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Nixon v. Ryan

United States District Court, D. Arizona

October 11, 2019

Xavier Vincent Nixon, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          ORDER

          Hon. Jennifer G. Zipps Judge

         Pending before the Court is Magistrate Judge Leslie A. Bowman's Report recommending the Court deny Petitioner Xavier Nixon's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 18.) Petitioner has filed an objection to the Report and Recommendation and Respondents have filed a response. (Docs. 21, 23). Also pending is Petitioner's “motion for order to provide Petitioner and this District Court with copy of transcripts.” (Doc. 22.)

         The Court has considered the Report and Recommendation, the Petition, and arguments raised in Petitioner's Objection and Respondents' Response. For the reasons set forth below, the Court will overrule the objection and adopt Magistrate Judge Bowman's recommendation to deny the Petition. The Court will deny Petitioner's motion for transcripts.

         I. STANDARD OF REVIEW

         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). “[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). See also 28 U.S.C. § 636(b)(1); Fed R. Civ. P. 72.

         II. PROCEDURAL BACKGROUND

         On November 21, 2014, Petitioner was sentenced to a 15-year term of imprisonment and a 5-year term of probation after pleading guilty to attempted second degree murder and aggravated assault. (Doc. 12-1 at 52-53.) At the sentencing hearing, Petitioner was given written notice of his right to file for post-conviction relief (PCR), which he acknowledged. (Doc. 12-1 at 59.) The deadline for filing an “of right” PCR notice was February 19, 2015. (Doc. 12-2 at 16.)

         Almost three years later, on February 12, 2018, Petitioner filed pro se a notice and petition for post-conviction relief. (Doc. 12-2 at 15-16; Doc. 1 at 13-19; Doc. 1-1 at 1- 20.) The PCR court dismissed the notice and petition as untimely, rejecting Petitioner's argument that the untimely filing was not Petitioner's fault. (Doc. 12-2 at 15-17.) Petitioner appealed the dismissal to the Arizona Court of Appeals. (Id. at 2-12.) In addition to the claims raised in the PCR petition, Petitioner also argued the PCR court's dismissal of his petition was an unreasonable determination of the facts. (Id. at 4.) The Arizona Court of Appeals accepted review but denied relief on July 12, 2018, concluding Petitioner failed to show the PCR court's denial of the PCR petition was an abuse of discretion. (Id. at 65- 66.) Petitioner did not seek review in the Arizona Supreme Court. (Doc. 1 at 6-10.)

         On August 17, 2018, Petitioner filed the pending Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.[1] (Doc. 1). The Petition contains the following claims:

(1) Petitioner is actually innocent because the record at the change of plea hearing failed to show that he intentionally, not recklessly, caused physical injury to the victim;
(2) the indictment was multiplicitous and his convictions violated double jeopardy;
(3) first trial counsel was ineffective because counsel: (a) operated under a conflict of interest; (b) refused to file a motion to dismiss multiplicitous counts; and (c) advised Petitioner to dismiss counsel and file a double jeopardy motion; and second trial counsel was ineffective because counsel: (d) failed to file a double jeopardy motion; (e) stated erroneously Petitioner could receive consecutive terms totaling 40 years if he went to trial; (f) informed the prosecutor about a conversation counsel had with Petitioner about an inaccuracy in the plea agreement; and (g) failed to file a PCR notice for him; and
(4) the PCR court erred in failing to excuse his untimely filing of the PCR notice and petition in ...

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