Hussein v. Schriro et al

Filing 35

ORDER - IT IS ORDERED: The Magistrate Judge's 28 Report and Recommendation is accepted. The 1 Petition for Writ of Habeas Corpus is denied. Petitioner's 26 Motion for Discovery and 32 Motion for New Trial are denied. The Clerk is directed to terminate this action. Signed by Judge David G Campbell on 1/21/10. (SAT)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WO IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) ) Petitioner, ) ) vs. ) Charles L. Ryan, Director of the Arizona ) ) Department of Corrections; and the Attorney General of the State of Arizona, ) ) ) Respondents. ) ) Abo Obaida Hussein, No. CV-08-1839-PHX-DGC (MEA) ORDER In February 2006, a state court jury convicted Abo Hussein on four counts of sexual contact with a minor. Hussein received a 52-year sentence. The Arizona Court of Appeals affirmed the conviction and sentence. Hussein did not seek review by the Arizona Supreme Court, nor did he seek collateral post-conviction relief. Hussein commenced this action by filing a petition for writ of habeas corpus pursuant to 28 U.S.C. 2254. Dkt. #1. United States Magistrate Judge Mark Aspey has issued a report and recommendation ("R&R") that the petition be denied. Dkt. #28. Petitioner has filed objections to the R&R. Dkt. ##31, 34. For reasons that follow, the Court will accept the R&R and deny the petition. The petition asserts six grounds for relief based on alleged violations of Petitioner's rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. Dkt. #1. The Magistrate Judge finds that each ground for relief is procedurally defaulted because Petitioner did not fairly present his constitutional claims to the state courts, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the time to raise those claims in state court has expired, and Petitioner has not shown cause and prejudice or a miscarriage of justice sufficient to overcome the procedural default. Dkt. #28. The Court may accept, reject, or modify the findings and recommendations made by the Magistrate Judge. See 28 U.S.C. 636(b)(1); Fed. R. Civ. P. 72(b)(3). The Court must undertake a de novo review of those portions of the R&R to which specific objections are made. Id.; see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). While Petitioner continues to assert a denial of his constitutional rights in the state court proceedings (Dkt. #31, 34), he does not object to the Magistrate Judge's finding that each federal claim raised in his habeas petition is barred by procedural default (see id.). The Court will therefore accept the Magistrate Judge's recommendation and deny the petition as procedurally defaulted. See Reyna-Tapia, 328 F.3d at 1121 ("[Section 636(b)(1)] makes clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise.") (emphasis in original); Thomas v. Arn, 474 U.S. 140, 149 (1985) (same). IT IS ORDERED: 1. 2. 3. The Magistrate Judge's R&R (Dkt. #28) is accepted. The petition for writ of habeas corpus (Dkt. #1) is denied. Petitioner's motion for discovery (Dkt. #26) and motion for new trial (Dkt. #32) are denied. 4. The Clerk is directed to terminate this action. DATED this 21st day of January, 2010. -2-

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