Ibeabuchi v. Penzone et al

Filing 31

ORDER ACCEPTING and ADOPTING 25 Magistrate Judge's Report and Recommendation. The Motion to Stay (Doc. 23 ) is denied. Petitioner's Objections (Doc. 27 ) are overruled. The Motion to file an attachment (Doc. 30 ) is granted. The Petition for Writ of Habeas Corpus (Doc. 14 ) 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 2/15/19. (EJA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Ikemefula Charles Ibeabuchi,

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

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No. CV-18-00238-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 (Docs. 1), the Amended Petition (Doc. 9) and the Second Amended

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Petition. (Doc. 14) This Court is also in receipt of the Answer from the Respondents (Doc.

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21), Petitioner’s Reply (Doc. 22), Petitioner’s Motion to Stay the Proceedings (Doc. 23)

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and the Respondent’s Response to the Motion to Stay. (Doc. 24) Additionally, the Court

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is in receipt the Report and Recommendation of the Magistrate Judge (Doc. 25),

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Petitioner’s Motion to File Attachment (Doc. 26), Petitioner’s Objections (Doc. 27),

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Respondent’s Response to the Objections (Doc. 28), and Petitioner’s Attachment. (Doc.

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Petitioner argues in Ground 1 that several of his constitutional rights were violated.

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(Doc. 14 at 6) In Grounds 2 and 3, Petitioner argues additional violations of his

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constitutional rights when he “re-signed” “Condition 21” that he believes was not part of

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his original terms of probation in 2003. (Id. at 7-8) In Ground 4 the Petitioner argues his

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Arizona state court “sentencing order was jurisdictionally transferred to immigration which

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invalidated Arizona’s jurisdiction.” (Id. at 9) Respondents argue Petitioner’s claims are not

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properly before this Court because the Petitioner has failed to demonstrate that he is

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innocent and cannot excuse his procedural defaults. (Doc. 21 at 13-30) Respondents further

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argue the Petitioner failed to demonstrate his burden to show cause and prejudice, or a

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fundamental miscarriage of justice, to excuse the procedural defaults of his claims. (Id.)

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The Magistrate Judge concluded the Petitioner failed to raise the claims at issue in his direct

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appeal. (Doc. 25 at 3-10) Additionally, the Magistrate Judge concluded the claims are

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unexhausted and procedurally defaulted without excuse. (Id.)

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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 undertaken an extensive review of the sufficiently developed record.

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

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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 Boyle. This Court finds, although timely filed, the

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Petitioner’s claims are procedurally defaulted and are also without merit. Having carefully

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reviewed the record, the Petitioner has not shown that he is entitled to habeas relief. The
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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. 25) is

accepted and adopted by the Court;

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2.

That the Motion to Stay (Doc. 23) is denied;

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3.

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

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4.

That the Motion to file an attachment (Doc. 30) is granted;

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5.

That the Petition for Writ of Habeas Corpus (Doc. 14) 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 procedural

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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 15th day of February 2019.

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Honorable Steven P. Logan
United States District Judge

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