Hernandez v. Ryan et al

Filing 21

ORDER: The Magistrate Judge's Report and Recommendation 19 is accepted and adopted by the Court. The Petitioner's Objections 20 are overruled. The Petition for Writ of Habeas Corpus 1 is denied and this action is dismissed with prejud ice. 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. The Clerk of Court shall terminate this action. Signed by Judge Steven P Logan on 12/20/2017. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Johnathan T. Hernandez,

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Petitioner,
v.

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Charles L. Ryan, et al,
Respondents.

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No. CV-16-02727-PHX-SPL
ORDER

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

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28 U.S.C. § 2254. (Doc. 1.) The Court has also received Respondents’ Answer (Doc.

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11), and Petitioner’s Traverse. (Doc. 18.)

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Recommendation (R&R) of United States Magistrate Judge Deborah M. Fine (Doc. 19),

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and Petitioner’s timely Objections. (Doc. 20.)

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We also have before us the Report and

Petitioner was indicted, August 9, 2010, on three counts: sexual conduct with a

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minor (Counts 1 and 2), and child prostitution (Count 3). (Doc. 11, Ex. A.) The

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petitioner was subsequently offered a plea agreement that would require the Petitioner to

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plead guilty to one count of child prostitution and two counts of attempted sexual contact

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with a minor. (Doc. 11, Ex. C.) The Petitioner rejected the offer from Maricopa County

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and the jury subsequently found the Petitioner guilty on Count 1, acquitted him on Count

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2 and the jury deadlocked on Count 3. (Doc. 11, Ex. J.) The Petitioner was sentenced to

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18 years of imprisonment. (Doc. 11, Ex. L.)

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The Petitioner raises one ground for relief in his Petition for Writ of Habeas

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Corpus. The Petitioner argues that his trial counsel was ineffective because trial counsel

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provided Petitioner with a mistake as to the victim’s age defense which Petitioner alleges

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led to his rejection of the plea offer from Maricopa County. (Doc. 1 at 6.) Respondents

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argue that the claims of the Petitioner are meritless and the Petition should be denied.

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(Doc. 11.)

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Judge Fine concluded the Petitioner has not asserted a colorable claim and that he

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is not entitled to an evidentiary hearing. (Doc. 19.) Additionally, the magistrate judge

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further concluded that the state court acted reasonably in refusing Petitioner’s requests for

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an evidentiary hearing. (Id.)

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Petitioner articulated his displeasure with Judge Fine’s findings and conclusions.

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(Doc. 20 at 5-11.) The Petitioner also repeated the same arguments that were laid out in

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the Petition and Traverse. (Docs. 1, 18.)

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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 finds that although the Petitioner filed objections (Doc. 20), he failed to

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

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Nonetheless, the Court has undertaken an extensive review of the sufficiently developed
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record and the objections to the findings and recommendations in the very detailed R&R,

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without the need for an evidentiary hearing.

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After conducting a de novo review of the issues and objections, the Court reaches

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the same conclusions reached by Judge Fine. Specifically, the Court finds the Petition

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fails on the merits.

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

accepted and adopted by the Court;

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That the Petitioner’s Objections (Doc. 20) are overruled;

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That the Petition for Writ of Habeas Corpus (Doc. 1) is denied and this

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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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That the Clerk of Court shall terminate this action.

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Dated this 20th day of December, 2017.

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Honorable Steven P. Logan
United States District Judge

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