Large v. Ryan et al

Filing 23

ORDER: The Magistrate Judge's Report and Recommendation (Doc. 19 ) is accepted and adopted by the Court. Petitioner's Objections (Docs. 20 , 22 ) are overruled. Petitioner's Motion to Expand the Record (Doc. 11 ) is denied as moo t. Petitioner's Motion for Evidentiary Hearing (Doc. 16 ) is denied. The Petition for Writ of Habeas Corpus (Doc. 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. The Clerk of Court shall terminate this action. Signed by Judge Steven P Logan on 1/30/19. (EJA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jonathan Elijah Large,

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

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No. CV-17-04526-PHX-SPL
ORDER

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Pending before the Court is Petitioner’s Petition for Writ of Habeas Corpus pursuant

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to 28 U.S.C. § 2254 (Doc. 1). The Court has received Respondents’ Answer (Doc. 12),

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Petitioner’s Reply (Doc. 15), the Report and Recommendation (“R&R”) of the Magistrate

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Judge (Doc. 19), Petitioner’s Objections (Doc. 20), the Response to Petitioner’s Objections

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(Doc. 21), and the Reply to the State’s Response (Doc. 22). The Court also has before it

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briefs on Petitioner’s Motion to Expand Record (Docs. 11, 14) and Petitioner’s Request for

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Evidentiary Hearing (Docs. 16, 17, 18).

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Petitioner raises eight grounds for relief. In Ground One, Petitioner alleges that his

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sentence was unconstitutional in light of Alleyne v. United States, 570 U.S. 99 (2013), and

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he was entitled to have a jury determine his parole status before the trial court increased

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his statutory minimum sentence (Doc. 1 at 6). Within Ground One, Petitioner further

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argues that his constitutional rights were violated because the indictment lacked any

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reference to A.R.S. § 13-708 (Doc. 1 at 6). In Grounds Two through Eight, Petitioner

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alleges various claims of ineffective assistance of counsel (Doc. 1 at 7-13). Respondents

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argue that Petitioner’s Sixth Amendment rights were not violated pursuant to Alleyne (Doc.

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12 at 16-19), and his ineffective assistance of counsel claims fail because he has not shown

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either deficient performance or prejudice (Doc. 12 at 14-16). The Magistrate Judge

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concluded that Petitioner was not prejudiced by the Alleyne error (Doc. 19 at 12-13), his

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claim with respect to the indictment is procedurally defaulted (Doc. 19 at 13-14), and his

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ineffective assistance of counsel claims fail on the merits (Doc. 14-20).

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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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and the objections to the findings and recommendations in the R&R, without the need for

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an evidentiary hearing or expansion of the record. After conducting a de novo review of

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the issues and objections, the Court reaches the same conclusions reached by Judge Fine.

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Specifically, the Court finds all eight of Petitioner’s claims lack merit. The Court further

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finds that the indictment claim is unexhausted and procedurally defaulted.
Having carefully reviewed the record, the Petitioner has not shown that he is entitled

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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. 19) is

accepted and adopted by the Court;

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2.

That the Petitioner’s Objections (Docs. 20, 22) are overruled;

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That Petitioner’s Motion to Expand the Record (Doc. 11) is denied as moot;

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4.

That Petitioner’s Motion for Evidentiary Hearing (Doc. 16) is denied;

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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 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 jurists of reason would not find the procedural ruling debatable, and because jurists

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of reason would not find the court’s assessment of the constitutional claim debatable or

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wrong; and

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That the Clerk of Court shall terminate this action.

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Dated this 30th day of January, 2019.

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Honorable Steven P. Logan
United States District Judge

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