Lopez-Zamarripa v. Ryan et al

Filing 22

ORDER: Magistrate Judge Bade's Report and Recommendation (Doc. 20 ) is ACCEPTED and ADOPTED as the Order of this Court. 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 Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied because dismissal of many of Petitioner's claims is justified by a plain procedural b ar and reasonable jurists would not find the ruling debatable and because Petitioner has not made a substantial showing of the denial of a constitutional right. The Clerk of the Court shall terminate this action and enter judgment accordingly. Signed by Judge Diane J Humetewa on 10/19/2016. (REK)

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NOT FOR PUBLICATION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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Alejandro Lopez-Zamarripa,
Petitioner,

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No. CV-15-00128-PHX-DJH
ORDER

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v.

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Charles L Ryan and Attorney General of
the State of Arizona,

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Respondents.

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Pending before the Court is pro se Petitioner’s Petition for Writ of Habeas Corpus

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pursuant to 28 U.S.C. § 2254 (Doc. 1) to which Respondents filed an Answer (Doc. 16).

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Subsequently, United States Magistrate Judge Bridget S. Bade issued a Report and

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Recommendation (“R&R”) (Doc 20). Following a thorough and comprehensive analysis,

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Judge Bade recommended denial of the Petition. Petitioner filed timely objections to the

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R&R (Doc. 21). Respondents filed no objections. The Court now issues its ruling.

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I. R&R

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The R&R includes a detailed factual and procedural background. The Petitioner

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asserted only two grounds for relief in his Petition. Taking into account Petitioner’s pro

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se status, however, and “liberally constru[ing] [his] Petition and memorandum[,]” Judge

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Bade “identifie[d] . . . eleven claims of ineffective assistance of counsel (“IAC”)[.]”

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(Doc. 20 at 12:3-5).

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eleven claims, finding that eight of them were procedurally barred and that four of those

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eight also lacked merit. Then, as to the eight claims which she deemed procedurally

In the R&R, Judge Bade painstakingly analyzed each of those

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barred, Judge Bade analyzed whether Petitioner could establish a basis to overcome the

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procedural bar, and she found that he could not. As to the three IAC claims which were

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properly before the Court, Judge Bade found that, nonetheless, they lacked merit.

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In light of the foregoing, Judge Bade found that Petitioner was not entitled to

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habeas corpus relief, and recommended denial of his Petition.

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recommended denial of a Certificate of Appealability and leave to proceed in forma

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pauperis on appeal because Petitioner did not make the requisite showing. (Doc. 20 at

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41:11-15). Judge Bade also instructed the parties that they “had fourteen days from the

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date of service of a copy of [her] recommendation within which to file specific written

Judge Bade further

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objections with the Court.” (Id. at 41:19-21) (citations omitted).

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equally explicit in instructing the parties that “[f]ailure to file timely objections to any

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factual determinations of the Magistrate Judge may be considered a waiver of a party’s

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right to appellate review of the findings of fact in an order or judgment entered pursuant

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to the Magistrate Judge’s recommendation.” (Id. at 42:1-4) (citing Fed. R. Civ. P. 72).

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II. Petitioner’s Objections

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Judge Bade was

Petitioner timely filed an objection to the R&R (Doc. 21).

Preliminarily,

Petitioner broadly states that “[c]ontrary to [Judge Bade’s] assertions[,]” he did
“sufficiently and fairly present[] the claims in his state post-conviction relief petition
which are rife with constitutional deprivations and which show that the proceedings were
fundamentally unfair and prejudicial in scope.” (Id. at 2). In similarly broad language,
the Petitioner concludes that his claims were “fairly and fully . . . presented to the State
Courts and should not be ruled as being barred procedurally.” (Id. at 18). Petitioner thus
urges this Court not to adopt the R & R and to “look to the merits of [his] habeas
petition.” (Id.).
As to Petitioner’s third IAC claim, that is, his trial counsel’s failure to object to the
jury instruction regarding molestation, Petitioner “objects to the [R & R’s] conclusion
that this claim lacks merit[.]” (Doc. 21 at 7). Plaintiff further “states that the record
supports his contention that [this particular claim] was fairly presented to the Arizona
Courts but they refused to entertain or address this issue.” (Id.) In his ninth IAC claim,
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Plaintiff asserted that his “trial counsel was ineffective for trial counsel was ineffective

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for failing to object to the prosecutor’s misconduct of presenting as aggravating

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circumstances prior convictions that were not properly attributed to Petitioner.” (Doc. 20

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at 27:2-4) (citations omitted).

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“procedurally barred or precluded where the Arizona Court of Appeals accepted the

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Petition for review and chose not to address this matter[.]” (Doc. 21 at 10). Turning to

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claim ten, that Petitioner’s “trial counsel was ineffective for failing to object to the judge,

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rather than a jury, finding the aggravating factors, including the prior convictions that the

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State erroneously alleged were attributed to Petitioner[,]” (Doc. 20 at 28:23-35) (citation

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omitted), Judge Bade found that this claim was “technically exhausted and procedurally

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barred[.]” (Id. at 29:17). Assigning “error” to this finding, Petitioner “states that it is

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clear that he has established a basis to overcome the procedural bar[.]”(Doc. 21 at 12).

