Soto #151304 v. Ryan et al

Filing 21

ORDER ADOPTING REPORT AND RECOMMENDATION 15 in whole. IT IS FURTHER ORDERED denying and dismissing the Petition (Doc. 1 ). IT IS FURTHER ORDERED denying a certificate of appealability and leave to proceed in forma pauperis on appeal, upon the Court's finding that Petitioner has not made a substantial showing of the denial of a constitutional right in his claim for relief. (See document for further details). Signed by Judge John J Tuchi on 5/2/16. (LAD)

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NOT FOR PUBLICATION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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George Soto,
Petitioner,

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No. CV-14-02562-PHX-JJT
ORDER

v.
Charles L. Ryan, et al.,
Respondents.

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At issue is the Report and Recommendation (R&R) (Doc. 15) prepared in this

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matter by United States Magistrate Judge Eileen Willett, recommending the Court deny

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and dismiss the Petition for habeas review on the merits. Petitioner timely filed an

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Objection (Doc. 20) and Respondent has filed no response.

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The Court will adopt in whole Judge Willett’s R&R, as it correctly and reasonably

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applies the law under AEDPA, 28 U.S.C. §§ 2244 and 2254 and Strickland v.

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Washington, 466 U.S. 668 (1984), to Petitioner’s ineffective assistance of counsel claim.

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Neither the state court’s ruling that Petitioner’s trial counsel did not perform in a

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constitutionally deficient matter, nor its finding that Petitioner failed to establish

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prejudice, is contrary to or an unreasonable application of Strickland.

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Petitioner’s Objection to the R&R fails to persuade otherwise. He simply restates

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in conclusory fashion that the state court violated the above standard, and to the extent

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that the Objection can be construed to argue facts previously alleged, Judge Willett’s

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R&R addresses head-on those facts and their inadequacy to show inadequacy under the

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Strickland standard.

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Petitioner also attempts to raise additional grounds for habeas relief in the

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Objection, arguing alternatively that his confinement places him at high risk of abuse by

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other prisoners, which constitutes cruel and unusual punishment under the Eighth

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Amendment, and that his incarceration singles him out for different treatment than other

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inmates who do not have Petitioner’s claimed “mental or physical handicaps,” which

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decision Petitioner deems a 14th Amendment violation. But the Petition in this matter

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raised only a claim of ineffective assistance of counsel in violation of the Sixth

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Amendment. Petitioner is not free to add grounds to his Petition at this late date, where

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Respondents had no opportunity to address them. If Petitioner wishes to raise such

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claims, he may only do so under a separate action pursuant to 28 U.S.C. § 1983 or other

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appropriate law.

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For the reasons set forth above and in detail in the R&R,

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IT IS ORDERED adopting the Report and Recommendation (Doc. 15) in whole.

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IT IS FURTHER ORDERED denying and dismissing the Petition (Doc. 1).

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IT IS FURTHER ORDERED denying a certificate of appealability and leave to

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proceed in forma pauperis on appeal, upon the Court’s finding that Petitioner has not

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made a substantial showing of the denial of a constitutional right in his claim for relief..

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Dated this 2nd day of May, 2016.

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Honorable John J. Tuchi
United States District Judge

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