Correll v. Ryan et al

Filing 43

ORDER ADOPTING REPORT AND RECOMMENDATION: IT IS HEREBY ORDERED that the Court adopts the Report and Recommendation of the Magistrate Judge (Doc. 37 ). IT IS FURTHER ORDERED DENYING Petitioner's Motion for Evidentiary Hearing (Doc. 34 ). Petit ioner's Petition for Writ of Habeas Corpus is DENIED and DISMISSED WITH PREJUDICE, terminating this case. The Clerk of the Court shall enter judgment accordingly. IT IS FURTHER ORDERED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal are DENIED because the dismissal was justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable. Signed by Senior Judge Stephen M McNamee on 2/10/16. (KGM)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Michael Emerson Correll,

No. CV-13-01380-PHX-SMM

Petitioner,

10
11

v.

12

ORDER

Charles L. Ryan, et al.,

13

Respondents.

14
15

Pending before the Court is Petitioner’s Petition for Writ of Habeas Corpus

16

pursuant to 28 U.S.C. § 2254. (Doc. 1.) The matter was referred to Magistrate Judge

17

John Z Boyle for a Report and Recommendation (“R & R”). (Doc. 21.) On October 15,

18

2015, the Magistrate Judge filed a Report and Recommendation with this Court. (Doc.

19

37.) Immediately after the Magistrate Judge filed his R & R, Petitioner requested an

20

extension of time to file his objection (Doc. 38), which the Court granted. (Doc. 40.)

21

Petitioner then timely filed his objections to the R &R (Doc. 41), to which Defendants

22

have replied (Doc. 42).

23
24

STANDARD OF REVIEW

25

The Court “may accept, reject, or modify, in whole or in part, the findings or

26

recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1)(C); see Baxter v.

27

Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991). When reviewing a Magistrate Judge’s R &

28

R, this Court “shall make a de novo determination of those portions of the report . . . to

1

which objection is made,” and “may accept, reject, or modify, in whole or in part, the

2

findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C);

3

see also Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991) (citing Britt v. Simi

4

Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983)).

5
DISCUSSION1
Having reviewed the R & R of the Magistrate Judge, the Court concludes that

6
7
8
9

Petitioner’s Petition for Writ of Habeas Corpus should be denied. The Court hereby
incorporates and adopts the Magistrate Judge’s R & R.
The Court will briefly address Petitioner’s Objections. In his Petition for Writ of

10
11
12
13
14

Habeas Corpus, Petitioner raised twenty-one (21) grounds for relief. (Doc. 6 at 2-3.)
Now, Petitioner makes only two (2) specific Objections to the Magistrate Judge’s
findings, those dealing with the issues of double jeopardy and ineffective assistance of
appellate counsel. (Doc. 41.) As to the other nineteen (19) claims, Petitioner states that,
The claims not argued here, I fully include in my objection not to be
dismissed as recommended. My not putting each claim in this objection
argument is simply to covience [sic] the Court and in no way should be
seen as conceding any part of the Habeas Petition to the Magistrate[’]s
recommendation.

15
16
17
18

(Id. at 2.)

19

The Court finds this general objection inadequate and not worthy of review. Under

20

Federal Rule of Civil Procedure 72, the district judge must review de novo those portions

21

of the R & R that have been “properly objected to.” Fed.R.Civ.P. 72 (b). A proper

22

objection requires “specific written objections to the proposed findings and

23

recommendations.” Id. (emphasis added); see 28 U.S.C. § 636(b)(1). One purpose of this

24

requirement is judicial economy—to permit magistrate judges to hear and resolve matters

25

not objectionable to the parties. See Thomas v. Arn, 474 U.S. 140, 149 (1985). Because

26

de novo review of an entire R & R would defeat the efficiencies intended by Congress, a

27
28

1

The factual and procedural history of this case is set forth in the Magistrate
Judge’s Report and Recommendation (Dkt. 279).

-2-

1

general objection “has the same effect as would a failure to object.” Warling v. Ryan, No.

2

CV 12-01396-PHX-DGC, 2013 WL 5276367, at *2 (D. Ariz. Sept. 19, 2013) (quoting

3

Howard v. Sec'y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991)). As a

4

result, the Court has no obligation to review Petitioner’s general objection to the R & R.

