Silva-Acosta v. Ryan et al

Filing 15

ORDER ACCEPTING REPORT AND RECOMMENDATION 13 - IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment DENYING Petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. §2254, (Doc. 1 ), with prejudice. The Clerk shall terminate this action. IT IS FURTHER ORDERED that, having considered the issuance of a Certificate of Appealability from the order denying Petitioner's Petition for Writ of Habeas Corpus, a Certificate of Appealability and leave to proceed in forma pauperis on appeal are DENIED because dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the ruling debatable. Signed by Judge Douglas L Rayes on 06/04/15. (ATD)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jose Jaime Silva-Acosta, Petitioner, 10 11 ORDER v. 12 No. CV-14-01347-PHX-DLR Charles L. Ryan, et al., 13 Respondents. 14 15 Pending before the Court is Petitioner’s Petition for Writ of Habeas Corpus, (Doc. 16 1), United States Magistrate Judge Michelle H. Burns’ Report and Recommendation 17 (“R&R”), (Doc. 13), and Petitioner’s objections to the R&R, (Doc. 14). 18 The Court has considered Petitioner’s objections and reviewed the R&R de novo. 19 The R&R recommends that the Court deny the petition and that it be dismissed with 20 prejudice as to Grounds Three, Four, Five and Six because they are procedurally barred. 21 Nor did Petitioner establish grounds to excuse the procedural default by a showing of 22 cause and prejudice or argue a fundamental miscarriage of justice. 23 inadequate assistance of counsel at initial-review collateral proceedings—which may 24 establish cause for procedural default of a claim of ineffective assistance of counsel— 25 does not apply to Grounds Three, Four and Six, which do not allege ineffective assistance 26 of counsel, and the ineffective assistance of counsel claim alleged in Ground Five fails 27 both prongs of the test set forth in Strickland v. Washington, 466 U.S. 668 (1984). 28 Regarding Grounds One and Two of the petition, both of which allege ineffective Additionally, 1 assistance of counsel, the R&R recommends dismissal because Petitioner failed to 2 demonstrate deficient performance or resulting prejudice, and the state courts’ rejection 3 of these claims was neither contrary to, nor an unreasonable application of, Strickland. 4 The Court has considered Petitioner’s objections as if they had been filed before 5 the R&R had been prepared. Petitioner’s objections are conclusory and not supported by 6 facts. For example, Petitioner argues that “to the best of his knowledge he has adequately 7 exhausted all his claims with the state courts and not omitted any procedural steps,” and 8 “[t]he trial court committed basic and fundamentally error where it improperly attempted 9 to coerce the Petitioner, and thus violates the 14th Amendment for Equal Protection and 10 Due Process where fear was used as a potential fulcrum against him.” (Doc. 14 at 3, 5.) 11 Having considered Petitioner’s objections, the Court agrees with the Magistrate 12 Judge’s determinations, accepts the recommended decision within the meaning of Federal 13 Rule of Civil Procedure 72(b), and overrules Petitioner’s objections. See 28 U.S.C. 14 §636(b)(1) (stating that the district court “may accept, reject, or modify, in whole or in 15 part, the findings or recommendations made by the magistrate”). 16 IT IS THEREFORE ORDERED that the R&R, (Doc. 13), is ACCEPTED. 17 IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment 18 DENYING Petitioner’s Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. 19 §2254, (Doc.1), with prejudice. The Clerk shall terminate this action. 20 21 22 23 24 25 26 27 28 -2- 1 IT IS FURTHER ORDERED that, having considered the issuance of a 2 Certificate of Appealability from the order denying Petitioner’s Petition for Writ of 3 Habeas Corpus, a Certificate of Appealability and leave to proceed in forma pauperis on 4 appeal are DENIED because dismissal of the Petition is justified by a plain procedural 5 bar and jurists of reason would not find the ruling debatable. 6 Dated this 4th day of June, 2015. 7 8 9 10 11 Douglas L. Rayes United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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