Gibbs v. Ryan et al

Filing 30

ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION 24 - Petitioner's Objections (Doc. 28 ) are overruled. The Petition for Writ of Habeas Corpus (Doc. 1 ) is denied and this action is dismissed with prejudice. Petitioner's Motion for Certificate of Appealability (Doc. 27 ) is denied and leave to proceed in forma pauperis is denied. The Clerk of Court shall terminate this action. (See document for further details). Signed by Judge Steven P Logan on 10/5/18. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Murray E. Gibbs,

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Petitioner,
v.
Charles L. Ryan, et al.,
Respondents.

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No. CV-16-03553-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. 19),

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Petitioner’s Reply to the Answer (Doc. 22), the Report and Recommendation of the

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

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(Doc. 28), Petitioner’s Motion for Certificate of Appealability (Doc. 27), and Respondents’

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Reply to Petitioner’s Objections (Doc. 29).

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In Ground 1 of his habeas Petition, Petitioner argues that the prosecutor committed

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misconduct by allowing the jury to hear testimony that was perjured by a spectator

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coaching a witness. (Doc. 1 at 6.) In Ground 2, Petitioner contends that his trial counsel

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was ineffective for failing to procure a hospital receipt that would have proved Petitioner’s

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alibi.

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demonstrates that his trial counsel was uninformed and unprepared to put on a defense, and

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therefore, Petitioner received ineffective assistance of counsel. Id. at 8. In Ground 4,

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Petitioner alleges that the prosecutor committed misconduct because the jury heard

Id. at 7.

In Ground 3, Petitioner argues that a failed impeachment attempt

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testimony that had not been disclosed to the defense, specifically a witness statement that

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came out for the first time at trial about hearing a diesel engine start up. Id. 1 at 9. In

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Ground 5, Petitioner argues that his conviction is unconstitutional because the jury

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instruction on the conspiracy charge failed to identify the underlying crime. Id. at 13.

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Respondents argue that Petitioner’s claims are untimely, and that even if Petitioner

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did assert timely claims, the state courts’ rejection of his claims was not objectively

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unreasonable. (Doc. 19 at 1.) The Magistrate Judge concluded that Petitioner’s habeas

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Petition was timely filed, but that Petitioner is not entitled to habeas relief. (Doc. 24 at 7.)

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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 R&R

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

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

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States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); 28 U.S.C. § 636(b) (1). It

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follows that the Court need not conduct any review of portions to which no specific

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objection has been made. See Reyna-Tapia, 328 F.3d at 1121; see also Thomas v. Arn, 474

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

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

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arguments which are raised for the first time in an objection to the R&R, and the Court’s

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decision to consider them is discretionary. United States v. Howell, 231 F.3d 615, 621-622

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(9th Cir. 2000).

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

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Petitioner’s objections to the findings and recommendations have also been carefully

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

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reaches the same conclusions reached by Judge Fine.

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Petitioner objects that the Magistrate Judge has incorrectly interpreted one of his

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claims of ineffective assistance of counsel as it relates to failed impeachment of a witness.

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(Doc. 28 at 7.) Petitioner contends that his argument is not that his trial counsel failed to
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impeach a witness, but rather, that his trial counsel repeatedly showed that he was not

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prepared, and was unfamiliar with prior statements made by the witness. Id. This Court

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finds that the Magistrate Judge correctly framed Petitioner’s claim by stating, “[Petitioner]

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claims that his trial counsel was ineffective for the failed attempt to impeach Grinstead for

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his testimony about whether [Petitioner] had a gun in Pursell’s apartment. [Petitioner]

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claims that this shows that his trial counsel was not sufficiently prepared.” (Doc. 24 at 7;

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citing Doc. 1 at 8; Doc. 22-1 at 2, 28-30; Doc. 22-2 at 20-22).

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Having carefully reviewed the record, Petitioner has not shown that he is entitled to
habeas relief. The R&R 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. 24) is

accepted and adopted by the Court;

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That Petitioner’s Objections (Doc. 28) are overruled;

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

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is dismissed with prejudice;

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That Petitioner’s Motion for Certificate of Appealability (Doc. 27) is denied;

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That leave to proceed in forma pauperis on appeal is denied; and

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That the Clerk of Court shall terminate this action.

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Dated this 5th day of October, 2018.

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Honorable Steven P. Logan
United States District Judge

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