Al-Maleki v. Ryan

Filing 60

ORDER ADOPTING REPORT AND RECOMMENDATION - The Magistrate Judge's Report and Recommendation (Doc. 55 ) is accepted and adopted by the Court. The Petitioner's Objections (Doc. 58 ) are overruled. The Petition for Writ of Habeas Corpus (Doc. 1 ) is denied and this action is dismissed with prejudice. A Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied because the dismissal of the Petition is justified by a plain procedural bar and reasonable jurists would not find the ruling debatable. The Clerk of Court shall terminate this action. (See document for further details). Signed by Judge Steven P Logan on 8/25/17. (SLQ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Faleh Hassan Al-Maleki,

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Petitioner,
v.

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Charles L. Ryan, et al,
Respondents.

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No. CV-14-00713-PHX-SPL
ORDER

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The Court has before it Petitioner’s Petition for Writ of Habeas Corpus pursuant to

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28 U.S.C. § 2254 (Doc. 1), Respondents’ Limited Answer (Doc. 49), and Petitioner’s

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Traverse (Doc. 54). We also have before us the Report and Recommendation (R&R) of

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United States Magistrate Judge Bridget S. Bade (Doc. 55), recommending denial of the

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Petition, Petitioner’s timely Objections (Doc. 58), and the Respondents’ Response to the

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Petitioner’s Objections to the Report and Recommendation (Doc. 59).

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Petitioner was indicted, December 17, 2009, on five counts: first degree murder

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(Count 1); attempted first-degree murder (Count 2); aggravated assault (Count 3); and

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leaving the scene of a serious injury accident (Counts 4 and 5) (Doc. 10, Ex. B).1 Finding

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several aggravating factors, the jury convicted the Petitioner of second degree murder

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which is the lesser included offense of Count 1 (Doc. 10, Ex. E). The Petitioner was also

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convicted of Counts 3-5 and acquitted on Count 2 (Id).

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The Respondents filed (Doc. 10), before the case was stayed. The Limited Answer
is (Doc. 49).

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The Petitioner was sentenced to a presumptive 18 year prison term for Count 1, a

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15 year prison term for Count 3, and two presumptive, concurrent, 3.5 year prison terms

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on Counts 4 and 5 (Doc. 10, Ex. G). The trial court ordered consecutive sentencing on

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Counts 1 and 3 and consecutively to the concurrent terms of prison for Counts 4 and 5

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(Id).

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The Petitioner raises 4 grounds for relief in his Petition for Writ of Habeas Corpus.

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In Ground 1, the Petitioner argues that his trial counsel was ineffective because counsel

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did not consult an independent expert; Ground 2, the Petitioner argues the trial counsel

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was ineffective because counsel did not properly and timely notice the defense of

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superseding cause pursuant to Ariz. R. Crim. P. 15.2; Ground 3, the Petitioner argues trial

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counsel was ineffective because counsel failed to request the appropriate jury instruction

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relative to superseding cause; and Ground 4, the Petitioner argues the trial counsel was

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ineffective because counsel failed to adequately cross examine the medical examiner with

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facts contained in the discovery (Doc. 1 at 19-24). Respondents argue that the claims of

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the Petitioner are unexhausted, procedurally defaulted and that the Petition should be

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denied (Doc. 49).

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Judge Bade concluded the Petitioner’s claims are procedurally barred from federal

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habeas corpus review (Doc. 55). Additionally, the magistrate judge further concluded

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that the Petitioner has not established a basis to overcome that bar (Id).

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In his Objections to the Report and Recommendation, Petitioner articulated his

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displeasure with Judge Bade’s findings and conclusions (Doc. 58 at 1-5). The Petitioner

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also repeats the same arguments that were laid out in the Petition (Doc. 1 at 19-24) and

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Traverse (Doc. 54 at 1-6).

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A district judge “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). When a party files

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a timely objection to an R&R, the district judge reviews de novo those portions of the

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

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requires specific written objections to the findings and recommendations in the R&R. See
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United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); 28 U.S.C. §

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636(b)(1). It follows that the Court need not conduct any review of portions to which no

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specific objection has been made. See Reyna-Tapia, 328 F.3d at 1121; see also Thomas v.

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Arn, 474 U.S. 140, 149 (1985) (discussing the inherent purpose of limited review is

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judicial economy). Further, a party is not entitled as of right to de novo review of

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evidence or arguments which are raised for the first time in an objection to the R&R, and

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the Court’s decision to consider them is discretionary. United States v. Howell, 231 F.3d

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615, 621-622 (9th Cir. 2000).

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The Court finds that although the Petitioner filed objections (Doc. 54), he failed to

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provide specific written objections to the findings and recommendations in the R&R.

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Nonetheless, the Court has undertaken an extensive review of the sufficiently developed

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record and the objections to the findings and recommendations in the very detailed R&R,

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without the need for an evidentiary hearing.

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After conducting a de novo review of the issues and objections, the Court reaches

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the same conclusions reached by Judge Bade. Specifically, the Court finds the claims of

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the Petitioner are procedurally barred from federal habeas corpus review. Additionally,

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the Petitioner has failed to establish a basis to overcome that bar.

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Having carefully reviewed the record, the Petitioner has not shown that he is

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entitled to habeas relief. Finding none of Petitioner’s objections have merit, the R&R

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will be adopted in full. Accordingly,

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IT IS ORDERED:

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1.

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That the Magistrate Judge’s Report and Recommendation (Doc. 55) is

accepted and adopted by the Court;

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2.

That the Petitioner’s Objections (Doc. 58) are overruled;

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3.

That the Petition for Writ of Habeas Corpus (Doc. 1) is denied and this

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action is dismissed with prejudice;
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That a Certificate of Appealability and leave to proceed in forma pauperis

on appeal are denied because the dismissal of the Petition is justified by a plain
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procedural bar and reasonable jurists would not find the ruling debatable; and

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That the Clerk of Court shall terminate this action.

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Dated this 25th day of August, 2017.

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Honorable Steven P. Logan
United States District Judge

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