Gibson #181293 v. Ryan et al

Filing 28

ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION 24 - Petitioner's Objections (Doc. 27 ) are overruled. The Petition for Writ of Habeas Corpus (Doc. 1 ) is denied and this action is dismissed with prejudice. A Certificate of Appealabi lity 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 enter judgment accordingly and terminate this action. (See document for further details. Signed by Judge Steven P Logan on 7/11/19. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Eric Shaw Gibson,

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

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No. CV-17-03763-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 Answer from the Respondents (Doc. 18), and the

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Petitioner’s Reply. (Doc. 20) Additionally, the Court is in receipt of the Supplement to the

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Answer from the Respondent (Doc. 23), the Report and Recommendation of the Magistrate

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Judge (Doc. 24), and the Petitioner’s Objections. (Doc. 27)

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In the instant Petition, the Petitioner argues the performance of his trial and

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appellant counsel were ineffective for several reasons. (Doc. 1 at 6-7) Additionally, the

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Petitioner argues defective charging in the initial stages due to him receiving an

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Information and Direct Complaint instead of an Indictment. (Id. at 8)

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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 a

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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 carefully undertaken an extensive review of the sufficiently

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

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also been thoroughly considered.

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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 Metcalf. Having carefully reviewed the record, the

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Petitioner has not shown that he is entitled to habeas relief. The R&R will be adopted in

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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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2.

That the Petitioner’s Objections (Doc. 27) are overruled;

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3.

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 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 procedural

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bar and reasonable jurists would not find the ruling debatable; and

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5. That the Clerk of Court shall enter judgment accordingly and terminate this

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action.
Dated this 11th day of July 2019.

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Honorable Steven P. Logan
United States District Judge

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