Pinzon v. Ryan et al

Filing 16

ORDER ACCEPTING AND ADOPTING 12 Magistrate Judge Bade's Report and Recommendation. The Amended Petition for Writ of Habeas Corpus (Doc. 4 ) is DENIED and dismissed with prejudice. A Certificate of Appealability and leave to proceed in for ma pauperis are DENIED because the dismissal of the Amended Petition is justified by a plain procedural bar and reasonable jurists could not find the procedural ruling debatable. Clerk of Court shall terminate this action and enter judgment accordingly. Signed by Judge Diane J Humetewa on 6/20/16. (EJA)

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1 NOT FOR PUBLICATION 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jose Manuel Pinzon, Petitioner, 10 11 ORDER v. 12 No. CV-14-08244-PCT-DJH Charles L Ryan, et al., 13 Respondents. 14 15 This matter is before the Court on pro se Petitioner’s Amended Petition for Writ 16 of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 4) and the Report and 17 Recommendation (“R & R”) of United States Magistrate Judge Bridget S. Bade (Doc. 18 12). The R & R includes an accurate and complete recitation of the necessary factual and 19 procedural background. (Doc. 12 at 1:21-5:12). The R & R also correctly sets forth the 20 legal principles governing the threshold issue of whether a petitioner has exhausted 21 available state court remedies. (Id. at 5:13-7:26). After a thorough and sound analysis, 22 the Magistrate Judge found that Petitioner’s claims were procedurally barred, and that 23 Petitioner did not establish a basis to overcome that bar. 24 recommends denial of the Petition. Petitioner filed timely objections (Doc. 13). The 25 Court now rules as follows. 26 .... 27 .... 28 .... The Magistrate Judge thus 1 I. Standard of Review 2 The Court must “make a de novo determination of those portions of the report or 3 specified proposed findings or recommendations to which” a Petitioner objects. 28 4 U.S.C. § 636(b)(1)(C); see also Fed.R.Civ.P. 72(b)(3) (“The district judge must 5 determine de novo any part of the magistrate judge’s disposition that has been properly 6 objected to.”); U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (same). 7 Conversely, the relevant provision of the Federal Magistrates Act, 28 U.S.C. § 8 636(b)(1)(C), “does not on its face require any review at all . . . of any issue that is not 9 the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1989) (emphasis added); 10 see also Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005) (“Of course, de novo 11 review of a R & R is only required when an objection is made to the R & R, [Reyna– 12 Tapia,] 328 F.3d [at] 1121 . . . (“Neither the Constitution nor the [Federal Magistrates 13 Act] requires a district judge to review, de novo, findings and recommendations that the 14 parties themselves accept as correct”)[.]”) Likewise, it is well-settled that “’failure to 15 object to a magistrate judge's factual findings waives the right to challenge those 16 findings[.]’” Bastidas v. Chappell, 791 F.3d 1155, 1159 (9th Cir. 2015) (quoting Miranda 17 v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (internal quotation marks omitted) 18 (footnote omitted)). 19 II. Analysis 20 Although designated as “objections,” Petitioner is not actually objecting to any of 21 the R & R’s factual findings or legal conclusions. Thus, as to the factual findings, 22 Petitioner has waived any objection thereto. See Bastidas, 791 F.3d at 1159 (citations 23 omitted). Petitioner’s objections are conspicuously silent on the determinative issue of 24 issue of procedural default. In fact, it is readily apparent that, with one exception which 25 the Court will address next, Petitioner is simply reasserting most of the grounds for relief 26 found in his amended petition. Further, instead of objecting to any aspect of the R & R, 27 Petitioner is seeking to have this Court address the merits, despite the Magistrate Judge’s 28 findings of procedural default and failure to overcome that bar. -2- Hence, because 1 Petitioner makes no objections at all to the R & R, this Court is not required to review the 2 R & R. Nonetheless, the Court has reviewed the R & R and agrees with its sounding 3 reasoning, findings and recommendations. The Court will, therefore, accept the R & R 4 and deny the Petition. See 28 U.S.C. § 636(b)(1)(C) (“A judge of the court may accept, 5 reject, or modify, in whole or in part, the findings or recommendations made by the 6 magistrate judge.”); Fed.R.Civ.P. 72(b)(3) (same). 7 The Court recognizes, as just alluded to, that Petitioner’s objections seem to 8 include a new claim for habeas relief. Petitioner contends that his “pretrial/trial counsel . 9 . . fail[ed] to provide him with a reasonable assessment of the probable outcome of his 10 trial[.]” (Doc. 13 at 3). Speculating and with the advantage of hindsight, Petitioner 11 further claims that had his counsel provided him with the foregoing, Petitioner “would 12 have accepted the State’s plea agreement.” (Id.) (citation omitted). Petitioner’s amended 13 petition does include several claims of ineffective assistance of counsel, but not this 14 particular one. This new claim for habeas relief was, understandably, not addressed in 15 the R & R. Because Petitioner is improperly raising this new unexhausted claim in his 16 objections, the Court gives no credence to such a claim and adheres to its view that the 17 Magistrate Judge correctly recommended denial of this amended petition. 18 III. Conclusion 19 Accordingly, 20 IT IS HEREBY ORDERED that that Magistrate Judge Bade’s R & R (Doc. 12) 21 is accepted and adopted as an Order of this Court. 22 23 IT IS FURTHER ORDERED that the Amended Petition for Writ of Habeas Corpus (Doc. 4) is DENIED and dismissed with prejudice. 24 IT IS FURTHER ORDERED that a Certificate of Appealability and leave to 25 proceed in forma pauperis are DENIED because the dismissal of the Amended Petition 26 is justified by a plain procedural bar and reasonable jurists could not find the procedural 27 ruling debatable. 28 .... -3- 1 2 3 IT IS FINALLY ORDERED that the Clerk of Court shall terminate this action and enter judgment accordingly. Dated this 20th day of June, 2016. 4 5 6 7 Honorable Diane J. Humetewa United States District Judge 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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