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-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?