United States District Court, D. Arizona
A. Teilborg Senior United States District Judge.
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).
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.”).
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).
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).
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.
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.
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.
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.
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 ...