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Solis v. Ryan

United States District Court, D. Arizona

April 8, 2019

Antonio Lozano Solis, Petitioner,
Charles L. Ryan, et al., Respondents.


          G. Murray Snow, Chief United States District Judge

         Pending 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.

         Also pending before the Court is Petitioner's Motion to Amend his Objections to the R&R (Doc. 27)[1] and his Motion to Appoint Counsel (Doc. 30).


         Because 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).

         I. Legal Standard

         This 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).

         When 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).

         Procedural 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).

         In the 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 omitted).

         II. Analysis

         A. Motion to Appoint Counsel

          There 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.

         Having 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 ...

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