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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jose Jaime Silva-Acosta,
Petitioner,

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ORDER

v.

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No. CV-14-01347-PHX-DLR

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, (Doc.

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1), United States Magistrate Judge Michelle H. Burns’ Report and Recommendation

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(“R&R”), (Doc. 13), and Petitioner’s objections to the R&R, (Doc. 14).

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The Court has considered Petitioner’s objections and reviewed the R&R de novo.

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The R&R recommends that the Court deny the petition and that it be dismissed with

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prejudice as to Grounds Three, Four, Five and Six because they are procedurally barred.

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Nor did Petitioner establish grounds to excuse the procedural default by a showing of

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cause and prejudice or argue a fundamental miscarriage of justice.

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inadequate assistance of counsel at initial-review collateral proceedings—which may

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establish cause for procedural default of a claim of ineffective assistance of counsel—

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does not apply to Grounds Three, Four and Six, which do not allege ineffective assistance

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of counsel, and the ineffective assistance of counsel claim alleged in Ground Five fails

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both prongs of the test set forth in Strickland v. Washington, 466 U.S. 668 (1984).

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Regarding Grounds One and Two of the petition, both of which allege ineffective

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assistance of counsel, the R&R recommends dismissal because Petitioner failed to

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demonstrate deficient performance or resulting prejudice, and the state courts’ rejection

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of these claims was neither contrary to, nor an unreasonable application of, Strickland.

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The Court has considered Petitioner’s objections as if they had been filed before

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the R&R had been prepared. Petitioner’s objections are conclusory and not supported by

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facts. For example, Petitioner argues that “to the best of his knowledge he has adequately

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exhausted all his claims with the state courts and not omitted any procedural steps,” and

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“[t]he trial court committed basic and fundamentally error where it improperly attempted

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to coerce the Petitioner, and thus violates the 14th Amendment for Equal Protection and

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Due Process where fear was used as a potential fulcrum against him.” (Doc. 14 at 3, 5.)

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Having considered Petitioner’s objections, the Court agrees with the Magistrate

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Judge’s determinations, accepts the recommended decision within the meaning of Federal

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Rule of Civil Procedure 72(b), and overrules Petitioner’s objections. See 28 U.S.C.

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§636(b)(1) (stating that the district court “may accept, reject, or modify, in whole or in

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part, the findings or recommendations made by the magistrate”).

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IT IS THEREFORE ORDERED that the R&R, (Doc. 13), is ACCEPTED.

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IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment

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DENYING Petitioner’s Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C.

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§2254, (Doc.1), with prejudice. The Clerk shall terminate this action.

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IT IS FURTHER ORDERED that, having considered the issuance of a

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Certificate of Appealability from the order denying Petitioner’s Petition for Writ of

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Habeas Corpus, a Certificate of Appealability and leave to proceed in forma pauperis on

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appeal are DENIED because dismissal of the Petition is justified by a plain procedural

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bar and jurists of reason would not find the ruling debatable.

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Dated this 4th day of June, 2015.

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Douglas L. Rayes
United States District Judge

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