United States District Court, D. Arizona
A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE
before the Court is the Report and Recommendation
(“R&R”) (Doc. 31) from the Magistrate Judge
recommending that the Petition for Writ of Habeas Corpus in
this case be denied. Petitioner has filed objections to the
R&R. (Doc. 34).
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.”).
Accordingly, the Court will review the portions of the
R&R to which Petitioner objected de novo.
R&R summarized the facts underlying this case as follows.
On May 6, 2012, Petitioner was placed on lifetime probation.
(Doc. 31 at 1-2). Thereafter, following a warrantless search
of Petitioner's residence, Petitioner was arrested due to
items found in the residence. (Id. at 2). Following
his arrest, at the detention facility, Petitioner was
required by the probation officer to provide a urine sample.
(Id.). The sample tested positive for
later pleaded guilty. (Id. at 3-4). As the R&R
recounts: “During the May 9, 2016, change of plea
hearing, Petitioner's attorney recited the following
factual basis for his plea: ‘[O]n or about December 3,
2015, in the Verde Valley Justice Court jurisdiction in
Yavapai County, that Mathew Jager used methamphetamine, he
knew it was methamphetamine and it was a usable amount.'
(Doc. 26-2, Ex. JJ, at 258.).” (Doc. 31 at 4, n. 2).
R&R summarized the claim in this case as follows:
“On September 19, 2017, Petitioner filed an Amended
Petition alleging he was ‘denied his Fifth Amendment
right' against self-incrimination when he was
‘compelled' to provide a urine sample as a term of
probation that was later used against him in a criminal
prosecution. (Doc. 13.).” (Doc. 31 at 3).
R&R recommends that this Court find that, by pleading
guilty, Petitioner waived his right to bring this claim.
(Doc. 31 at 3-5) (citing “See United States v.
Caperell, 938 F.2d 975, 977 (9th Cir. 1991) (a guilty
plea generally waives all claims of a constitutional nature
occurring before the plea); Haring v. Prosise, 462
U.S. 306, 321 (1983) (‘[W]hen a defendant is convicted
pursuant to his guilty plea rather than a trial, the validity
of that conviction cannot be affected by an alleged Fourth
Amendment violation because the conviction does not rest in
any way on the evidence that may have been improperly
seized.'); Ortberg v. Moody, 961 F.2d 135,
136-38 (9th Cir. 1992) (petitioner's guilty plea barred
habeas consideration of claims, which included claim of an
objects to a one fact; specifically, Petitioner argues:
“The magistrate [judge] made an unsupported factual
finding that the search of the residence uncovered a
‘usable amount of methamphetamine'.” (Doc. 34
at 1). Respondent replied to this objection. (Doc. 35).
Preliminarily, Respondent argues that Petitioner cannot raise
this issue for the first time in his reply. On the merits,
Respondent argues, “Jager argues for the first time to
the characterization that he pled guilty to a ‘usable
amount' of methamphetamine found in his residence.
(Objection, at 1.) However, that language was directly
derived from his counsel's recitation of the factual
basis for Jager's plea of guilt and therefore a supported
factual finding. (Report, at 2; Answer at 3.).”) (Doc.
35 at 2).
effort to determine whether this objection is material to
this case, the Court has read the plea agreement, the change
of plea transcript and the sentencing transcript on this
charge. (Doc. 26-2 at 248-276; Doc. 26-1 at 11-15). In both
transcripts and the plea agreement, the charge is
consistently referred to as “possession or use
of dangerous drugs, methamphetamine.” (Doc. 26-2 at
250) (emphasis added). The factual basis quoted above from
the change of plea hearing supports both theories of the
offense. Moreover, as to the “use” factual basis,
it would seem impossible for Petitioner to have used
methamphetamine without also possessing it. Thus, regardless
of whether the possession stemmed from the methamphetamine
found at the residence (or in the purse) or some other
methamphetamine that was already used by the time of the
search, Defendant admitted to possessing and using
methamphetamine. As a result, this objection is overruled.
indicated above, the R&R recommends this Court find that
Petitioner's claims in this case were waived when he