Markland v. Ryan et al

Filing 29

ORDER ADOPTING REPORT AND RECOMMENDATION (Doc. 17 ) and dismissing with prejudice Petitioner's Petition for Writ of Habeas Corpus (Doc. 1 .) The Clerk of Court shall enter judgment accordingly. IT IS FURTHER ORDERED denying a Certificate of Appealability and leave to proceed in forma pauperis on appeal because (1) Petitioner has not made a substantial showing of the denial of a constitutional right and (2) the dismissal is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable. Signed by Senior Judge Stephen M McNamee on 03/19/2018. (KAS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Harold Eugene Markland,

No. CV-14-02563-PHX-SMM

Petitioner,

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v.

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ORDER

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.) The matter was referred to Magistrate Judge Deborah M. Fine for a Report and

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Recommendation, who filed a Report and Recommendation with this Court

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recommending that the petition be denied and dismissed with prejudice. (Doc. 17.)

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Petitioner then filed a reply to the Report and Recommendation (entitled “Reply to the

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Report and Recommendation ‘Evidentiary Hearing Requested w/ Newly Discovered

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Evidence Used During Trial as Exhibit 30 Withheld from Jury’”), Respondents

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responded, and Petitioner submitted another reply (“second reply”). (Docs. 25-27.) For

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the reasons that follow, the Court will adopt the Report and Recommendation and deny

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Petitioner’s Petition for Writ of Habeas Corpus.

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STANDARD OF REVIEW

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When reviewing a Magistrate Judge’s Report and Recommendation, this Court

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“shall make a de novo determination of those portions of the report…to which objection

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is made,” and “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); see also

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Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991) (citing Britt v. Simi Valley

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Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983)).

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Rule 72(b)(3) requires a district judge to review de novo those portions of the

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Report and Recommendation that have been “properly objected to.” Fed. R. Civ. P.

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72(b)(3) (emphasis added). A proper objection requires “specific written objections to the

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proposed findings and recommendations.” Fed. R. Civ. P. 72(b)(2) (emphasis added). An

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ineffective general objection has the same effect as a failure to object. Warling v. Ryan,

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No. CV-12-1396, 2013 WL 5276367, at *2 (D. Ariz. Sept. 19, 2013) (further citations

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omitted). Failure to object to a Magistrate Judge’s recommendation relieves the Court of

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conducting de novo review of the Magistrate Judge’s factual findings and waives all

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objections to those findings on appeal. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir.

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1998).
DISCUSSION1

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The Magistrate Judge filed a thorough thirty page Report and Recommendation

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(“R&R”) recommending denial of habeas relief for Petitioner’s Petition for Writ of

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Habeas Corpus. (Doc. 17.) Petitioner’s reply appears to contain four objections to the

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R&R. (Doc. 25.)

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Respondents argue that Petitioner’s reply is improper because it does not point to

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any specific flaws in the Magistrate Judge’s analysis in the R&R, in violation of Fed. R.

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Civ. P. 72(b)(2). (Doc. 26 at 2.) Respondents further argue that this failure has the same

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effect as a failure to object, i.e., that the Court is not required to conduct a review of the

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R&R before adopting it. (Id., citing cases.) Petitioner does not respond to this argument

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in his second reply. (Doc. 27.)

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The Court concurs with Respondents. Petitioner’s purported objections are

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ineffective general objections. Therefore, the Court is under no obligation to review

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The factual and procedural history of this case is set forth in the Magistrate
Judge’s Report and Recommendation. (Doc. 17.)
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them. Warling, 2013 WL 5276367, at *2 (citing Thomas v. Arn, 474 U.S. 140, 149

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(1985)). Notwithstanding this, the Court addresses Petitioner’s argument that the

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Magistrate Judge’s finding on Count One shows ineffective assistance of counsel and

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therefore Count One “should be investigated and given to petitioner.” (Doc. 25 at 3.) The

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Court will not address this objection on the merits because Petitioner did not exhaust this

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ineffective assistance of counsel claim, as he must, in his state post-conviction relief

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petition. Therefore, Petitioner’s argument is procedurally barred.

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Having reviewed the Report and Recommendation of the Magistrate Judge, and no

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Objections having been made by any party thereto, the Court hereby incorporates and

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adopts the Magistrate Judge’s Report and Recommendation.

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The standard for this Court to issue a Certificate of Appealability (“COA”) is

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whether the applicant has “made a substantial showing of the denial of a constitutional

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right.” 28 U.S.C. § 2253(c)(2); Rule 11(a) of the Rules Governing Section 2254 Cases.

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“Where a district court has rejected the constitutional claims on the merits, the showing

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required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that

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reasonable jurists would find the district court’s assessment of the constitutional claims

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debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “When the district

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court denies a habeas petition on procedural grounds without reaching the prisoner’s

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underlying constitutional claim, a COA should issue when the prisoner shows, at least,

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that jurists of reason would find it debatable whether the petition states a valid claim of

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the denial of a constitutional right and that jurists of reason would find it debatable

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whether the district court was correct in its procedural ruling.” Id.

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CONCLUSION

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Accordingly, on the basis of the foregoing,

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IT IS HEREBY ORDERED adopting the Report and Recommendation of the

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Magistrate Judge. (Doc. 17.)
IT IS FURTHER ORDERED dismissing with prejudice Petitioner’s Petition for
Writ of Habeas Corpus. (Doc. 1.) The Clerk of Court shall enter judgment accordingly.

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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 because (1) Petitioner has not made a substantial

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showing of the denial of a constitutional right and (2) the dismissal is justified by a plain

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

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Dated this 19th day of March, 2018.

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Honorable Stephen M. McNamee
Senior United States District Judge

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