Bauer v. Ryan et al

Filing 21

ORDER: The Magistrate Judge's Report and Recommendation 18 is accepted and adopted by the Court. Petitioner's Objections 19 are overruled. The Petition for Writ of Habeas Corpus 1 is denied and this action is dismissed with prejudice. 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 6/19/2018. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Kenneth Harrison Bauer,

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Petitioner,
v.

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Charles L. Ryan, et al.,
Respondents.

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No. CV-17-01557-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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14), Petitioner’s Reply (Doc.17), the Report and Recommendation of the Magistrate

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Judge (Doc. 18), Petitioner’s Objections (Doc. 19), and the Response to the Petitioner’s

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Objections. (Doc. 20.)

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Petitioner argues in Ground One that the State’s interpretation of the AMMA

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violates cannons of statutory construction and well-established United States Supreme

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Court decisions and that the incarceration of the Petitioner is unconstitutional for lack of

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due process protection under the 14th Amendment. (Doc. 1 at 6-19.) Ground Two,

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Petitioner argues ambiguity in the nature of the AMMA must be resolved in favor of the

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Petitioner pursuant to the Rule of Lenity and that Petitioner’s incarceration is

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unconstitutional for lack of due process protection under the 5th and 14th Amendments.

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(Id. at 20-25.) Respondents argue the Arizona Court of Appeals’ determination that the

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immunity provision in Arizona Revised Statute 36-2811(B) (3) is not vague or

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ambiguous, and its refusal to apply the Rule of Lenity, was not contrary to, or an

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unreasonable application of clearly established Supreme Court precedent. (Doc. 14, at 9-

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27.)

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Arizona Court of Appeals’ holding that A.R.S. § 36-2811(B) (3) was not ambiguous, or

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its affirming of Petitioner’s convictions and sentences, was either “contrary to, or

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involved an unreasonable application of, clearly established federal law, as determined by

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the Supreme Court of the Unites States” or “based on an unreasonable determination of

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the fact in light of the evidence presented in the State court proceeding.” (8 U.S.C. §

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2254(d)) (Doc. 18, at 1-14.)

The Magistrate Judge concluded the Petitioner failed to demonstrate that the

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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. § 636(b)

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(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 has undertaken an extensive review of the sufficiently developed

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record. The Petitioner’s seven objections to the findings and recommendations have been

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

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Court reaches the same conclusions reached by Judge Fine.

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Having carefully reviewed the record, the 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. 18) is

accepted and adopted by the Court;

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That the Petitioner’s Objections (Doc. 19) 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 19th day of June, 2018.

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Honorable Steven P. Logan
United States District Judge

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