Price v. Ryan et al

Filing 30

ORDER adopting in whole the 27 Report and Recommendation submitted by Judge Metcalf in this matter. Grounds One and Four of the Petition are dismissed with prejudice; Grounds Two and Three of the Petition are denied for lack of merit; the 1 Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. Section 2254 is denied and dismissed. A certificate of appealability and leave to proceed in forma pauperis on appeal is denied, because the Court finds that dismissal of the Petition is justified by a plain procedural bar, and reasonable jurists would not find the ruling debatable. Signed by Judge John J Tuchi on 01/28/2016. (ATD)

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1 NOT FOR PUBLICATION 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 James Lee Price, Petitioner, 10 11 12 No. CV-14-08219-PCT-JJT ORDER v. Charles L. Ryan, et al., Respondents. 13 14 At issue is the Report and Recommendation (“R&R”) (Doc. 27) submitted by 15 United States Magistrate Judge James F. Metcalf recommending that the Court dismiss 16 the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. Section 2254 (Doc. 1), to 17 which Petitioner James Lee Price, Jr. has filed an Objection (Doc. 28) and Respondents 18 Charles L. Ryan and the Attorney General of the State of Arizona have filed a Response 19 thereto (Doc. 29). 20 In the 56-page R&R, Judge Metcalf thoroughly and exhaustively analyzed and 21 addressed the four grounds for relief raised in the Petition, and provided ample support 22 for his recommendation that this Court dismiss it. Because the Court will adopt the R&R 23 in its entirety, including Judge Metcalf’s underlying reasoning, it will not repeat in detail 24 the reasoning for the recommendation. 25 The R&R recommends that this Court dismiss with prejudice Grounds One 26 (admission of other act evidence at trial) and Four (ineffective assistance of counsel in 27 advising Petitioner regarding plea offers) of the Petition because both of those grounds 28 are procedurally defaulted and Petitioner has failed to show cause or prejudice justifying 1 an exception to that bar. While Judge Metcalf found that Petitioner’s Ground Two 2 (Brady violation) and Ground Three (ineffective assistance of trial counsel re: discovery 3 of witness impeachment evidence) were exhausted at the state court level and therefore 4 were not procedurally barred, he recommended that this Court deny both grounds as 5 lacking in merit. 6 What Petitioner filed as an Objection to the R&R (Doc. 28) did not constitute 7 objections. For the most part, he simply stated that he objected to Magistrate Judge 8 Metcalf’s recommendations, without stating any reason why. See, e.g., Objection at p. 2. 9 Where Petitioner did purport to offer a reason for his objections, he simply stated, “see 10 Supplemental Reply (Doc. 26),” a document Petitioner filed prior to the R&R and which 11 Judge Metcalf had already considered when he drafted the R&R. 12 identifies no error in the R&R’s analysis and is of no help. The Objection 13 Where a Petitioner fails to object to an R&R, the Court is free to accept the R&R 14 without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 15 2003). Judge Metcalf so warned Petitioner in the R&R. (Doc. 27 at pp. 55-56). Where, 16 as here, Petitioner’s objections point to not a single flaw in the R&R’s analysis, they have 17 the same effect as would a complete failure to object. Warling v. Ryan, 2013 WL 18 5276367 at *2 (D. Ariz. Sept. 19, 2013). Though pursuant to the above law the Court is 19 free to accept the R&R without more, it has nonetheless conducted a review of the 20 Petition in this matter (Doc. 1), Respondents’ Response thereto (Doc. 9) and 21 Supplemental Answer (Doc. 25), Petitioner’s Reply (Doc. 10) and Supplemental Reply 22 (Doc. 26), with all exhibits, and the R&R (Doc. 27). Upon that review, the Court 23 concludes that Judge Metcalf’s recommendations are well taken and correctly apply the 24 law throughout. The Court adopts the reasoning in the R&R in whole. 25 The R&R was thorough, exhaustive and even-handed, demonstrating in many 26 places where Respondents’ arguments were legally incorrect or their proffered evidence 27 did not support the legal conclusions they urged. For example, in analyzing Ground Two 28 of Petitioner’s claim for habeas relief on the merits, Judge Metcalf concluded, over -2- 1 Respondents’ argument, that the state prosecutor suppressed information at trial that 2 indeed impeached one of the investigating officers who was a witness at trial by showing 3 he possessed or may possess a bias for being willing to break rules to obtain convictions. 4 But Judge Metcalf also concluded that the Arizona Court of Appeals did not make an 5 unreasonable determination when it found that no Brady violation had occurred because 6 Petitioner could not show on the facts that suppression of the impeaching information 7 caused prejudice. This conclusion was correct. The record before the Arizona Court of 8 Appeals was replete, as it is before this Court on habeas review, with evidence that was 9 completely independent of the potentially impeachable officer, and from which the jury 10 could and did find Petitioner guilty. This included multiple items of drug trafficking 11 indicia--methamphetamine, a scale, packaging material, and pay-owe ledgers including 12 names and drug and dollar amounts seized as evidence, as well as Petitioner’s recorded 13 admission of guilt. The remainder of the R&R was consistently thorough and 14 demonstrated consideration of all relevant law and components of the record on review. 15 Because the Court will dismiss with prejudice Ground Four as procedurally barred 16 without cause to excuse the default, it need not consider Judge Metcalf’s 17 recommendation that Ground Four be denied on the merits, for lack of merit. However, 18 were a ruling required on that issue, the Court would also conclude that Judge Metcalf’s 19 analysis of Ground Four on the merits was correct, as Petitioner failed to demonstrate 20 ineffective assistance of counsel regarding the plea offer. 21 22 23 24 For the reasons set forth in the R&R, IT IS ORDERED: 1) adopting in whole the Report and Recommendation submitted by Judge Metcalf in this matter (Doc. 27); 25 2) dismissing with prejudice Grounds One and Four of the Petition; 26 3) denying Grounds Two and Three of the Petition for lack of merit; 27 2) denying the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 28 Section 2254 (Doc. 1) and dismissing the matter; and -3- 1 3) denying a certificate of appealability and leave to proceed in forma 2 pauperis on appeal, because the Court finds that dismissal of the Petition is justified by a 3 plain procedural bar, and reasonable jurists would not find the ruling debatable. 4 Dated this 28th day of January, 2016. 5 6 Honorable John J. Tuchi United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-

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