona Court of
Appeals held that there was no judicial vindictiveness. (Doc.
16 at 1-2). The Magistrate Judge recommended that
Petitioner's first ground be denied and dismissed because
state court's decision was neither contrary to
established federal law nor based on an unreasonable factual
determination. (Doc. 16 at 11).
i.
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