Collier v. Broadhead et al

Filing 19

ORDER: Magistrate Judge Willett's Report and Recommendation (Doc. 17 ) is accepted and adopted as the order of this Court. The Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1 ) is denied and dismissed with preju dice. Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied because dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable. The Clerk of Court shall terminate this action and enter judgment accordingly. Signed by Judge Diane J Humetewa on 04/18/16. (GAR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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David Michael Collier,
Petitioner,

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ORDER

v.

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No. CV-14-8227-PCT-DJH

Lyle Broadhead, et al.,

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Respondents.

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This matter is before the Court on Petitioner’s Petition for Writ of Habeas Corpus

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(the "Petition") pursuant to 28 U.S.C. § 2254 (Doc. 1) filed on November 24, 2014, and

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the Report and Recommendation (“R&R”) (Doc. 17) issued by United States Magistrate

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Judge Eileen S. Willett on February 24, 2016. Pursuant to a plea agreement, Petitioner

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pled guilty on October 15, 2013 to one count of Aggravated Assault Causing Physical

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Injury Per Domestic Violence, a class 6 felony under Arizona law, and one count of

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Resisting Arrest, Passive Resistance, a class 1 misdemeanor. (Doc. 17 at 1-2). Petitioner

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was sentenced in February 2014 to a two-year term of supervised probation. (Doc. 17 at

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2). A few months later, the trial court determined Petitioner violated the terms of his

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probation and revoked it. (Id.). The trial court then sentenced Petitioner to one year of

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incarceration for the assault conviction and 66 days for the resisting arrest conviction.

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(Id.).

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challenging the sentence. (Doc. 17 at 2).

Petitioner did not file a petition for post-conviction relief or a direct appeal

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Petitioner raised four grounds for relief in the Petition, including that he was

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denied counsel in violation of his due process and equal protection rights, that the trial

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court lacked jurisdiction, that he was denied access to a law library and the courts, and

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that other due process and equal protection rights were violated. (Doc. 17 at 6). After

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consideration and analysis of the issues, Judge Willett concluded that Petitioner, by

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failing to file a petition for post-conviction in State court, failed to exhaust his state court

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remedies and that he is now barred from doing so. (Id. at 6-10). Accordingly, Judge

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Willett recommends that the Petition be denied and dismissed with prejudice. (Id. at 10).

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Judge Willett advised the parties that they had fourteen days to file objections and

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that the failure to file timely objections "may result in the acceptance of the Report and

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Recommendation by the District Court without further review." (Doc. 17 at 11) (citing

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United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)). The parties have not

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filed objections and the time to do so has expired. Absent any objections, the Court is not

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required to review the findings and recommendations in the R&R. See Thomas v. Arn,

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474 U.S. 140, 149 (1989) (The relevant provision of the Federal Magistrates Act, 28

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U.S.C. § 636(b)(1)(C), “does not on its face require any review at all . . . of any issue that

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is not the subject of an objection.”); Reyna-Tapia, 328 F.3d at 1121 (same); Fed.R.Civ.P.

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72(b)(3) (“The district judge must determine de novo any part of the magistrate judge’s

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disposition that has been properly objected to.”).

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Nonetheless, the Court has reviewed the R&R and agrees with its findings and

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recommendations. The Court will, therefore, accept the R&R and deny the Petition. See

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28 U.S.C. § 636(b)(1)(C) (“A judge of the court may accept, reject, or modify, in whole

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or in part, the findings or recommendations made by the magistrate judge.”);

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Fed.R.Civ.P. 72(b)(3) (same).

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Accordingly,

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IT IS ORDERED that Magistrate Judge Willett's R&R (Doc. 17) is accepted and

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adopted as the order of this Court.
IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus

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pursuant to 28 U.S.C. § 2254 (Doc. 1) is denied and dismissed with prejudice.

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IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing

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Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis

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on appeal are denied because 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.

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IT IS FURTHER ORDERED that the Clerk of Court shall terminate this action
and enter judgment accordingly.
Dated this 18th day of April, 2016.

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Honorable Diane J. Humetewa
United States District Judge

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