United States District Court, D. Arizona
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” ...