Flowers v. O'Neil

          ORDER

          James A. Teilborg Senior United States District Judge

         Pending before the Court is the second Report and Recommendation (“R&R”) from the Magistrate Judge recommending the petition in this case be denied. (Doc. 43). Petitioner has filed objections to the R&R. (Doc. 47).

         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). It is “clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that de novo review of factual and legal issues is required if objections are made, ‘but not otherwise.'”); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 1027, 1032 (9th Cir. 2009) (the district court “must review de novo the portions of the [Magistrate Judge's] recommendations to which the parties object.”). District courts are not required to conduct “any review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28 U.S.C. § 636(b)(1) (“the court shall make a de novo determination of those portions of the [report and recommendation] to which objection is made.”).

         The Court will review the portions of the R&R to which there was an objection de novo. However, the Court notes that Petitioner states in his objections, “Because this Court is reviewing the parties' arguments discussed in the R&R de novo, Mr. Flowers will confine his discussion here to matters that the magistrate judge overlooked.” (Doc. 47 at 1). This is an incorrect statement of the law. The Court is reviewing de novo only the portions of the R&R to which there is an objection. Petitioner's statement that “Mr. Flowers specifically asks the Court to conduct de novo review of the issues raised in the R&R” cannot overcome this Circuit's en banc case law that this Court need only review de novo factual and legal issues to which there is an objection. See Reyna-Tapia, 328 F.3d at 1121.

         II. Procedural History

         As stated in the Order at Doc. 31, this Court has accepted the procedural history of this case as set forth in the first Report and Recommendation (Doc. 26).

         III. R&R's Conclusions and Recommendation

         The R&R concludes and recommends that this Court find that Petitioner did not present his claim under Miller v. Alabama, 132 S.Ct. 2455 (2012) to the state courts within the state procedural requirements, (Doc. 43 at 10-11), that the state court's requirements are adequate and independent of federal law (Doc. 43 at 11-15), and that the state court's rules were not applied in an exorbitant manner (Doc. 43 at 15-18); thus, Petitioner's claims are procedurally barred from consideration by this Court. The R&R further concludes and recommends that this Court find that Petitioner has not shown cause and prejudice or actual innocence to excuse his procedural default. (Doc. 43 at 19-23). Thus, the R&R recommends that this Court deny the petition. (Doc. 43 at 24). As discussed further below, Petitioner has objected to specific portions of the R&R.

         IV. Objections

         Petitioner objected to the R&R on three grounds, arguing: 1) the R&R is “too solicitous” of state procedures; 2) the R&R should have applied Martinez v. Ryan, 566 U.S. 1 (2012) as cause to excuse his default; and 3) the R&R should have applied the actual innocence exception of Schlup v. Delo, 513 U.S. 298, 327 (1995), to Petitioner's noncapital sentence. (Doc. 47).

         A. State Procedures

         The Court is not exactly clear as to the nature of Petitioner's argument in objection one. First, Petitioner argues that the R&R did not address his argument that the Arizona Court sua sponte raising a procedural bar was not an adequate basis in state law to procedurally default a federal claim. (Doc. 47 at 2). However, the R&R discussed this issue at length. (Doc. 43 at 12-18). Petitioner in reality is disputing the R&R's reasoning. Specifically, Petitioner argues that the R&R concluding that the state court may follow the state rules is “too solicitous” of the state rules. (Doc. 47 at 2).

         While the Court is not exactly clear what Petitioner is proposing, it appears Petitioner is arguing that in this case the state rules are so unfavorable to him that the federal court should refuse to apply those rules as a procedural bar to a federal claim. (Doc. 47 at 2). However, there is a test for ...