Roberson v. Ryan et al

Filing 22

ORDER ADOPTING REPORT AND RECOMMENDATION, the 20 Report and Recommendation is adopted and the Petition for Writ of Habeas Corpus 1 is denied and dismissed with prejudice; a Certificate of Appealability and leave to proceed in forma pauperis on ap peal are denied; dismissal of certain portions of the petition is justified by a plain procedural bar and jurists of reason would not find the ruling debatable; on the remaining portions of the petition, Petitioner has not made a substantial showing of the denial of a constitutional right. Signed by Senior Judge Roslyn O Silver on 5/27/14. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Qurian Vere Roberson,
Petitioner,

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vs.

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Charles L. Ryan, et al.,
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Respondents.
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No. CV-12-00250-PHX-ROS
ORDER

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On March 11, 2014, Magistrate Judge David K. Duncan issued a Report and

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Recommendation (“R&R”) recommending Qurian Vere Roberson’s petition for writ of

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habeas corpus be denied. (Doc. 20). Petitioner filed objections. (Doc. 21). For the

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following reasons, the R&R will be adopted and the petition denied.

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I. Standard of Review and Objections

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A district judge “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). Where any party has

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filed timely objections to the R&R, the district court’s review of the part objected to must be

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de novo. Id. The Court need not conduct any review of portions where no objection is made.

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See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (district court must

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review only those portions of R&R to which there are objections).

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Petitioner “concedes to the correctness of the factual background, and post conviction

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proceedings as they are stated” in the R&R. (Doc. 21 at 1). Therefore, the Court will adopt

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that factual background in full. Petitioner appears to object, however, to everything in the

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R&R other than the factual background. Those objections are difficult to understand and

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appear to be general objections rather than “specific” objections required by Federal Rule of

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Civil Procedure 72. As noted by another judge, “general objections to an R & R are

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tantamount to no objection at all.” Gutierrez v. Flannican, 2006 WL 2816599, at *2 (D.

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Ariz. Sept. 29, 2006). Thus, the Court could summarily adopt the R&R in full. However,

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out of an abundance of caution, the Court will review de novo the R&R’s conclusion on each

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of Petitioner’s claims.

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II. Five of Petitioner’s Claims Are Barred

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The R&R concludes five of Petitioner’s claims are either “procedurally defaulted,

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noncognizable, or moot.” (Doc. 20 at 9-10). Having reviewed the claims de novo, the R&R

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is correct. That is, the R&R correctly reached the following five conclusions: 1) Petitioner

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did not identify the federal basis for portions of one claim based on his counsel allegedly

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admitting his guilt; 2) there is no constitutional right to severance of charges; 3) Petitioner

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already obtained relief on his sentencing error claim; 4) errors of state sentencing law are not

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cognizable in federal habeas; and 5) Petitioner did not raise his claim regarding the

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composition of the jury as a separate “substantive claim” during state proceedings. (Doc. 20

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at 9-10). Therefore, the R&R will be adopted regarding these five claims.

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III. Petitioner’s Remaining Claims Fail on the Merits

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The R&R addresses the merits of five claims. Having reviewed those claims de novo,

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the R&R correctly rejects all five. In brief: 1) Petitioner has not shown the state court’s

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decision on his ineffective assistance of counsel claim based on counsel’s statement

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regarding guilt was “objectively unreasonable.” See Woodford v. Visciotti, 537 U.S. 19, 27

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(2002); 2) Petitioner has not established any meaningful failure to turn over exculpatory

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evidence because the evidence was available at the time of trial; 3) Petitioner has not

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established any claim based on juror misconduct; 4) Petitioner was not denied effective

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assistance of appellate counsel because the alleged sentencing error was corrected; and 5)

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Petitioner’s ineffective assistance of counsel argument based on the firearm being inoperable
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was properly rejected because Arizona law does not require the weapon be operable.

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Accordingly,

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IT IS ORDERED the Report and Recommendation (Doc. 20) is ADOPTED and the

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Petition for Writ of Habeas Corpus is DENIED and DISMISSED WITH PREJUDICE.

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IT IS FURTHER ORDERED a Certificate of Appealability and leave to proceed in

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forma pauperis on appeal are DENIED. Dismissal of certain portions of the petition is

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justified by a plain procedural bar and jurists of reason would not find the ruling debatable.

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On the remaining portions of the petition, Petitioner has not made a substantial showing of

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the denial of a constitutional right.

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DATED this 27th day of May, 2014.

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