Morris v. Ryan

          ORDER

          James A. Teilborg Senior United States District Judge.

         Pending before the Court is the Report and Recommendation (“R&R”) from the Magistrate Judge recommending that the Petition for Writ of Habeas Corpus in this case, filed pursuant to 28 U.S.C. § 2254, be denied. (Doc. 14). Petitioner filed objections to portions of the R&R (Doc. 15), and Respondents replied to those objections (Doc. 16).

         I. Legal Standard

         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 Petition in this case was filed under 28 U.S.C. § 2254 because Petitioner is incarcerated based on a state conviction. With respect to any claims that Petitioner exhausted before the state courts, under 28 U.S.C. §§ 2254(d)(1) and (2) this Court must deny the Petition on those claims unless “a state court decision is contrary to, or involved an unreasonable application of, clearly established Federal law” or was based on an unreasonable determination of the facts. See Lockyer v. Andrade, 538 U.S. 63, 71 (2003).

         II. Discussion

         Petitioner made 9 claims in the Petition. (Doc. 14 at 3-4). The R&R recommends that this Court deny relief on all claims. (Id. at 1). Petitioner objected to the R&R's recommendation on claims one and six. (Doc. 15). Respondents replied to those objections. (Doc. 16).

         As discussed above, this Court need only review the portions of the R&R to which there is an objection. Therefore, the Court adopts the recommendation of the R&R on claims 2-5 and 7-9, and relief will be denied as to those claims.

         A. Claim 1

         In claim 1, Petitioner alleges there was insufficient evidence to support his conviction. (Doc. 15 at 4). The R&R discusses the law governing claims of sufficiency of the evidence at pages 8-9. Neither party objected to this statement of the law, and the Court accepts it.

         As recounted in the R&R, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Doc. 14 at 10 (quotation and citation omitted)). In his objections, Petitioner argues that his attorney should have called an expert. (Doc. 15 at 4). However, Petitioner does not explain what the topic of the expert testimony would have been. (Id.). Further, Petitioner does not argue that the evidence presented was insufficient to convict him. (Id.). He instead argues that additional, hypothetical evidence might have produced a different result. (Id.). Such an argument fails to meet the test required, namely could the trier of fact have found Petitioner guilty beyond a reasonable doubt.

         Thus, the objections do not change the R&R conclusion that the Arizona Court of Appeals decision that there was sufficient evidence to convict Petitioner was not contrary to or an unreasonable application of clearly established federal law, nor an unreasonable determination of the facts. Accordingly, relief on this claim will be denied.

         B. Claim 6

         In claim 6, Petitioner alleges his counsel was ineffective. (Doc. 14 at 11-12). Petitioner concedes that he did not present his theories of ineffective assistance of counsel to the state courts and that his claims are procedurally defaulted. (Doc. 15 at 2). However, Petitioner argues that his claims fall under ...