Dahnad v. Ryan et al

Filing 16

ORDER: Magistrate Judge Fine's Report and Recommendation 14 is ACCEPTED and ADOPTED as the Order of this Court. The Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 1 is DENIED and DISMISSED WITH PREJUDICE. Pursuant to Ru le 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 dismissal of the Petitioner is justified by a plain procedural bar and reasonable jurists would not find the ruling debatable. The Clerk of the Court shall terminate this action and enter judgment accordingly. Signed by Judge Diane J Humetewa on 5/18/2017. (REK)

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NOT FOR PUBLICATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Shidan Dahnad,
Petitioner,

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ORDER

v.

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No. CV-14-01294-PHX-DJH

Charles L Ryan, et al.,

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Respondents.

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Pending before the Court is Petitioner's Petition for Writ of Habeas Corpus

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pursuant to 28 U.S.C. § 2254 (Doc. 1) to which Respondents filed an Answer (Doc. 9).

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Following a thorough and comprehensive analysis, and what was obviously a painstaking

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review of a voluminous record, Magistrate Judge Fine recommended denial of and

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dismissal with prejudice of the Petition. (Doc. 14). Petitioner filed timely objections

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(Doc. 15). Respondents filed none.

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I.

R&R

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The R & R accurately identifies the seven claims which the Petition raises. (Doc.

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14 at 5:24-6:9. In their answer, Respondents took the position that “some portions” of

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Petitioner’s ineffective assistance of trial counsel (“IAC”) claim were procedurally

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barred. (Id. at 6:10). Respondents also took the position that Petitioner’s claims of (1)

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bias and partiality by the trial judge and (2) that the “cumulative effect of Grounds One

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through Six violated [his] right to due process[]” were procedurally barred. (Id. at 6: 8-

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9). As to the Petition’s remaining claims, Respondents argued that they were “without

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merit.” (Id. at 6:11) (citation omitted).

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Before addressing the Petition’s claims, Magistrate Judge Fine considered “two

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additional IAC claims that [Petitioner] openly admit[ted] [were] not . . . presented to the

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state courts.” (Doc. 14 at 6:15-16) (citation omitted). After carefully analyzing these two

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claims, the Magistrate Judge found that neither “present[ed] a substantial claim of [IAC]

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which would permit . . . [an] exception to the procedural bar[]” under Martinez v. Ryan,

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566 U.S. 1 (2012). (Id. at 10:25-27; see also id. at 8:25-27). As to the second new IAC

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claim, the Magistrate Judge further explained that it was without merit.

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Then, turning to Petitioner’s claims of judicial bias, the Magistrate Judge found

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that such claim was procedurally barred, and hence not properly subject to review in the

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habeas court. The Magistrate Judge further found that this particular claim was subject

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to an implied procedural bar and that Petitioner did “not demonstrate[] either cause for

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the default and actual prejudice to excuse the default, or a miscarriage of justice.” (Doc.

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14 at 11:16-17). Similarly, as to Petitioner’s claim regarding the cumulative effect of all

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claims raised, the Magistrate Judge found that Petitioner did not contend that such claim

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was exhausted and it was not. Such claim also was subject to an implied procedural bar,
for the same reasons as was his Petitioner’s judicial bias claim. (See id. at 11:24-28).
With respect to Petitioner’s exhausted claims, ten in all, including his various IAC
theories, the Magistrate Judge again carefully examined each and found them all to be
without merit for one reason or another. (Doc. 14 at 12-28). In light of the foregoing, the
Magistrate Judge found that Petitioner was not entitled to habeas corpus relief, and
recommended denial of his Petition and dismissal with prejudice. The Magistrate Judge
further recommended denial of a Certificate of Appealability because “dismissal of the
Petition is justified by a plain procedural bar and jurists of reason would not find the
ruling debatable.” (Id. at 29:1-2). The parties were advised by the Magistrate Judge that
they had “fourteen (14) days from the date of service of a copy of [the R&R] within
which to file specific written objections with the Court.” (Id. at 29:6-8) (citing 28 U.S.C.
§ 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure) (emphasis added).
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II.

Petitioner's Objections

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Petitioner timely filed his objections, broadly asserting that he is “entitled as a

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matter of right to de novo review” and “an evidentiary hearing” in this Court. (See, e.g.,

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Doc. 15 at 1:24-25; 2:21-22 (citation omitted).

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Magistrate Judge’s “factual findings and legal conclusions” which pertain to the

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following four claims. (See, e.g., id. at 2:18-19). The first claim arises from Petitioner’s

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waiver of his constitutional right to a jury trial. The second is Petitioner’s IAC claim

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predicated upon eight different theories.

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“conviction must be reversed because [he] was prohibited from presenting an affirmative

Petitioner uniformly objects to the

The third is Petitioner’s claim that his

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defense and character evidence.”

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“[i]nadmissible evidence was admitted at trial in violation of Rule 404(b) and (c).” (Id. at

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4:13-14).

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Petition be denied and dismissed with prejudice and that he be denied a Certificate of

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Appealability.

