Ruiz v. Schriro, et al

Filing 58

ORDER AND OPINION that 54 Report and Recommendation is adopted in part and modified in part. Ruiz's petition for writ of habeas corpus is denied and dismissed with prejudice. Signed by Judge John W Sedwick on 7/26/11. (LSP)

UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA

ROBERT ANTHONY RUIZ,

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Petitioner,
vs.
DORA B. SCHRIRO et al.,

Respondents.

2:04-cv-00918 JWS
ORDER AND OPINION
[Re: Report and Recommendation at
Docket 54]

I. MOTION PRESENTED
At docket 1, petitioner Robert Anthony Ruiz (“petitioner” or “Ruiz”) petitions for a
writ of habeas corpus. Respondents’ third supplemental response is at docket 48. At
docket 54, Magistrate Judge David K. Duncan filed a report and recommendation that
the petition be denied and dismissed with prejudice. Ruiz objects to the report and
recommendation at docket 57.
III. STANDARD OF REVIEW
The district court may “accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate.”1 When reviewing a magistrate judge’s

1

28 U.S.C. § 636(b)(1).

report and recommendation in a case such as this one, the district court conducts de
novo review of all conclusions of law,2 and any findings of fact to which objections have
been made.3 Uncontested findings of fact are reviewed for clear error.4
III. DISCUSSION
Ruiz objects to the report’s finding that ground 1 of his petition was not fairly
presented to the state courts. The report correctly concluded that Ruiz did not argue in
state court that the evidence presented at trial was insufficient to establish identity and
therefore violated his federal due process rights.5 Ruiz argues that even though he did
not cite federal authority, or mention “due process,” that the substance of his federal
due process claim was presented the state courts.6 Petitioner’s argument is foreclosed
by Duncan v. Henry,7 as he recognizes. “If state courts are to be given the opportunity
to correct alleged violations of prisoners’ federal rights, they must surely be alerted to
the fact that the prisoners are asserting claims under the United States Constitution.”8
Here, the state courts were not so apprised and the report’s finding that ground 1 was
not fairly presented to the Arizona courts is correct.

2

Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989), overruled on other grounds by
Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996).
3

28 U.S.C. § 636(b)(1).

4

Taberer v. Armstrong World Industries, Inc., 954 F.2d 888, 906 (3d Cir. 1992).

5

Doc. 54 at 12.

6

Doc. 57 at 2.

7

513 U.S. 364, 365–66 (1995).

8

Id.

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Ruiz objects to the report’s findings that grounds 5 and 6 were procedurally
defaulted. However, Ruiz’s objections were lodged only to preserve any appealable
issues and he does not present any arguments suggesting that the report’s findings
were erroneous.9 The court has reviewed the report’s findings consistent with the
standard of review articulated above and determined that the report correctly concluded
that grounds 5 and 6 are precluded by adequate and independent state grounds.10
Ruiz objects to the report’s finding that ground 7 is not cognizable on habeas
review because it is based on a state law evidentiary ruling.11 Although the report is
correct that federal habeas relief cannot be based on such a ruling,12 the thrust of
ground 7 is that the state trial court violated Ruiz’s federal due process rights by
permitting the testimony of an allegedly incompetent witness. However, petitioner’s
federal due process rights were not violated. Ruiz moved to preclude the witness’s
testimony13 and the state court found the witness competent after examining him.14
Ground 7 of the petition is without merit.
Ruiz objects to the report’s finding that ground 8 is not cognizable but only for the
purpose of preserving any appealable issues. The court has reviewed the report and

9

Doc. 57 at 3 & n.8.

10

Ground 5 was raised for the first time during post-conviction proceedings even though
it could have been raised on direct appeal. Ground 6 was untimely raised in Ruiz’s second
petition for post-conviction relief.
11

Doc. 54 at 16.

12

Estelle v. McGuire, 502 U.S. 62, 67–68 (1991).

13

Doc. 48-5 at 2–4.

14

Doc. 48-5 at 8–16.

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determined that it correctly concludes that the evidentiary ruling did not deprive Ruiz of
due process under federal law.
The report analyzed grounds 2, 3, and 4 on their merits. Ruiz’s objections to the
report’s findings with respect to those grounds are raised only to preserve any
appealable issues.15 The court has reviewed the report’s analysis of those grounds and
determined that it correctly concluded that none have merit.
IV. CONCLUSION
For the foregoing reasons, the report and recommendation at docket 54 is
ADOPTED in part and MODIFIED in part as described above. Ruiz’s petition for writ of
habeas corpus is DENIED and DISMISSED with prejudice.
DATED this 26th day of July 2011.

/S/
JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

15

Doc. 57 at 5.

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