Soto #151304 v. Ryan et al
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)
NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Charles L. Ryan, et al.,
At issue is the Report and Recommendation (R&R) (Doc. 15) prepared in this
matter by United States Magistrate Judge Eileen Willett, recommending the Court deny
and dismiss the Petition for habeas review on the merits. Petitioner timely filed an
Objection (Doc. 20) and Respondent has filed no response.
The Court will adopt in whole Judge Willett’s R&R, as it correctly and reasonably
applies the law under AEDPA, 28 U.S.C. §§ 2244 and 2254 and Strickland v.
Washington, 466 U.S. 668 (1984), to Petitioner’s ineffective assistance of counsel claim.
Neither the state court’s ruling that Petitioner’s trial counsel did not perform in a
constitutionally deficient matter, nor its finding that Petitioner failed to establish
prejudice, is contrary to or an unreasonable application of Strickland.
Petitioner’s Objection to the R&R fails to persuade otherwise. He simply restates
in conclusory fashion that the state court violated the above standard, and to the extent
that the Objection can be construed to argue facts previously alleged, Judge Willett’s
R&R addresses head-on those facts and their inadequacy to show inadequacy under the
Petitioner also attempts to raise additional grounds for habeas relief in the
Objection, arguing alternatively that his confinement places him at high risk of abuse by
other prisoners, which constitutes cruel and unusual punishment under the Eighth
Amendment, and that his incarceration singles him out for different treatment than other
inmates who do not have Petitioner’s claimed “mental or physical handicaps,” which
decision Petitioner deems a 14th Amendment violation. But the Petition in this matter
raised only a claim of ineffective assistance of counsel in violation of the Sixth
Amendment. Petitioner is not free to add grounds to his Petition at this late date, where
Respondents had no opportunity to address them. If Petitioner wishes to raise such
claims, he may only do so under a separate action pursuant to 28 U.S.C. § 1983 or other
For the reasons set forth above and in detail in the R&R,
IT IS ORDERED adopting the Report and Recommendation (Doc. 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..
Dated this 2nd day of May, 2016.
Honorable John J. Tuchi
United States District Judge
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