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Further, if this Court agrees with Judge Bade and finds that seven of his claims are

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procedurally barred,1 Petitioner states “all show and demonstrate cause[]” to overcome

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that procedural bar. (Doc. 21 at 12).
In the remainder of his objection, Petitioner essentially reiterates the arguments in

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Petitioner “objects to the finding that” this claim is

his Petition, stating that he has fairly presented his claims to the Arizona state courts but
they refused to address them. Furthermore, Petitioner apparently concurs with the R&R
findings that he failed to raise certain claims in the state courts, but he nonetheless urges
this Court to review them.
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Actually, Judge Bade found that eight of Petitioner’s claims (one, two, three,
five, six, eight, nine, and ten) were all procedurally defaulted. (Doc. 20 at 30:2-3).
Petitioner omits claim eight, so presumably he agrees that this claim is procedurally
barred.
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III. Standard of Review

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This Court must “make a de novo determination of those portions of the report or

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specified proposed findings or recommendations to which” a Petitioner objects. 28

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U.S.C. § 636(b)(1)(C); see also Fed.R.Civ.P. 72(b)(3) (“The district judge must

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determine de novo any part of the magistrate judge’s disposition that has been properly

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objected to.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (same).

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Further, this Court "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); Fed.R.Civ.P.

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72(b)(3). At the same time, however, the relevant provision of the Federal Magistrates

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Act, 28 U.S.C. § 636(b)(1)(C), “does not on its face require any review at all . . . of any

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issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1989)

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(emphasis added); see also Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005)

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(“Of course, de novo review of a R & R is only required when an objection is made to the

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R & R, [Reyna– Tapia,] 328 F.3d [at] 1121. . . (“Neither the Constitution nor the [Federal

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Magistrates Act] requires a district judge to review, de novo, findings and

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recommendations that the parties themselves accept as correct”)[.]”). Likewise, it is

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well-settled that “’failure to object to a magistrate judge's factual findings waives the
right to challenge those findings[,]’” Bastidas v. Chappell, 791 F.3d 1155, 1159 (9th Cir.
2015) (quoting Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (internal
quotation marks omitted) (footnote omitted)), as Judge Bade advised the parties herein.
(See Doc. 20 at 42:1-4) (citation omitted). Finally, “[a]lthough the Ninth Circuit has not
yet ruled on the matter, other circuits and district courts within the Ninth Circuit have
held when a petitioner raises a general objection to an R & R, rather than specific
objections, the Court is relieved of any obligation to review it.” Martin v. Ryan, 2014 WL
5432133, at *2 (D.Ariz. 2014) (citing See, e.g., Warling v. Ryan, 2013 WL 5276367, at
*2 (D.Ariz. 2013) (“[A] general objection ‘has the same effect as would a failure to
object.’”); Gutierrez v. Flannican, 2006 WL 2816599 (D.Ariz. 2006) (citing Goney v.
Clark, 749 F.2d 5, 7 (3d Cir. 1984); Lockert v. Faulkner, 843 F.2d 1015, 1019 (7th
Cir.1988); Howard v. Sec. of Health and Human Servs., 932 F.2d 505, 509 (6th
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Cir.1991); United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th

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Cir.1996)).

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IV. Discussion

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Petitioner did filed timely objections, but he did not object to any of the

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information included in the R&R’s factual and procedural background section. Thus,

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consistent with 28 U.S.C. § 636(b)(1)(C), and the case law construing it, the Court is not

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reviewing that particular section at all. For a different reason, the Court finds that it has

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no independent obligation to engage in a de novo review of those portions of the R & R

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to which Petitioner did object. Petitioner has not triggered de novo review because, as is

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readily apparent, his objections lack the requisite specificity.

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undertake de novo review of Petitioner’s general objections, it would defeat the “obvious

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purpose” of the specific objection requirement, which “is judicial economy—to permit

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magistrate judges to hear and resolve matters not objectionable to the parties.” See

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Warling, 2013 WL 5276367, at *2 (citing Thomas, 474 U.S. at 149; Reyna–Tapia, 328

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F.3d at 1121). “Because de novo review of an entire R & R would defeat the efficiencies

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intended by Congress, a general objection “has the same effect as would a failure to

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Were this Court to

object.” See id. (citing Howard, 932 F.2d at 509; Haley v. Stewart, 2006 WL 1980649, at
*2 (D.Ariz. 2006)). In light of the foregoing, the Court has no obligation to review
Petitioner’s general objections to the R & R. See id. at *2 (citing Thomas, 474 U.S. 149).
V. Conclusion
IT IS ORDERED that Magistrate Judge Bade’s Report and Recommendation
(Doc. 20) is ACCEPTED 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.
IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing
Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis
on appeal are denied because dismissal of many of Petitioner’s claims is justified by a
plain procedural bar and reasonable jurists would not find the ruling debatable and
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because Petitioner has not made a substantial showing of the denial of a constitutional

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right.

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IT IS FINALLY ORDERED that the Clerk of the Court shall terminate this
action and enter judgment accordingly.
Dated this 19th day of October, 2016.

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Honorable Diane J. Humetewa
United States District Judge

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