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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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Qurian Vere Roberson, Petitioner, 10 11 vs. 12 Charles L. Ryan, et al., 13 Respondents. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV-12-00250-PHX-ROS ORDER 15 16 On March 11, 2014, Magistrate Judge David K. Duncan issued a Report and 17 Recommendation (“R&R”) recommending Qurian Vere Roberson’s petition for writ of 18 habeas corpus be denied. (Doc. 20). Petitioner filed objections. (Doc. 21). For the 19 following reasons, the R&R will be adopted and the petition denied. 20 I. Standard of Review and Objections 21 A district judge “may accept, reject, or modify, in whole or in part, the findings or 22 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). Where any party has 23 filed timely objections to the R&R, the district court’s review of the part objected to must be 24 de novo. Id. The Court need not conduct any review of portions where no objection is made. 25 See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (district court must 26 review only those portions of R&R to which there are objections). 27 Petitioner “concedes to the correctness of the factual background, and post conviction 28 proceedings as they are stated” in the R&R. (Doc. 21 at 1). Therefore, the Court will adopt 1 that factual background in full. Petitioner appears to object, however, to everything in the 2 R&R other than the factual background. Those objections are difficult to understand and 3 appear to be general objections rather than “specific” objections required by Federal Rule of 4 Civil Procedure 72. As noted by another judge, “general objections to an R & R are 5 tantamount to no objection at all.” Gutierrez v. Flannican, 2006 WL 2816599, at *2 (D. 6 Ariz. Sept. 29, 2006). Thus, the Court could summarily adopt the R&R in full. However, 7 out of an abundance of caution, the Court will review de novo the R&R’s conclusion on each 8 of Petitioner’s claims. 9 II. Five of Petitioner’s Claims Are Barred 10 The R&R concludes five of Petitioner’s claims are either “procedurally defaulted, 11 noncognizable, or moot.” (Doc. 20 at 9-10). Having reviewed the claims de novo, the R&R 12 is correct. That is, the R&R correctly reached the following five conclusions: 1) Petitioner 13 did not identify the federal basis for portions of one claim based on his counsel allegedly 14 admitting his guilt; 2) there is no constitutional right to severance of charges; 3) Petitioner 15 already obtained relief on his sentencing error claim; 4) errors of state sentencing law are not 16 cognizable in federal habeas; and 5) Petitioner did not raise his claim regarding the 17 composition of the jury as a separate “substantive claim” during state proceedings. (Doc. 20 18 at 9-10). Therefore, the R&R will be adopted regarding these five claims. 19 III. Petitioner’s Remaining Claims Fail on the Merits 20 The R&R addresses the merits of five claims. Having reviewed those claims de novo, 21 the R&R correctly rejects all five. In brief: 1) Petitioner has not shown the state court’s 22 decision on his ineffective assistance of counsel claim based on counsel’s statement 23 regarding guilt was “objectively unreasonable.” See Woodford v. Visciotti, 537 U.S. 19, 27 24 (2002); 2) Petitioner has not established any meaningful failure to turn over exculpatory 25 evidence because the evidence was available at the time of trial; 3) Petitioner has not 26 established any claim based on juror misconduct; 4) Petitioner was not denied effective 27 assistance of appellate counsel because the alleged sentencing error was corrected; and 5) 28 Petitioner’s ineffective assistance of counsel argument based on the firearm being inoperable -2- 1 was properly rejected because Arizona law does not require the weapon be operable. 2 Accordingly, 3 IT IS ORDERED the Report and Recommendation (Doc. 20) is ADOPTED and the 4 Petition for Writ of Habeas Corpus is DENIED and DISMISSED WITH PREJUDICE. 5 IT IS FURTHER ORDERED a Certificate of Appealability and leave to proceed in 6 forma pauperis on appeal are DENIED. Dismissal of certain portions of the petition is 7 justified by a plain procedural bar and jurists of reason would not find the ruling debatable. 8 On the remaining portions of the petition, Petitioner has not made a substantial showing of 9 the denial of a constitutional right. 10 DATED this 27th day of May, 2014. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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