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Matthews v. Ryan

United States District Court, D. Arizona

January 10, 2019

Donnie Ray Matthews, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          ORDER

          CINDY K. JORGENSON UNITED STATES DISTRICT JUDGE.

         On June 15, 2018, Magistrate Judge Leslie A. Bowman issued a Report and Recommendation (“R & R”) (Doc. 28) in which she recommended that the Amended Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Doc. 4) filed by Donnie Ray Matthews (“Matthews”) be denied because all of Matthews' claims are procedurally defaulted. Matthews has filed an Objection (Doc. 31) and Respondents have filed a Response (Doc. 32).

         Report and Recommendation

         This Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). Further, under 28 U.S.C. § 636(b)(1), if a party makes a timely objection to a magistrate judge's recommendation, then this Court is required to “make a de novo determination of those portions of the [report and recommendation] to which objection is made.” The statute does not “require [] some lesser review by [this Court] when no objections are filed.” Thomas v. Arn, 474 U.S. 140, 149-50, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Rather, this Court is not required to conduct “any review at all . . . of any issue that is not the subject of an objection.” Id. at 149.

         Moreover, under Fed.R.Civ.P. 72(b), a district court may adopt those parts of a magistrate judge's report to which no specific objection is made, provided they are not clearly erroneous. Thomas v. Arn, 474 U.S. 140, 151-153 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1119 (9th Cir. 2003).

         Objection to Report and Recommendation

         Matthews appears to seek to present cause and prejudice to excuse his procedural default in his Objection. Initially, Matthews argues that Arizona's procedural requirements do not permit the state courts to address the merits of his claims. Additionally, Matthews claims that he “was never given the opportunity to be heard to the denial(s) of all three of his petitions where he was never provided with copies of the rulings by state officials denying him the right to file a petition for review.” Objection (Doc. 31, p. 4). Matthews appears to assert that copies of the trial court's rulings were sent to his advisory counsel in each instance and not directly to him. (Id. at 2-3). While this Court is not required to consider those claims raised for the first time in an objection to a magistrate's report, the Court has the discretion to do so. United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000); see also Brown v. Roe, 279 F.3d 742, 745 (9th Cir. 2002). Although Matthews has not presented any reason why he did not present these claims in the briefs before the magistrate judge, the Court declines to deny relief on this basis.

         Procedural Default

         Before a federal court may review a petitioner's claims on the merits, a petitioner must exhaust his state remedies, i.e., have presented in state court every claim raised in the federal habeas petition. See Coleman v. Thompson, 501 U.S. 722, 731 (1991); O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (a state prisoner in a federal habeas action must exhaust his claims in the state courts "by invoking one complete round of the State's established appellate review process" before he may submit those claims in a federal habeas petition); Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999). Exhaustion of state remedies is required in order to give the "State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights . . . To provide the State with the necessary opportunity, the prisoner must fairly present his claim in each appropriate state court . . . thereby alerting that court to the federal nature of the claim." Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotation marks and citations omitted); see also Gentry v. Sinclair, 693 F.3d 867 (9th Cir. 867 (9th Cir. 2012).

         Where a petitioner would attempt to return to a state court to exhaust a claim and the state would refuse to permit him to do so, he has procedurally defaulted that claim. See e.g., Harris v. Reed, 489 U.S. 255, 269-70 (1989) (O'Connor, J. concurring) (noting that if a claim was not fairly presented in the state court, then the federal court must determine whether there are state remedies available). A claim is also procedurally defaulted if the state court has already declined to address the claim on the merits for procedural reasons. Franklin v. Johnson, 290 F.3d 1223, 1230 (9th Cir. 2002). The Court agrees with the magistrate judge that Matthews cannot now return to state court to exhaust his claims.

         As summarized by the magistrate judge, a procedural default may be excused:

if the petitioner can “demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Boyd v. Thompson, 147 F.3d 1124, 1126 (9th Cir. 1998). “To qualify for the fundamental miscarriage of justice exception to the procedural default rule, however, [the petitioner] must show that a constitutional violation has probably resulted in the conviction when he was actually innocent of the offense.” Cook v. Schriro, 538 F.3d 1000, 1028 (9th Cir. 2008).
If a claim is procedurally defaulted and is not excused, the claim will be dismissed with prejudice because the claim was not properly exhausted and “the petitioner has no further recourse in state court.” [Frankli ...

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