Benedetto v. Arizona, State of

Filing 35

ORDER that the Report and Recommendation (Doc. 28 ) is accepted and adopted. The Fourth Amended Habeas Petition (Doc. 14 ) is denied and dismissed with prejudice and the Clerk of the Court shall enter judgment accordingly. IT IS FURTHER ORDERED tha t Petitioner's motion for certificate of appealability and to proceed in forma pauperis on appeal (Doc. 31 ) is denied. IT IS FINALLY ORDERED that Petitioner's motions for an interlocutory certificate of appealability and to file an interlocutory appeal in forma pauperis (Docs. 29 and 30 ) are denied as moot. Signed by Senior Judge James A Teilborg on 4/1/2015. (KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Christopher John Benedetto,
Petitioner,

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ORDER

v.

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No. CV-14-0033-PHX-JAT

Arizona, State of, et al.,

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Respondents.

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Pending before the Court is Petitioner’s Fourth Amended Habeas Petition. (Doc.

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14).

The Magistrate Judge to whom this case was assigned, issued a Report and

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Recommendation (R&R) (Doc. 28) recommending that the Fourth Amended Habeas

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Petition be denied by this Court. Preliminarily, the Court will review the procedural

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posture of this case.

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In the Order in which this Court permitted the filing and service of the Fourth

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Amended Habeas Petition (Doc. 13), this Court dismissed Ground Four of the Petition

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because it was based on an alleged error of state law which is not cognizable on Federal

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habeas review. See 28 U.S.C. § 2254(a). Petitioner sought an interlocutory certificate of

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appealability on this issue. (Doc. 24). The Magistrate Judge denied this motion. (Doc.

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25). Petitioner then refiled this Motion with the Ninth Circuit Court of Appeals, which

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transferred this motion to this Court. (Doc. 29). While this Motion was pending,

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Petitioner proceeded to file an interlocutory appeal with the Ninth Circuit Court of

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Appeals. (Doc. 32). The Ninth Circuit Court of Appeals dismissed the interlocutory

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appeal. (Doc. 34).

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Thus, still pending before this Court is both a request to obtain an interlocutory

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certificate of appealability on the dismissal of Ground Four (Doc. 29) and a request to

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proceed in forma pauperis on the interlocutory appeal (Doc. 30). After both of these

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were filed, the Magistrate Judge issued the R&R that is now pending before this Court.

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(Doc. 28). Petitioner did not file objections to the R&R. Petitioner did renew his request

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for a certificate of appealability and for leave to proceed in forma pauperis on all grounds

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raised in his Fourth Amended Habeas Petition, including previously dismissed Ground

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Four. (Doc. 31). Because the Court will proceed to the final determination of this case,

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the Court will deny the requests related to an interlocutory appeal as moot.

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As indicated above, Petitioner did not file objections to the R&R. This Court

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

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made by the magistrate judge.” 28 U.S.C. ' 636(b)(1). It is “clear that the district judge

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must review the magistrate judge’s findings and recommendations de novo if objection is

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made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.

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2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226

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(D.Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that de novo review of

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factual and legal issues is required if objections are made, ‘but not otherwise.’”); Klamath

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Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 1027, 1032 (9th Cir.

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2009) (the district court “must review de novo the portions of the [Magistrate Judge=s]

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recommendations to which the parties object.”).

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conduct “any review at all . . . of any issue that is not the subject of an objection.”

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Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28 U.S.C. '

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636(b)(1) (“the court shall make a de novo determination of those portions of the [report

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and recommendation] to which objection is made.”).

District courts are not required to

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Thus, the Court accepts and adopts the R&R on Grounds One through Three of the

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Fourth Amended Habeas Petition. However, the Court will consider the request for a

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certificate of appealability de novo because Petitioner filed a separate motion on that

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issue which the Court will construe as an objection to the R&R on that issue.

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A judge may issue a COA “only if the applicant has made a substantial showing of

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the denial of a constitutional right.” 28 U.S.C. ' 2253(c)(2). “Where a district court has

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rejected the constitutional claims on the merits, the showing required to satisfy ' 2253(c)

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is straightforward: The petitioner must demonstrate that reasonable jurists would find the

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district court’s assessment of the constitutional claims debatable or wrong.” Slack v.

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McDaniel, 529 U.S. 473, 483-84 (2000). “When the district court denies a habeas

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petition on procedural grounds without reaching the prisoner’s underlying constitutional

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claim, a COA should issue when the prisoner shows, at least, that jurists of reason would

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find it debatable whether the petition states a valid claim of the denial of a constitutional

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right and that jurists of reason would find it debatable whether the district court was

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correct in its procedural ruling.” Id. at 484.

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Here, Ground Four failed to state a constitutional claim, and was denied for this

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reason. Ground One was denied for both a procedural reason and a merits reason.

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Ground Two was denied on the merits. And, Ground Three was denied because it failed

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to state a constitutional challenge, was not exhausted as a federal claim in the state courts,

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and on the merits. The Court has considered all of these reasons for denial of Petitioner’s

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claims and finds that jurists of reason would not find this Court’s procedural rulings nor

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this Court’s assessment of the constitutional claims debatable or wrong. Accordingly, a

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certificate of appealability will be denied.

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Based on the foregoing,

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IT IS ORDERED that the Report and Recommendation (Doc. 28) is accepted and

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adopted. The Fourth Amended Habeas Petition (Doc. 14) is denied and dismissed with

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prejudice and the Clerk of the Court shall enter judgment accordingly.

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IT IS FURTHER ORDERED that Petitioner’s motion for certificate of
appealability and to proceed in forma pauperis on appeal (Doc. 31) is denied.

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IT IS FINALLY ORDERED that Petitioner’s motions for an interlocutory

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certificate of appealability and to file an interlocutory appeal in forma pauperis (Docs. 29

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and 30) are denied as moot.
Dated this 1st day of April, 2015.

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