Harris #198341 v. Ryan et al

Filing 33

ORDER ACCEPTING AND ADOPTING the 32 Report and Recommendation as an Order of this Court. ORDERED DENYING AND DISMISSING WITH PREJUDICE the 1 Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. ORDERED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal are DENIED. ORDERED the Clerk of Court shall terminate this action and enter judgment accordingly. Signed by Judge Diane J Humetewa on 2/13/2015. (LFIG)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Shaun Michael Harris, Petitioner, 10 11 ORDER v. 12 No. CV-13-01888-PHX-DJH Charles L. Ryan, et al., 13 Respondents. 14 This matter is before the Court on Petitioner’s Petition for Writ of Habeas Corpus 15 pursuant to 28 U.S.C. § 2254 (Doc. 1) and the Report and Recommendation (“R&R”) 16 issued by United States Magistrate Judge Michelle H. Burns (Doc. 32). 17 asserts seven grounds for relief. After a thorough analysis, Judge Burns made the 18 following determinations. As to ground one, alleging a Fourth Amendment violation 19 based upon the search and seizure of Petitioner's cell phone, Judge Burns found that it 20 was not cognizable on federal habeas review because Petitioner had a full and fair 21 opportunity to litigate that constitutional claim in the Arizona state courts. Judge Burns 22 likewise found that Petitioner did not state a basis for federal habeas review with respect 23 to grounds two, five and six because each "challenge[d] the state court's application of the 24 Arizona Rules of Evidence and Arizona's statutory sentencing scheme[,]" rather than 25 alleging federal constitutional or statutory violations. Pet. (Doc. 32) at 8:6-7. The Petition 26 Petitioner's remaining grounds, three, four and seven, Judge Burns found, failed on 27 the merits. In each, Petitioner alleged that he received ineffective assistance of counsel 28 ("IAC") for a variety of reasons. As Judge Burns soundly reasoned, "[b]ecause 1 Petitioner has not demonstrated that trial counsel's performance was deficient or that he 2 was prejudiced as a result, the state court's rejection of Ground Three was not an 3 unreasonable application of Strickland [v. Washington, 466 U.S. 668 (1984)]." Pet. 4 (Doc. 32) at 13:12-14. Judge Burns also found grounds four and seven to be without 5 merit because Plaintiff did not carry his burden under Strickland. 6 In recommending denial of the Petition and dismissal with prejudice, Judge Burns 7 expressly advised the parties that they had fourteen days to file objections and that the 8 failure to file timely objections “may result in the acceptance of the [R & R] by the 9 district court without further review." Pet. (Doc. 32) at 16:1-2) (citing United States v. 10 Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)). She further advised the parties that 11 "[f]ailure timely to file objections to any factual determinations of the Magistrate Judge 12 will be will be considered a waiver of a party’s right to appellate review of the findings of 13 fact in an order or judgment entered pursuant to the Magistrate Judge’s 14 recommendation." (Id. at 16:3-6) (citing Rule 72, Federal Rules of Civil Procedure). 15 The parties have not filed objections and the time to do so has expired. Absent 16 any objections, the Court is not required to review the findings and recommendations in 17 the R&R. See Thomas v. Arn, 474 U.S. 140, 149 (1989) (The relevant provision of the 18 Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C), “does not on its face require any 19 review at all . . . of any issue that is not the subject of an objection.”); Reyna-Tapia, 328 20 F.3d at 1121 (same); Fed.R.Civ.P. 72(b)(3) (“The district judge must determine de novo 21 any part of the magistrate judge’s disposition that has been properly objected to.”). 22 Nonetheless, the Court has reviewed the R&R and agrees with its findings and 23 recommendations. The Court will, therefore, accept the R&R, deny the Petition and 24 dismiss this matter with prejudice. See 28 U.S.C. § 636(b)(1)(C) (“A judge of the court 25 may accept, reject, or modify, in whole or in part, the findings or recommendations made 26 by the magistrate judge.”); Fed.R.Civ.P. 72(b)(3) (same). 27 Accordingly, 28 IT IS ORDERED ACCEPTING AND ADOPTING as an order of this Court -2- 1 Magistrate Judge Burns' R&R (Doc. 32). 2 IT IS FURTHER ORDERED DENYING AND DISMISSING WITH 3 PREJUDICE the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 4 1). 5 IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing 6 Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis 7 on appeal are DENIED because Petitioner has not made a substantial showing of the 8 denial of a constitutional right. 9 10 11 IT IS FINALLY ORDERED that the Clerk of Court shall terminate this action and enter judgment accordingly. Dated this 13th day of February, 2015. 12 13 14 15 Honorable Diane J. Humetewa United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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