Notice v. Ryan et al

Filing 26

ORDER ADOPTING REPORT AND RECOMMENDATION: Magistrate Judge Metcalf's R&R 22 is accepted and adopted. The Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 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 Petitioner has not made a substantial showing of the denial of a constitutional right. The Clerk of Court shall terminate this action and enter judgment accordingly. Signed by Judge Diane J Humetewa on 11/03/2017. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Christopher A. Notice,
Petitioner,

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ORDER

v.

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No. CV-16-00947-PHX-DJH

Charles L. Ryan, et al.,

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Respondents.

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This matter is before the Court on Petitioner’s Petition for Writ of Habeas Corpus

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pursuant to 28 U.S.C. § 2254 (Doc. 1) filed on April 4, 2016 and the Report and

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Recommendation (“R&R”) (Doc. 22) issued by United States Magistrate Judge James F.

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Metcalf on February 2, 2017. Petitioner filed a one-paragraph Objection to the R&R

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("Objection") (Doc. 25) on March 16, 2017.

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Following a jury trial in early 2013, Petitioner was convicted of one count of

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possession of marijuana, a class two felony under Arizona law (count one) and one count

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of sale or transportation of marijuana, a class two felony (count two). (Doc. 22 at 3).

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The trial court sentenced Petitioner to concurrent terms of five years in prison on each of

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the two counts. (Id.).

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Petitioner raised four grounds for relief in the Petition. (Doc. 4 at 2; Doc. 22 at 4).
In each of the four grounds, Petitioner seeks enforcement of the exclusionary rule,
claiming that evidence used against him at trial was obtained in violation of his Fourth
Amendment rights and should have been excluded. (Doc. 22 at 5). Judge Metcalf
determined that Plaintiff is not entitled to habeas relief on the basis that evidence

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introduced at his trial was improperly obtained in violation of the Fourth Amendment.

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(Doc. 22 at 5-6). Judge Metcalf relied on Stone v. Powell, 428 U.S. 465, 494 (1976), in

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which the Supreme Court held that “where the State has provided an opportunity for full

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and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted

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habeas corpus relief on the ground that the evidence obtained in an unconstitutional

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search or seizure was introduced at his trial.”

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opportunity for a full and fair litigation of Petitioner’s Fourth Amendment claims in the

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state courts. (Doc. 22 at 5). He further found that although Petitioner also referenced the

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Fifth Amendment in his Petition, he failed to sufficiently allege a claim for relief under

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the Fifth Amendment. For these reasons, Judge Metcalf recommends the Petition be

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denied. (Doc. 22 at 8-9).

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Judge Metcalf found there was an

As noted, Petitioner has filed an Objection (Doc. 25) to the R&R. Petitioner

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identifies no specific objections to Judge Metcalf’s findings or analysis.

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paragraph filing merely states that he “object[s] to the recommendation” of Judge

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Metcalf.

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His one-

The district judge "shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made."
28 U.S.C. § 636(b)(1)(C); see also Fed.R.Civ.P. 72(b)(3) (“The district judge must
determine de novo any part of the magistrate judge’s disposition that has been properly
objected to.”); U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (same). The judge "may
accept, reject, or modify, in whole or in part, the findings or recommendations made by
the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(3).
Because Petitioner has not objected to specific “portions of the report or specified
proposed findings or recommendations,” the Court is not required to conduct a de novo
review here.

Plaintiff simply fails to identify which aspects of the R&R he finds

objectionable. Nonetheless, the Court has reviewed Judge Metcalf’s comprehensive and
well-reasoned R&R and agrees with its findings and recommendations. The Court will,
therefore, accept the R&R and dismiss the Petition. See 28 U.S.C. § 636(b)(1)(C) (“A
judge of the 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) (same).

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Based on the foregoing,

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IT IS ORDERED that Magistrate Judge Metcalf’s R&R (Doc. 22) is accepted

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and adopted.
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 Petitioner has not made a substantial showing of the denial

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of a constitutional right.
IT IS FINALLY ORDERED that the Clerk of Court shall terminate this action
and enter judgment accordingly.
Dated this 3rd day of November, 2017.

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Honorable Diane J. Humetewa
United States District Judge

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