White v. Ryan et al

Filing 9

ORDER ADOPTING REPORT AND RECOMMENDATION 8 in its entirety and incorporating same into this Order. IT IS FURTHER ORDERED denying the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1 ) and dismissing this matter with pr ejudice. IT IS FURTHER ORDERED denying a Certificate of Appealability and leave to proceed in forma pauperis on appeal in this matter because the dismissal of the instant Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable. (See document for further details). Signed by Judge John J Tuchi on 9/1/16. (LAD)

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NOT FOR PUBLICATION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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Kendall La Shonne White,
Petitioner,

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ORDER

v.

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No. CV-15-02482-PHX-JJT

Charles L. Ryan, et al.,

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Respondents.

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At issue is Petitioner Kendall LaShonne White’s Petition under 28 U.S.C. §2254

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for Writ of Habeas Corpus (Doc. 1). United States Magistrate Judge James F. Metcalf

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issued a Report and Recommendation (“R&R”) in the matter recommending denial and

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dismissal of the Petition (Doc. 8). The time to object passed over three months ago and

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no party has objected, timely or otherwise. The Court thus may accept the R&R without

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

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Court nonetheless has conducted its own review of the Petition, and for the reasons set

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forth in the R&R, this Court will deny and dismiss the Petition.

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In the R&R, Judge Metcalf thoroughly and correctly analyzed the issues involved

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in the instant Petition, and because this Court will adopt the recommendations set forth in

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the R&R as well as the reasoning behind those recommendations, it will not restate those

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issues or their resolution here in detail. The R&R, in a very straightforward manner,

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reasons through the application of either a procedural bar or procedural defaults to each

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ground for relief set forth in the Petition.

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Petitioner’s Ground One—for ineffective assistance of counsel at his change of

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plea hearing where counsel allegedly failed to advise him that his plea deal had

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changed—was raised at Petitioner’s in pro per PCR petition, but was found untimely

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under Arizona’s time bar, Ariz. R. Crim. Pr. 32.4, which bar has been found to be an

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independent and adequate basis for denial of relief. Federal review of this ground is thus

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barred.

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Ground Two—wherein Petitioner claims his sentence violated the terms of his

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plea agreement—was never presented to the Arizona Court of Appeals and therefore is

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unexhausted, and is now procedurally barred under Arizona’s time bar, Rule 32.4, and its

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preclusion bar, Rule 32.2(a)(2).
Ground Three—Petitioner’s claim of prosecutorial misconduct—was not
exhausted and also is now procedurally defaulted due to passage of time.

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Ground Four—a separate claim of ineffective assistance of counsel because that

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counsel left the room when Petitioner signed the plea agreement—was not exhausted

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because it was never presented to the PCR court or the Arizona Court of Appeals, and is

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now procedurally defaulted due to the passage of time.

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Petitioner has failed to show either cause or prejudice sufficient to excuse his

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procedural defaults on Grounds Two, Three or Four, or to overcome the procedural bar

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on independent and adequate state grounds against maintaining Ground One, within the

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meaning of Reed v. Ross, 468 U.S. 1 (1984). Petitioner failed to assert a basis for cause

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and prejudice in his Petition, and once raised by Respondents in their limited response, he

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failed to file any reply at all. Petitioner’s claim of ineffective assistance of counsel in

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failing to advise him of the change in plea offer was not raised in the PCR proceeding.

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To the extent the Petition can be read to attribute that failure to ineffective PCR counsel,

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it might be subject to analysis under Martinez v. Ryan, 132 S. Ct. 1309 (2012). Judge

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Metcalf conducted that analysis, and correctly concluded, for the reasons set forth in the

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R&R, Martinez does not save the ground.

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IT IS ORDERED adopting Magistrate Judge Metcalf’s R&R (Doc. 8) in its
entirety and incorporating same into this Order.
IT IS FURTHER ORDERED denying the Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 (Doc. 1) and dismissing this matter with prejudice.

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IT IS FURTHER ORDERED denying a Certificate of Appealability and leave to

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proceed in forma pauperis on appeal in this matter because the dismissal of the instant

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Petition is justified by a plain procedural bar and jurists of reason would not find the

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procedural ruling debatable.

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Dated this 1st day of September, 2016.

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Honorable John J. Tuchi
United States District Judge

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