United States District Court, D. Arizona
Eulandas J. Flowers, Petitioner,
James O'Neil, Respondent.
A. Teilborg Senior United States District Judge
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).
Review of R&R
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.”).
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.
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).
R&R's Conclusions and Recommendation
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.
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).
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
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 ...