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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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Paul Garcia, No. CV-15-0127-PHX-DJH Petitioner, 10 11 v. 12 ORDER Charles L. Ryan, et al., 13 Respondents. 14 15 This matter is before the Court on Petitioner’s Petition for Writ of Habeas Corpus 16 (the "Petition") pursuant to 28 U.S.C. § 2254 (Doc. 1) filed on January 26, 2015, and the 17 Report and Recommendation (“R&R”) (Doc. 11) issued by United States Magistrate 18 Judge David K. Duncan on October 1, 2015. Following a jury trial in May 2012, 19 Petitioner was convicted of one count of disorderly conduct, a “dangerous” offense under 20 Arizona law; two counts of aggravated assault, also dangerous offenses; one count of 21 theft of means of transportation; and one count of unlawful flight from a law enforcement 22 vehicle. (Doc. 11 at 1). Petitioner was sentenced in July 2012 to a combination of 23 concurrent and consecutive sentences totaling 25.75 years in prison. (Id. at 2). 24 Petitioner raised several claims for relief in the Petition, alleging that that he 25 received ineffective assistance of trial counsel because counsel (1) failed to inform him 26 that a jury could decide aggravating factors, (2) failed to present mitigating evidence at 27 his sentencing, and (3) failed to object to his excessive sentence. Petitioner further 28 alleges that his right to due process was violated when the prosecutor failed to notify the 1 trial court that a DNA test was never performed on a key piece of evidences. (Doc. 11 at 2 3). 3 Petitioner failed to exhaust his state court remedies for the claims asserted in this action, 4 and that he is now barred from doing so. (Id. at 3-5). Accordingly, Judge Duncan 5 recommends the Petition be denied and dismissed with prejudice. (Id. at 5). After consideration and analysis of the issues, Judge Duncan concluded that 6 Judge Duncan advised the parties that they had fourteen days to file objections and 7 that the failure to file timely objections "may result in the acceptance of the Report and 8 Recommendation by the district court without further review." (Doc. 11 at 5) (citing 9 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc)). The 10 parties have not filed objections and the time to do so has expired. Absent any 11 objections, the Court is not required to review the findings and recommendations in the 12 R&R. See Thomas v. Arn, 474 U.S. 140, 149 (1989) (The relevant provision of the 13 Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C), “does not on its face require any 14 review at all . . . of any issue that is not the subject of an objection.”); Reyna-Tapia, 328 15 F.3d at 1121 (same); Fed.R.Civ.P. 72(b)(3) (“The district judge must determine de novo 16 any part of the magistrate judge’s disposition that has been properly objected to.”). 17 Nonetheless, the Court has reviewed the R&R and agrees with its findings and 18 recommendations. The Court will, therefore, accept the R&R and deny the Petition. See 19 28 U.S.C. § 636(b)(1)(C) (“A judge of the court may accept, reject, or modify, in whole 20 or in part, the findings or recommendations made by the magistrate judge.”); 21 Fed.R.Civ.P. 72(b)(3) (same). 22 Accordingly, 23 IT IS ORDERED that Magistrate Judge Duncan's R&R (Doc. 11) is accepted 24 25 26 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. 27 IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing 28 Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis -2- 1 on appeal are denied because dismissal of the Petition is justified by a plain procedural 2 bar and jurists of reason would not find the procedural ruling debatable. 3 4 5 IT IS FURTHER ORDERED that the Clerk of Court shall terminate this action and enter judgment accordingly. Dated this 22nd day of October, 2015. 6 7 8 9 Honorable Diane J. Humetewa United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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