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III.

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(Id. at 4:4-6).

Petitioner’s fourth claim is that

Not surprisingly, Petitioner also objects to the recommendations that his

Standard of Review
This Court must “make a de novo determination of those portions of the report or

specified proposed findings or recommendations to which” a Petitioner objects. 28
U.S.C. § 636(b)(1)(C); see also Fed.R.Civ.P. 72(b)(3) (“The district judge must
determine de novo any part of the magistrate judge's disposition that has been properly
objected to.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (same).
Further, this Court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P.
72(b)(3). At the same time, however, the relevant provision of the Federal Magistrates
Act, 28 U.S.C. § 636(b)(1)(C), “does not on its face require any review at all. . .of any
issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1989)
(emphasis added); see also Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005)
(“Of course, de novo review of a R & R is only required when an objection is made to the
R & R, [Reyna–Tapia,] 328 F.3d [at] 1121. . . (“Neither the Constitution nor the [Federal
Magistrates Act] requires a district judge to review, de novo, findings and
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recommendations that the parties themselves accept as correct”)[.]”). Likewise, it is well-

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settled that “‘failure to object to a magistrate judge's factual findings waives the right to

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challenge those findings [,]’” Bastidas v. Chappell, 791 F.3d 1155, 1159 (9th Cir. 2015)

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(quoting Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (internal quotation

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marks omitted) (footnote omitted)), as Magistrate Judge Fine advised the parties herein.

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(Doc. 14 at 29:13-15) (citation omitted). Finally, “[a]lthough the Ninth Circuit has not yet

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ruled on the matter, other circuits and district courts within the Ninth Circuit have held

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when a petitioner raises a general objection to an R & R, rather than specific objections,

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the Court is relieved of any obligation to review it.” Martin v. Ryan, 2014 WL 5432133,

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at *2 (D. Ariz. 2014) (citing See, e.g., Warling v. Ryan, 2013 WL 5276367, at *2 (D.

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Ariz. 2013) (“[A] general objection ‘has the same effect as would a failure to object.’ ”));

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Gutierrez v. Flannican, 2006 WL 2816599 (D. Ariz. 2006) (citing Goney v. Clark, 749

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F.2d 5, 7 (3d Cir. 1984); Lockert v. Faulkner, 843 F.2d 1015, 1019 (7th Cir. 1988);

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Howard v. Sec. of Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991); United

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States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996)).

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IV.

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Discussion
Petitioner did filed timely objections, but he did not specifically object to any of

the information included in the R&R's background section. Thus, consistent with 28
U.S.C. § 636(b)(1)(C), and the case law construing it, the Court is not reviewing that
particular section at all. For a different reason, the Court finds that it has no independent
obligation to engage in a de novo review of those portions of the R & R to which
Petitioner did object. Petitioner has not triggered de novo review because, as is readily
apparent, his objections lack the requisite specificity. Petitioner’s general objection to the
unspecified factual findings and legal conclusions by the Magistrate Judge does not
provide this Court for any meaningful basis for review because Petitioner has not
articulated why he objects to these findings and conclusions. Further, where, as here,
Petitioner’s objections point to not a single flaw in the R & R’s analysis, they have the
same effect as would a complete failure to object. Indeed, if this Court were to undertake
de novo review of Petitioner's general objections, it would defeat the “obvious purpose”
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of the specific objection requirement, which “is judicial economy—to permit magistrate

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judges to hear and resolve matters not objectionable to the parties.” See Warling, 2013

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WL 5276367, at *2 (citing Thomas, 474 U.S. at 149; Reyna–Tapia, 328 F.3d at 1121).

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“Because de novo review of an entire R & R would defeat the efficiencies intended by

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Congress, a general objection “has the same effect as would a failure to object.” See id.

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(citing Howard, 932 F.2d at 509; Haley v. Stewart, 2006 WL 1980649, at *2 (D. Ariz.

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2006)). In light of the foregoing, the Court has no obligation to review Petitioner's

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general objections to the R & R. See id. at *2 (citing Thomas, 474 U.S. 149).

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Although the Court could simply accept the R & R based upon this case law, it did

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not. The Court reviewed the R & R, some of the many various exhibits referenced

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therein, and the applicable law. After so doing, the Court is left with the firm conviction

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that Magistrate Judge Fine’s recommendations are well taken and are supported by a

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correct application of the law throughout.

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V.

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Conclusion
Accordingly, IT IS ORDERED that Magistrate Judge Fine's Report and

Recommendation (Doc. 14) is ACCEPTED and ADOPTED as the Order of this Court.
IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 (Doc. 1) is DENIED and DISMISSED WITH
PREJUDICE.
IT IS FURTHER ORDERED that pursuant to Rule 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 dismissal of the Petitioner is justified by a plain
procedural bar and reasonable jurists would not find the ruling debatable.
IT IS FINALLY ORDERED that the Clerk of the Court shall terminate this
action and enter judgment accordingly.
Dated this 18th day of May, 2017.

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Honorable Diane J. Humetewa
United States District Judge

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