Olguin #211897 v. Thornell et al

Filing 23

ORDER: The Report and Recommendation of the Magistrate Judge (Doc. 18 ) is accepted. The Clerk shall enter judgment denying and dismissing Petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1) with pre judice. The Clerk shall terminate this action. A certificate of appealability should be denied because Petitioner has not made a substantial showing of the denial of a constitutional right and because jurists of reason would not find the Court's rejection on constitutional grounds of Petitioner's claims to be "debatable or wrong." Signed by Senior District Judge G Murray Snow on 3/5/2025. (KJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Eric Samual Olguin,
Petitioner,

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v.

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Ryan Thornell, et al.,

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No. CV-24-00581-PHX-GMS
ORDER
and
DENIAL OF CERTIFICATE OF
APPEALABILILTY AND IN FORMA
PAUPERIS STATUS

Respondents.

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Pending before the Court is the Report and Recommendation (“R&R”) of

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Magistrate Judge Deborah M. Fine (Doc. 18).

The R&R recommends that Petitioner’s

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Petition for Writ of Habeas Corpus be dismissed with prejudice. The Magistrate Judge

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advised the parties that they had fourteen days to file objections to the R&R. (R&R at 30

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(citing United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Petitioner was

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granted an extension through February 21, 2025, within which to file specific written

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objections (Doc. 20). Petitioner filed objections on February 19, 2025 (Doc. 21) and

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Respondents filed a reply on March 4, 2025 (Doc. 22).

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In his objections, Mr. Olguin asserts that the trial court deprived him of his Sixth

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Amendment right to effectively cross-examine his co-defendant, and he appropriately

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“federalized” his claim by citing to United States Supreme Court cases in his appellate

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briefing. (Doc. 21, p. 2). However, as the R&R sets forth, Petitioner did not fairly present

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this constitutional claim in a procedurally appropriate manner. (Doc. 18, p. 13). Because

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Mr. Olguin did not fairly present his Ground One Claim to the Arizona Court of appeals in

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a procedurally appropriate manner, the claim was not exhausted.

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Mr. Olguin also asserts that his citation to Arizona Rules of Evidence in his appellate

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briefing should be construed to include citations to the Federal Rules of Evidence because

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they are identical (Doc. 21, p. 7). Nevertheless, reference to federal evidentiary rules

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would be insufficient to apprise the state court of a federal constitution claim. Cf. Castillo

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v. McFadden, 399 F.3d 993, 1001 (9th Cir. 2005) (noting that citation to a federal case that

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“discussed federal evidentiary rules, not due process principles” was insufficient to “alert[]

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the Arizona court to his [federal constitutional] claim”).

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Mr. Olguin further asserts that he cited to “relevant United States Supreme Court

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cases” in his opening brief. (Doc. 21, p. 9). However, as noted in the R&R, it is well

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established that raising an analogous or closely similar state claim to a federal claim is not

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sufficient for exhaustion. See Castillo, 399 F.3d at 998–99; Johnson v. Zenon, 88 F.3d 828,

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830-31 (9th Cir. 1996); Hiivala, 195 F.3d at 1106-07. (Doc. 18, p. 13). Further, Olguin’s

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citations to federal cases did not alert the state courts that he was making any federal

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constitution claims (Id., pp. 13-15).

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Mr. Olguin objects to the R&R’s rejection of his claim that his appellate counsel

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was ineffective because she failed to raise an issue regarding the absence of a limiting

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instruction on the use of the co-defendant’s plea agreement (Doc. 21, pp. 10-12), which he

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asserts was highly prejudicial. (Id. at 11). However, as pointed out in the R&R, Olguin

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was unable to show that the courts had unreasonably applied Strickland v. Washington, 466

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U.S. 668, 687 (1984) in determining he had not shown the required prejudice from the

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absence of the instruction or appellate counsel’s failure to raise the issue.(Doc. 18, pp. 28-

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29).

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The Court agrees with the Magistrate Judge’s determinations. Mr. Holguin’s

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objections do not refute her resulting conclusions about procedural default, or that

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Petitioner’s claims of ineffective assistance of counsel fail on the merits.

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The Court thus accepts the recommended decision within the meaning of Rule

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72(b), Fed. R. Civ. P., and overrules Petitioner’s objections. See 28 U.S.C. § 636(b)(1)

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(stating that the district court “may accept, reject, or modify, in whole or in part, the

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findings or recommendations made by the magistrate”).

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IT IS ORDERED that the Report and Recommendation of the Magistrate Judge
(Doc. 18) is accepted.

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IT IS FURTHER ORDERED that the Clerk of the Court enter judgment denying

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and dismissing Petitioner’s Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C.

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§ 2254 (Doc. 1) with prejudice. The Clerk shall terminate this action.

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Rule 11 of the Rules Governing Section 2254 Cases in the United States District

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Courts requires the district court to “issue or a deny a certificate of appealability when it

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enters a final order adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254. A certificate

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of appealability should be denied because he has not made a substantial showing of the

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denial of a constitutional right and because jurists of reason would not find the Court’s

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rejection on constitutional grounds of Petitioner’s claims to be “debatable or wrong.” 28

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U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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Dated this 5th day of March, 2025.

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