Hausner #217324 v. Ryan et al

Filing 25

ORDER ADOPTING REPORT AND RECOMMENDATION - 1. That the Magistrate Judge's Report and Recommendation (Doc. 19 ) is accepted and adopted by the Court; 2. That the Petitioner's Objections (Doc. 23 ) are overruled; 3. That the Amended Petitio n for Writ of Habeas Corpus (Doc. 9 ) is denied and this action is dismissed with prejudice; 4. That a Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied because the dismissal of the Petition is justified by a plain procedural bar and reasonable jurists would not find the ruling debatable; and 5. That the Clerk of Court shall terminate this action. (See document for further details). Signed by Judge Steven P Logan on 7/31/17. (SLQ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jeffrey Joseph Hausner,

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Petitioner,
v.

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Charles L. Ryan, et al.,
Respondents.

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No. CV-15-00650-PHX-SPL
ORDER

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The Court has before it Petitioner’s Amended Petition for Writ of Habeas Corpus

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pursuant to 28 U.S.C. § 2254 (Doc. 9), Respondents’ Answer (Doc. 15), and Petitioner’s

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Reply (Doc. 16). We also have before us the Report and Recommendation (R&R) of the

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United States Magistrate Judge (Doc. 19), recommending denial of the Petition,

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Petitioner’s timely Objections (Doc. 23), and the Respondents’ Response to the

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Petitioner’s Objections to the Report and Recommendation (Doc. 24).

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Petitioner was found guilty by a jury of one count of attempted first degree murder

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(Count 1), and one count of aggravated assault (Count 2) (Doc. 15, Exhs. A, M).

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Finding that the Petitioner had a historical dangerous felony conviction, he was sentenced

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to an 18 year prison term for Count 1, and an 11.25 year concurrent prison term for Count

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2. The court ordered that the sentences run consecutive to a prior state court conviction

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two years earlier (Doc. 15, Exh. W at 4, 8, 15-17).

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The Petitioner raises five grounds for relief in his Petition for Writ of Habeas

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Corpus. In Ground One, the Petitioner argues the government committed prosecutorial

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misconduct by commenting on an unrelated serial shooter case that denied the Petitioner

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of his due process and fundamental fairness under the Arizona and United States

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Constitution. In Ground Two, the Petitioner argues he was denied a fair trial because the

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chronic prejudicial information involving references to the serial shooter investigation

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and case were mentioned during the trial. In Ground Three, the Petitioner argues that

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sufficient evidence did not exist to support a conviction for either count. In Ground

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Four, the Petitioner argues the verdict form was deficient because it did not provide the

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jury with an opportunity to return a general verdict of unable to decide. In Ground Five

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(A), the Petitioner argues his state rights were violated when the superior court failed to

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grant post-conviction relief based on newly discovered evidence. The Petitioner argues in

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Ground Five (B), ineffective assistance of counsel for failure to file a motion for change

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of venue, failure to use cellular phone records, failure to call a witness to testify on

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Petitioner’s behalf and failure to determine whether Petitioner could have stabbed the

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victim with his left hand (Doc. 9 at 6-17).

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The Magistrate Judge concluded that Ground Five (A) is procedurally barred from

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federal habeas corpus review and further concluded that the Petitioner has not established

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a basis to overcome that bar. Additionally, the Magistrate Judge held the Petitioner has

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not shown that he is entitled to habeas corpus relief on his remaining claims (Doc. 19 at

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41).

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In his Objections to the Report and Recommendation, Petitioner specifically

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objects to the conclusion of the United States Magistrate Judge that Ground Five (A) is

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procedurally defaulted, and that the remainder of the Petitioner’s claims fail on the merits

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(Doc. 23 at 6). The Petitioner submits his PCR counsel and appeals counsel failed to

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present to state courts the substance of his federal habeas corpus claim and that both

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failed to separately present both the operative facts and the federal legal theory of

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innocence on which his claim is based. Furthermore, the Petitioner argues his relief

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would come from the federal court and that it was futile to pursue his issues with the

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Arizona Supreme Court.

Additionally, the Petitioner argues the Magistrate Judge
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followed the Respondent’s Answer (Doc. 15) in deciding the conclusion in the R&R

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(Doc. 23 at 6-8). Respondents argue in their Response to Objections that the majority of

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Petitioner’s arguments are adequately addressed in the Magistrate Judge’s R&R and that

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the Court should overrule Petitioner’s objections, denying and dismissing the petition

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with prejudice, and deny a certificate of appealability (Doc. 24 at 1-3).

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A district judge “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). When a party files

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a timely objection to an R&R, the district judge reviews de novo those portions of the

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R&R that have been “properly objected to.” Fed. R. Civ. P. 72(b). A proper objection

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requires specific written objections to the findings and recommendations in the R&R. See

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United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); 28 U.S.C. §

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636(b)(1). It follows that the Court need not conduct any review of portions to which no

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specific objection has been made. See Reyna-Tapia, 328 F.3d at 1121; see also Thomas v.

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Arn, 474 U.S. 140, 149 (1985) (discussing the inherent purpose of limited review is

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judicial economy). Further, a party is not entitled as of right to de novo review of

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evidence or arguments which are raised for the first time in an objection to the R&R, and

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the Court’s decision to consider them is discretionary. United States v. Howell, 231 F.3d

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615, 621-622 (9th Cir. 2000).

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The Court has undertaken an extensive review of the sufficiently developed record

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and the specific written objections to the findings and recommendations in the very

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detailed R&R, without the need for an evidentiary hearing. After conducting a de novo

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review of the issues and objections, the Court finds the Magistrate Judge was correct in

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the conclusions reached in the R&R.

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miscarriage of justice based on the issues the Petitioner raised about the performance of

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assigned trial and appellate counsel. Additionally, the Court finds Ground Five (A) is

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procedurally defaulted, and the Magistrate Judge reached the right conclusion that the

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remaining claims fail on the merits.

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Specifically, the Court finds no fundamental

Having carefully reviewed the record, the Petitioner has not shown that he is
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entitled to habeas relief. Finding none of Petitioner’s objections have merit, the R&R

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will be adopted in full. Accordingly,

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IT IS ORDERED:

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1.

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That the Magistrate Judge’s Report and Recommendation (Doc. 19) is

accepted and adopted by the Court;

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2.

That the Petitioner’s Objections (Doc. 23) are overruled;

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3.

That the Amended Petition for Writ of Habeas Corpus (Doc. 9) is denied

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and this action is dismissed with prejudice;
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That a Certificate of Appealability and leave to proceed in forma pauperis

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on appeal are denied because the dismissal of the Petition is justified by a plain

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procedural bar and reasonable jurists would not find the ruling debatable; and

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5.

That the Clerk of Court shall terminate this action.

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Dated this 31st day of July, 2017.

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Honorable Steven P. Logan
United States District Judge

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