United States District Court, D. Arizona
Murray Snow, Chief United States District Judge
before the Court is Magistrate Judge John Z. Boyle's
Report and Recommendation (“R&R”) (Doc. 19),
which recommends that Petitioner Antonio Lozano Solis's
Petition for the Writ of Habeas Corpus (Doc. 1) be denied.
pending before the Court is Petitioner's Motion to Amend
his Objections to the R&R (Doc. 27) and his Motion to
Appoint Counsel (Doc. 30).
no party has objected to the procedural background as set
forth in the R&R, the Court adopts the background as an
accurate account. (Doc. 19 at 1-5).
court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the
magistrate.” 28 U.S.C. § 636(b)(1). “[T]he
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). 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).
reviewing habeas claims, a federal court may not grant habeas
relief unless the state's adjudication of the claims
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law
as determined by the Supreme Court, or resulted in a decision
that was based on an unreasonable determination of the facts
in light of the evidence presented in the state court
proceedings. 28 U.S.C. § 2254(d)(1); see Robertson
v. Pichon, 849 F.3d 1173, 1182 (9th Cir. 2017).
“This is a difficult to meet and highly deferential
standard for evaluating state-court rulings, which demands
that state-court decisions be given the benefit of the
doubt.” Cullen v. Pinholster, 563 U.S. 170,
181 (2011) (internal citations and quotations omitted).
Review of a prior state court decision under §
2254(d)(1) by a federal court is limited to the record
“before the state court that adjudicated the claim on
the merits.” Id. “When reviewing state
criminal convictions on collateral review, federal judges are
required to afford state courts due respect by overturning
their decisions only when there could be no reasonable
dispute that they were wrong.” Woods v.
Donald, 135 S.Ct. 1372, 1376 (2015).
default occurs when a petitioner has not exhausted a federal
habeas claim by first presenting the claim in state court and
is now barred from doing so by the state's procedural
rules (including rules regarding waiver and preclusion).
Castille v. Peoples, 489 U.S. 346, 351 (1989). If a
state court properly applies a state procedural bar during
post-conviction proceedings that prevents the state court
from considering the merits, those claims are also
procedurally defaulted. Davila v. Davis, 137 S.Ct.
2058, 2064 (2017). In Arizona, for non-capital cases, a
petitioner does not exhaust a claim for purposes of federal
review unless he has presented it to the Arizona Court of
Appeals. Castillo v. McFadden, 399 F.3d 993, 998
(9th Cir. 2004).
event of procedural default, habeas review is foreclosed
absent a showing of “cause and prejudice.”
Reed v. Ross, 468 U.S. 1, 11 (1984). To demonstrate
cause, a petitioner must show that “some objective
factor external to the defense” impeded his efforts to
raise the claim in state court. Davila, 137 S.Ct. at
2065 (internal citations and quotations omitted);
McCleskey v. Zant, 499 U.S. 467, 493 (1991).
“Prejudice is actual harm resulting from the alleged
constitutional violation.” Thomas v. Lewis,
945 F.2d 1119, 1123 (9th Cir. 1992) (internal quotation
Motion to Appoint Counsel
is no constitutional right to appointed counsel in habeas
proceedings. See Pennsylvania v. Finley, 481 U.S.
551, 555 (1987) (“[T]he right to appointed counsel
extends to the first appeal of right, and no further”).
The Court, however, does have the discretion to appoint
counsel in “exceptional circumstances.”
See 28 U.S.C. § 1915(e)(1); Wilborn v.
Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986);
Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir.
1980). “A finding of exceptional circumstances requires
an evaluation of both ‘the likelihood of success on the
merits and the ability of the petitioner to articulate his or
her claim pro se in light of the complexity of the
legal issues involved.'” Wilborn, 789 F.2d
at 1331 (quoting Weygant v. Look, 718 F.2d 952, 954
(9th Cir. 1983)); see Richards v. Harper, 864 F.2d
85, 87 (9th Cir. 1988). “Neither of these factors is
dispositive and both must be viewed together before reaching
a decision on request of counsel” under §
1915(e)(1). Wilborn, 789 F.2d at 1331.
considered both factors, the Court finds that Petitioner has
not demonstrated a likelihood of success on the merits or
that any difficulty he is experiencing in attempting to
litigate his case is due to the complexity of the issues
involved. While Plaintiff has pointed to difficulties that he
is experiencing with regards to prison resources and personal
limitations, such difficulties do not make his case