United States District Court, D. Arizona
K. JORGENSON UNITED STATES DISTRICT JUDGE.
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).
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.
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).
to Report and Recommendation
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.
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).
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.
summarized by the magistrate judge, a procedural default may
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 ...