Pina-Aguirre v. Ryan et al

Filing 21

ORDER ADOPTING REPORT AND RECOMMENDATION, accepting and adopting, as an Order of this Court, Magistrate Judge Aspey's 20 Report and Recommendation; denying and dismissing with prejudice the Petition for Writ of Habeas Corpus 1 ; pursuant to R ule 11(a) of the Rules Governing Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied because Petitioner has not made a substantial showing of the denial of a constitutional right; the Clerk shall terminate this action and enter judgment accordingly. Signed by Judge Diane J Humetewa on 1/6/15. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Genaro Evenicio Pina-Aguirre,

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Petitioner,

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ORDER

v.

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No. CV-14-00860-PHX-DJH

Charles L. Ryan, et al.,

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Respondents.

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This matter is before the Court on Petitioner’s Petition for Writ of Habeas Corpus

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pursuant to 28 U.S.C. § 2254 (Doc. 1) and the Report and Recommendation (“R&R”)

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issued by United States Magistrate Judge Mark E. Aspey (Doc. 20).

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asserts three grounds for relief. First, Petitioner contends that state trial court should

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have, sua sponte, conducted a voluntariness hearing prior to admitting as evidence

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Petitioner's post-arrest statements to the police. Second, the Petitioner claims that he was

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denied effective assistance of counsel because his counsel did not:

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voluntariness hearing; (2) challenge the victim's identification of him; and (3) did not

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impeach a detective with an interview transcript. Third, the Petitioner maintains that by

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not retrieving fingerprints and DNA evidence, "the police conducted a 'faulty

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investigation[.]'" R&R (Doc. 20) at 15:6 (emphasis omitted).

The Petitioner

(1) request a

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After carefully considering each of these three claims, see id. at 9-16, Magistrate

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Judge Aspey soundly concluded that "[t]he state court's last reasoned decision denying

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[Petitioner's] claims was not clearly contrary to nor an unreasonable application of federal

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law." (Id. at 16:16-17).

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In recommending denial of the Petition and dismissal with prejudice, Magistrate

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Judge Aspey explicitly advised the parties that they had "fourteen (14) days from the date

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of service of a copy of" that R&R "within which to file specific objections with the

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Court." R&R (Doc. 20) at 16:24-25. Further, Magistrate Judge Aspey explicitly advised

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that "[f]ailure to file timely objections to any factual or legal determinations of the

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Magistrate Judge will be considered a waiver of a party's right to do novo appellate

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consideration of those issues." (Id. at 17:2-4) (citing United States v. Reyna-Tapia, 328

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F.3d 1114, 1121 (9th Cir. 2003) (en banc)). The Magistrate Judge was equally explicit

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that "[f]ailure to timely file objections to any factual or legal determinations of the

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Magistrate Judge will constitute a waiver of a party’s right to appellate review of the

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findings of fact and conclusions of law in an order or judgment entered pursuant to the

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recommendation of the Magistrate Judge." (Id. at 17:5-8).

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The parties have not filed objections and the time to do so has expired. Absent

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any objections, the Court is not required to review the findings and recommendations in

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the R&R. See Thomas v. Arn, 474 U.S. 140, 149 (1989) (The relevant provision of the

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Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C), “does not on its face require any

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review at all . . . of any issue that is not the subject of an objection.”); Reyna-Tapia, 328

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F.3d at 1121 (same); Fed.R.Civ.P. 72(b)(3) (“The district judge must determine de novo

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any part of the magistrate judge’s disposition that has been properly objected to.”).

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Nonetheless, the Court has reviewed the R&R and agrees with its findings and

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recommendations. The Court will, therefore, accept the R&R, deny the Petition and

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dismiss this matter with prejudice. See 28 U.S.C. § 636(b)(1)(C) (“A judge of the court

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

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by the magistrate judge.”); Fed.R.Civ.P. 72(b)(3) (same).

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Accordingly,

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IT IS ORDERED ACCEPTING AND ADOPTING as an Order of this Court

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Magistrate Judge Aspey's R&R (Doc. 20);

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IT IS FURTHER ORDERED DENYING AND DISMISSING WITH

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PREJUDICE the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc.

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1);

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IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing

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Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis

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on appeal are DENIED because Petitioner has not made a substantial showing of the

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denial of a constitutional right; and

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IT IS FINALLY ORDERED that the Clerk of Court shall terminate this action
and enter judgment accordingly.
Dated this 6th day of January, 2015.

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Honorable Diane J. Humetewa
United States District Judge

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