Hrbenic #260775 v. Ryan et al

Filing 38

ORDER that the Report and Recommendation (Doc. 34 ) is accepted and adopted; the objections (Doc. 37 ) are overruled; the Petition is denied and dismissed with prejudice and the Clerk shall enter judgment. Pursuant to Rule 11 of the Rules Governi ng Section 2254 Cases, in the event Petitioner files an appeal, the Court denies issuance of a certificate of appealability because Petitioner has not made a substantial showing of the denial of a constitutional right. Signed by Senior Judge James A Teilborg on 1/24/17. (LSP)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Denijal Hrbenic, Petitioner, 10 11 ORDER v. 12 No. CV-14-02251-PHX-JAT Charles L Ryan, et al., 13 Respondents. 14 15 Pending before the Court is Petitioner’s Petition for Writ of Habeas Corpus. The 16 Magistrate Judge to whom this case was assigned issued a Report and Recommendation 17 (R&R) recommending that this Court deny the Petition. Doc. 34. Petitioner filed a 18 response to the R&R, which the Court will construe as an objection. Doc. 37. 19 I. Review of R&R 20 This Court “may accept, reject, or modify, in whole or in part, the findings or 21 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that 22 the district judge must review the magistrate judge’s findings and recommendations de 23 novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 24 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263 25 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes 26 that de novo review of factual and legal issues is required if objections are made, ‘but not 27 otherwise.’”); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 28 1027, 1032 (9th Cir. 2009) (the district court “must review de novo the portions of the 1 [Magistrate Judge=s] recommendations to which the parties object.”). District courts are 2 not required to conduct “any review at all . . . of any issue that is not the subject of an 3 objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28 4 U.S.C. § 636(b)(1) (“the court shall make a de novo determination of those portions of 5 the [report and recommendation] to which objection is made.”). 6 II. R&R 7 The Petition in this case has two claims: 1) that Petitioner’s counsel was 8 ineffective in the plea process; and 2) that the trial court did not have subject matter 9 jurisdiction over Petitioner’s case. The R&R concluded that neither of these claims 10 entitled Petitioner to relief. Doc. 34 at 1-13. While Petitioner made some general 11 objections to the R&R regarding his conviction as a whole (which the Court will discuss 12 below), Petitioner did not factually or legally object to the R&R’s findings, conclusions, 13 or recommendations as to either of these claims. Accordingly, the Court accepts and 14 adopts the R&R as to Petitioner’s two claims. See Doc. 34 at 6-11 (explaining the state 15 court found plea counsel was not effective and further explaining on the merits why plea 16 counsel was not ineffective); Doc. 34 at 11- 12 (explaining that the state court did not err 17 in its jurisdictional decision and alternatively nothing that errors of state law are not 18 cognizable on habeas). 19 III. Petitioner’s objections 20 Petitioner begins his objections with a complaint that Petitioner does not speak 21 English. Doc. 37 at 1-4. This Court has already addressed this argument (Doc. 33; Doc. 22 36) noting that Respondents have avowed that an interpreter is available to Petitioner. 23 Petitioner’s apparent refusal to use the interpreter is not a basis to object to the R&R. 24 Next Petitioner argues that the state court process was unfair because he does not 25 speak English and does not understand the American legal system. 26 However, by Petitioner’s own account, he had both an interpreter and a lawyer in the 27 state court proceeding. This assistance is sufficient to overcome Petitioner’s claimed lack 28 of understanding of the state court proceedings. -2- Doc. 37 at 5. 1 Petitioner next objects that the legal assistant who helped him file his habeas 2 Petition was incompetent. Doc. 37 at 6. Because there is no right to counsel on habeas, 3 this objection does not provide a basis for relief. See Chaney v. Lewis, 801 F.2d 1191, 4 1196 (9th Cir. 1986), cert. denied, 481 U.S. 1023 (1987); Kreiling v. Field, 431 F.2d 638, 5 640 (9th Cir. 1970) (per curiam); Eskridge v. Rhay, 345 F.2d 778, 782 (9th Cir. 1965), 6 cert. denied, 382 U.S. 996 (1966). 7 Finally, Petitioner claims that his post-conviction relief counsel was ineffective for 8 failing to raise the ineffectiveness of trial/plea counsel. Doc. 37 at 6-7. However, 9 Petitioner raised this argument pro se before the state courts (Doc. 17-2 at 21-54) and the 10 state court ruled on Petitioner’s claim (Doc. 17-4 at 122-123 (trial court); Doc. 17-6 at 11 47-51 (Arizona Court of Appeals)). Therefore, even if post-conviction relief counsel 12 should have raised this futile claim, Petitioner was not prejudiced because the Arizona 13 Courts considered the claim on the merits and denied relief. See Strickland v. 14 Washington, 466 U.S. 668, 687 (1984). 15 For the foregoing reasons, all of Petitioner’s objections are without merit and are 16 overruled. 17 IV. Conclusion 18 Based on the foregoing, 19 IT IS ORDERED that the Report and Recommendation (Doc. 34) is accepted and 20 adopted; the objections (Doc. 37) are overruled; the Petition is denied and dismissed with 21 prejudice and the Clerk of the Court shall enter judgment accordingly. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// -3- 1 IT IS FURTHER ORDERED that pursuant to Rule 11 of the Rules Governing 2 Section 2254 Cases, in the event Petitioner files an appeal, the Court denies issuance of a 3 certificate of appealability because Petitioner has not made a substantial showing of the 4 denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). 5 Dated this 24th day of January, 2017. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-

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