Garcia v. Ryan et al

Filing 12

ORDER ADOPTING 11 Magistrate Judge Duncan's Report and Recommendation. The Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1 ) is denied and dismissed with prejudice. Pursuant to Rule 11(a) of the Rules Governing S ection 2254 Cases, 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 procedural ruling debatable. The Clerk of Court shall terminate this action and enter judgment accordingly. Signed by Judge Diane J Humetewa on 10/22/15. (EJA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Paul Garcia,

No. CV-15-0127-PHX-DJH
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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This matter is before the Court on Petitioner’s Petition for Writ of Habeas Corpus

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(the "Petition") pursuant to 28 U.S.C. § 2254 (Doc. 1) filed on January 26, 2015, and the

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Report and Recommendation (“R&R”) (Doc. 11) issued by United States Magistrate

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Judge David K. Duncan on October 1, 2015. Following a jury trial in May 2012,

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Petitioner was convicted of one count of disorderly conduct, a “dangerous” offense under

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Arizona law; two counts of aggravated assault, also dangerous offenses; one count of

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theft of means of transportation; and one count of unlawful flight from a law enforcement

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vehicle. (Doc. 11 at 1). Petitioner was sentenced in July 2012 to a combination of

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concurrent and consecutive sentences totaling 25.75 years in prison. (Id. at 2).

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Petitioner raised several claims for relief in the Petition, alleging that that he

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received ineffective assistance of trial counsel because counsel (1) failed to inform him

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that a jury could decide aggravating factors, (2) failed to present mitigating evidence at

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his sentencing, and (3) failed to object to his excessive sentence. Petitioner further

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alleges that his right to due process was violated when the prosecutor failed to notify the

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trial court that a DNA test was never performed on a key piece of evidences. (Doc. 11 at

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3).

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Petitioner failed to exhaust his state court remedies for the claims asserted in this action,

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and that he is now barred from doing so. (Id. at 3-5). Accordingly, Judge Duncan

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recommends the Petition be denied and dismissed with prejudice. (Id. at 5).

After consideration and analysis of the issues, Judge Duncan concluded that

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Judge Duncan advised the parties that they had fourteen days to file objections and

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that the failure to file timely objections "may result in the acceptance of the Report and

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Recommendation by the district court without further review." (Doc. 11 at 5) (citing

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United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc)). The

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parties have not filed objections and the time to do so has expired.

Absent any

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objections, the Court is not required to review the findings and recommendations in the

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R&R. See Thomas v. Arn, 474 U.S. 140, 149 (1989) (The relevant provision of the

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Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C), “does not on its face require any

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review at all . . . of any issue that is not the subject of an objection.”); Reyna-Tapia, 328

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F.3d at 1121 (same); Fed.R.Civ.P. 72(b)(3) (“The district judge must determine de novo

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any part of the magistrate judge’s disposition that has been properly objected to.”).

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Nonetheless, the Court has reviewed the R&R and agrees with its findings and

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recommendations. The Court will, therefore, accept the R&R and deny the Petition. See

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28 U.S.C. § 636(b)(1)(C) (“A judge of the court may accept, reject, or modify, in whole

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

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Fed.R.Civ.P. 72(b)(3) (same).

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Accordingly,

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IT IS ORDERED that Magistrate Judge Duncan's R&R (Doc. 11) is accepted

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and adopted as the order of this Court.
IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 (Doc. 1) is denied and dismissed with prejudice.

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IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing

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Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis

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on 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 procedural ruling debatable.

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IT IS FURTHER ORDERED that the Clerk of Court shall terminate this action
and enter judgment accordingly.
Dated this 22nd day of October, 2015.

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Honorable Diane J. Humetewa
United States District Judge

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