Herrell #73244 v. O'Neil et al
Filing
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ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION 14 - 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 pursua nt 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 Petition has not made a substantial showing of the denial of a constitutional right. IT IS FINALLY ORDERED that the Clerk of Court shall terminate this action and enter judgment accordingly. (See document for further details). Signed by Judge Diane J Humetewa on 9/16/16. (LAD)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Neal Arthur Herrell,
Petitioner,
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ORDER
v.
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No. CV-15-02416-PHX-DJH
James O'Neil, et al.,
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Respondents.
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This matter is before the Court on pro se Petitioner’s Petition for Writ of Habeas
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Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) and the Report and Recommendation (“R
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& R”) by United States Magistrate Judge James F. Metcalf. (Doc. 14). In that R & R, the
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Magistrate Judge determined that the petition is without merit and therefore
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recommended that it be denied. Petitioner timely filed “written objections” to the R & R
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(Doc. 15.) and Respondents filed a response to Petitioner’s objections. (Doc. 16).1
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A. 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” Petitioner is objecting. 28
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U.S.C. § 636(b)(1)(C); see also U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)
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(emphasis added) (“Neither the Constitution nor the statue requires a district judge to
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Thereafter, Plaintiff impermissibly filed a “Response to Respondent’s Response
to [his] Objection[]” (Doc. 17). The Court sua sponte strikes this document as
Fed.R.Civ.P. 72(b)(2) does not allow for such a filing. It only allows for the filing of
“specific written objections” to a R & R and a response to those objections. Fed.R.Civ.P.
72(b)(2).
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review, de novo, findings and recommendations that the parties themselves accept as
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correct.”). A district court, however, “must determine de novo any part of the magistrate
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judge’s disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). Further, a
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district court "may accept, reject, or modify, in whole or in part, the findings or
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recommendations made by the magistrate judge.” Fed.R.Civ.P. 72(b)(3); see also 28
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U.S.C. § 636(b)(1)(C).
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B. Analysis
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As stated above, Petitioner filed what he titled “written objections” to the R&R.
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(Doc. 15). Respondents urge the Court to overrule Petitioner’s objections because they
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are not “specific written objections to the proposed findings and recommendations” as
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Rule 72(b)(2) requires.
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objections “do no more than reiterate his version of the facts . . . and make the same
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general assertions[,]” that are in the Petition. (Doc. 16 at 1:26-28) (emphasis in original).
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The Court agrees. Petitioner’s version of the facts, among other things, omits that he
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failed to object at re-sentencing when the State again requested a consecutive sentence.
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(Doc. 13, exh. P at ¶ 4). Moreover, in his objections Petitioner ridicules the Magistrate
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Judge, among others, as being “mind readers[,]” and backhandedly states that the R &
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R’s analysis is “absolutely ridiculous.” (Doc. 15 at 3:3; 5 at 5). These gratuitous
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comments can hardly be said to be proper, specific objections to the R & R. Thus, even
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liberally construing Petitioner’s objections, the Court finds that they amount to a general
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objection of which this Court has no obligation to review. See Martin v. Ryan, 2014 WL
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5432133, at *2 (D.Ariz. 2014) (citing See, e.g., Warling v. Ryan, 2013 WL 5276367, at
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*2 (D.Ariz. 2013) (“[A] general objection ‘has the same effect as would a failure to
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object.’”). Nonetheless, the Court has reviewed the R & R and the record and agrees
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with the Magistrate Judge’s sound analysis and recommendation.
Specifically, Respondents assert that Petitioner’s purported
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Accordingly,
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IT IS ORDERED that Magistrate Judge James F. Metcalf’s R & R (Doc. 14) is
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accepted and adopted as an order of this Court.
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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 Petition has not made a substantial showing of the denial of
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a constitutional right.
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IT IS FINALLY ORDERED that the Clerk of Court shall terminate this action
and enter judgment accordingly.
Dated this 16th day of September, 2016.
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Honorable Diane J. Humetewa
United States District Judge
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