United States District Court, D. Arizona
Honorable David C. Bury, United States District Judge
matter was referred to Magistrate Judge D. Thomas Ferraro, on
August 3, 2017. Petitioner Clayton Paul Farnsworth
(Petitioner) filed a Petition for writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 (Petition). Pursuant to
Rules of Practice for the United States District Court,
District of Arizona (Local Rules), Rule (Civil) 72.1(a),
Magistrate Judge Ferraro issued a Report and Recommendation
(R&R) on September 27, 2018. (Doc. 12: R&R). He
recommends that the District Court deny and dismiss the
Petition without prejudice.
duties of the district court, when reviewing a R&R of a
Magistrate Judge, are set forth in Rule 72 of the Federal
Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The
district court may “accept, reject, or modify, in whole
or in part, the findings or recommendations made by the
magistrate judge.” Fed.R.Civ.P. 72(b), 28 U.S.C. §
636(b)(1). When the parties object to a R&R,
“‘[a] judge of the [district] court shall make a
de novo determination of those portions of the [R&R] to
which objection is made.'” Thomas v. Arn,
474 U.S. 140, 149-50 (1985) (quoting 28 U.S.C. §
636(b)(1)). When no objections are filed, the district court
does not need to review the R&R de novo.
Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th
Cir.2005); United States v. Reyna-Tapia, 328 F.3d
1114, 1121-22 (9th Cir.2003) (en banc).
extent that no objection has been made, arguments to the
contrary have been waived. McCall v. Andrus, 628
F.2d 1185, 1187 (9th Cir. 1980) (failure to object to
Magistrate's report waives right to do so on appeal);
see also, Advisory Committee Notes to Fed.R.Civ.P.
72 (citing Campbell v. United States Dist. Court,
501 F.2d 196, 206 (9th Cir. 1974) (when 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
parties were sent copies of the R&R and instructed they
had 14 days to file written objections. 28 U.S.C. §
636(b), see also, Federal Rule of Criminal Procedure
72 (party objecting to the recommended disposition has
fourteen (14) days to file specific, written objections). To
date, no objections have been filed.
Ground One of his Petition, Petitioner raises a Prosecutorial
Misconduct claim. Magistrate Judge Ferraro finds that
Petitioner failed to exhaust Ground One by raising it on
direct appeal in State court, and any attempt to exhaust this
claim now would be futile. Accordingly Ground One is
technically exhausted, procedurally defaulted, and there are
no grounds for the Court to excuse the default.
Ground Two, Petitioner raises an Ineffective Assistance of
Counsel claim (IAC). Magistrate Judge Ferraro finds that
Ground Two is unexhausted in State court. Petitioner's
IAC claim is undergoing a post-conviction proceeding brought
pursuant to Rule 32. Since Petitioner's Rule 32
proceeding is ongoing, the IAC claim in Ground Two is
unexhausted and premature.
Court has discretion to enter a stay of these proceedings if
Petitioner has good cause for failing to exhaust his claims.
However, Magistrate Judge Ferraro recommends that this Court
dismiss the Petition without prejudice rather than stay the
proceedings because a stay and abeyance is inappropriate in
this case. Dismissing the Petition without prejudice allows
Petitioner to exhaust his IAC claim in State court before
filing another petition for federal habeas relief. A petition
filed after a mixed petition has been dismissed before the
district court adjudicated any claims is to be treated as any
other first petition, not as a second or
there are no objections and review has, therefore, been
waived, the Court nevertheless reviews at a minimum, de
novo, the Magistrate Judge's conclusions of law.
Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir.
2007) (citing Turner v. Duncan, 158 F.3d 449, 455
(9th Cir. 1998) (conclusions of law by a magistrate judge
reviewed de novo); Martinez v. Ylst, 951
F.2d 1153, 1156 (9th Cir. 1991) (failure to object, alone,
will not ordinarily waive question of law, but is a factor in
considering the propriety of finding waiver)). The Court
finds the R&R to be thorough and well reasoned, without
any clear error in law or fact. See United States v.
Remsing, 874 F.2d 614, 617-618 (9th Cir. 1989) (citing
28 U.S.C. § 636(b)(1)(A) as providing for district court
to reconsider matters delegated to magistrate judge when
there is clear error or recommendation is contrary to law).
The Court accepts and adopts the R&R as the opinion of
the Court, pursuant to 28 U.S.C. § 636(b)(1).
IT IS ORDERED that the reference to the
Magistrate Judge is withdrawn. Further, the Report and
Recommendation [Doc. 12] is adopted as the opinion of the
IS FURTHER ORDERED that the Petition is dismissed
and denied without prejudice.
IS FURTHER ORDERED that the Clerk of the Court shall