5

See Thomas, 474 U.S. at 149 (no review is required for “any issue that is not the subject

6

of an objection.”).

7

The Court will now turn to Petitioner’s specific objections. Petitioner first objects

8

to the Magistrate Judge’s findings regarding his complaint that his right to be free from

9

double jeopardy was violated when the state court ordered he serve consecutive sentences

10

on Counts 1, 2, and 3. The Arizona Court of Appeals determined that Petitioner’s original

11

sentences, under state law, were not designated as concurrent sentences. State v. Correll,

12

No. 1 CA-CR 11-0188, 2011 WL 6747411, at *3 (Ariz. Ct. App. Dec. 22, 2011).

13

Petitioner adamantly argues to the contrary, asserting that the Court of Appeals judge

14

misapplied Arizona sentencing laws. The Magistrate Judge found that “[f]ederal habeas

15

relief is not available for alleged errors in the interpretation or application of state law,

16

including statutes regarding imposition of sentences.” (Doc. 37 at 16-17.) This Court

17

agrees. Federal courts cannot provide relief from the misapplication or misinterpretation

18

of state laws. Estelle v. McGuire, 502 U.S. 62, 67-8 (1991) (stating that “federal habeas

19

corpus relief does not lie for errors of state law”); see, e.g., Christian v. Rhode, 41 F.3d

20

461, 469 (9th Cir. 1994).

21

Next, Petitioner objects to the Magistrate Judge’s conclusion that he was not

22

denied effective assistance of appellate counsel. Petitioner claims that appellate counsel

23

was ineffective for failing discuss with him what he thought to be appealable issues,

24

including prosecutorial misconduct and the right to confront/cross-examine the state’s

25

witness at sentencing. (Doc 1 at 28.) Petitioner also claims that appellate counsel did not

26

thoroughly review the record as evidenced by her subsequently filing an Anders Brief

27

because she found no appealable issues. (Id. at 28.) Both the Magistrate Judge and the

28

Arizona Court of Appeals concluded that there was no prosecutorial misconduct and that

-3-

1

Petitioner did not possess the right to cross-examination at sentencing, meaning appellate

2

counsel was not ineffective for failing to raise those issues on appeal. This Court agrees.

3

Having reviewed the record, the Court concludes that these claims were meritless.

4

Regardless of Petitioner’s opinion on the matter, appellate counsel was not required to

5

raise meritless claims on appeal. See Sexton v. Cozner, 679 F.3d 1150, 1157 (9th Cir.

6

2012) (“Counsel is not necessarily ineffective for failing to raise even a nonfrivolous

7

claim, so clearly we cannot hold counsel ineffective for failing to raise a claim that is

8

meritless.” (citations omitted)). Therefore, the Court finds that Petitioner is not entitled to

9

relief on this claim.

10

Having reviewed the legal conclusions of the R & R of the Magistrate Judge, and

11

the objections having been made by Petitioner thereto, the Court finds that the Magistrate

12

Judge adequately addressed all of Petitioner's arguments. Therefore, the Court hereby

13

incorporates and adopts the Magistrate Judge’s R & R.

14
CONCLUSION

15

Accordingly, for the reasons set forth,

16

IT IS HEREBY ORDERED that the Court adopts the Report and

17
18

Recommendation of the Magistrate Judge. (Doc. 37.)
IT IS FURTHER ORDERED DENYING Petitioner’s Motion for Evidentiary

19
20

Hearing. (Doc. 34.)
IT IS FURTHER ORDERED that Petitioner’s Petition for Writ of Habeas

21
22
23

Corpus is DENIED and DISMISSED WITH PREJUDICE, terminating this case. The
Clerk of the Court shall enter judgment accordingly.
IT IS FURTHER ORDERED that a Certificate of Appealability and leave to

24
25
26
27
28

proceed in forma pauperis on appeal are DENIED because the dismissal was justified by
///
///
///

-4-

1

a plain procedural bar and jurists of reason would not find the procedural ruling

2

debatable.

3

Dated this 10th day of February, 2016.

4
5
6

Honorable Stephen M. McNamee
Senior United States District Judge

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-5-