Turner v. Ryan

          ORDER

          HONORABLE JENNIFER G. ZIPPS UNITED STATES DISTRICT JUDGE

         Pending before the Court is Magistrate Judge Jacqueline Rateau's Report and Recommendation that the Court deny Petitioner's Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 28.) Petitioner has filed an objection to the report. (Doc. 29.) Respondents did not file a response.

         Having considered the Report and Recommendation and the arguments raised in Petitioner's Objection, the Court will overrule Petitioner's Objection and adopt Magistrate Judge Rateau's Recommendation to deny the Petition.

         I. Background

         Following a jury trial, Petitioner was convicted of criminal damage and four counts of aggravated driving under the influence of an intoxicant.^[1] In the pending Amended Petition for Writ of Habeas Corpus, Petitioner seeks relief on eight grounds: (1) the warrantless blood draw constituted an illegal search and seizure; (2) his counsel was ineffective due to a conflict of interest, and because he did not meet with Petitioner, file motions, challenge video and audio evidence, call a “star” witness at trial, prepare for trial, or present a sufficient defense; (3) the trial court abused its discretion in denying Petitioner new counsel; (4) the chain of custody for Petitioner's blood sample was incomplete; (5) his counsel was ineffective for failing to request a mitigation hearing; (6) the trial court abused its discretion by using Petitioner's prior convictions to enhance his sentence; (7) the charges were duplicitous; and (8) his counsel was ineffective, the prosecutor engaged in misconduct, and there were due process violations concerning juror bias. (Doc. 11.)

         The Magistrate Judge concluded Grounds 1, 2, 4, and 7 were procedurally defaulted because Petitioner failed to raise the claims on direct appeal, ^[2] and Grounds 3, 6, and part of Ground 8, were procedurally defaulted because Petitioner failed to fairly present the basis for these claims to the state court. The Magistrate Judge further concluded that Petitioner failed to establish that a miscarriage of justice would result from the denial of review. The Magistrate Judge recommended denial of Ground 5 and a portion of Ground 8 on the merits.

         In his Objection, Petitioner concedes that he failed to exhaust grounds 1, 2, 3, 4, 6, 7 and part of 8, but argues that his procedural default should be excused because he “professed his innocence from the very beginning” of the case and because he can show cause for the default. (Doc. 29 at 8.)^[3] Petitioner also argues that he did not raise his ineffective assistance of counsel claims on direct appeal on the advice of counsel. Petitioner asserts that this failure should be excused due to his counsel's erroneous advice. Finally, Petitioner asserts that his claims are meritorious.

         II. 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; Reyna-Tapia, 328 F.3d at 1121.

         III. Discussion

         A. Grounds One, Three, Four, Six, Seven, and a portion of Ground Eight are procedurally defaulted

         As Petitioner does not challenge the Magistrate Judge's determination that Grounds 1, 3, 4, 6, 7 and part of Ground 8 are procedurally defaulted, these claims are precluded from federal habeas review unless Petitioner is able to show cause and prejudice to excuse the default or a fundamental miscarriage of justice. As discussed infra, Petitioner fails to make these showings.

         B. Ground Two is procedurally defaulted because Petitioner failed to properly raise it during the post-conviction relief proceeding

         In Ground 2, Petitioner asserts that trial counsel, Stuart DeHaan, was ineffective due to a conflict of interest, and because counsel did not meet with Petitioner, file motions, challenge video and audio evidence, call a “star” witness to testify at trial, prepare for trial, or present a sufficient defense.^[4] Petitioner contends that the conflict between himself and DeHaan arose when DeHaan was originally appointed to represent Petitioner and Petitioner opted to hire different counsel because he was dissatisfied with DeHaan's performance. (Doc. 11 at 39; see also Doc. 11 at 51.) When Petitioner's retained counsel later withdrew, DeHaan was once again appointed to represent Petitioner. (Doc. 11 at 39.) Petitioner claims that his earlier “fir[ing]” of DeHaan “caused a major conflict” ...