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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NOT FOR PUBLICATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jose Manuel Pinzon,
Petitioner,

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ORDER

v.

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No. CV-14-08244-PCT-DJH

Charles L Ryan, et al.,

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Respondents.

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This matter is before the Court on pro se Petitioner’s Amended Petition for Writ

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of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 4) and the Report and

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Recommendation (“R & R”) of United States Magistrate Judge Bridget S. Bade (Doc.

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12). The R & R includes an accurate and complete recitation of the necessary factual and

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procedural background. (Doc. 12 at 1:21-5:12). The R & R also correctly sets forth the

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legal principles governing the threshold issue of whether a petitioner has exhausted

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available state court remedies. (Id. at 5:13-7:26). After a thorough and sound analysis,

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the Magistrate Judge found that Petitioner’s claims were procedurally barred, and that

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Petitioner did not establish a basis to overcome that bar.

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recommends denial of the Petition. Petitioner filed timely objections (Doc. 13). The

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Court now rules as follows.

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The Magistrate Judge thus

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I. Standard of Review

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The Court must “make a de novo determination of those portions of the report or

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specified proposed findings or recommendations to which” a Petitioner objects. 28

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U.S.C. § 636(b)(1)(C); see also Fed.R.Civ.P. 72(b)(3) (“The district judge must

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determine de novo any part of the magistrate judge’s disposition that has been properly

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objected to.”); U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (same).

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Conversely, the relevant provision of the Federal Magistrates Act, 28 U.S.C. §

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

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the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1989) (emphasis added);

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see also Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005) (“Of course, de novo

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review of a R & R is only required when an objection is made to the R & R, [Reyna–

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Tapia,] 328 F.3d [at] 1121 . . . (“Neither the Constitution nor the [Federal Magistrates

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Act] requires a district judge to review, de novo, findings and recommendations that the

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parties themselves accept as correct”)[.]”) Likewise, it is well-settled that “’failure to

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object to a magistrate judge's factual findings waives the right to challenge those

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findings[.]’” Bastidas v. Chappell, 791 F.3d 1155, 1159 (9th Cir. 2015) (quoting Miranda

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v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (internal quotation marks omitted)

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(footnote omitted)).

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II. Analysis

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Although designated as “objections,” Petitioner is not actually objecting to any of

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the R & R’s factual findings or legal conclusions. Thus, as to the factual findings,

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Petitioner has waived any objection thereto. See Bastidas, 791 F.3d at 1159 (citations

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omitted). Petitioner’s objections are conspicuously silent on the determinative issue of

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issue of procedural default. In fact, it is readily apparent that, with one exception which

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the Court will address next, Petitioner is simply reasserting most of the grounds for relief

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found in his amended petition. Further, instead of objecting to any aspect of the R & R,

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Petitioner is seeking to have this Court address the merits, despite the Magistrate Judge’s

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findings of procedural default and failure to overcome that bar.

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Hence, because

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Petitioner makes no objections at all to the R & R, this Court is not required to review the

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

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reasoning, findings and recommendations. The Court will, therefore, accept the R & R

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and deny the Petition. See 28 U.S.C. § 636(b)(1)(C) (“A judge of the court may accept,

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reject, or modify, in whole or in part, the findings or recommendations made by the

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magistrate judge.”); Fed.R.Civ.P. 72(b)(3) (same).

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The Court recognizes, as just alluded to, that Petitioner’s objections seem to

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include a new claim for habeas relief. Petitioner contends that his “pretrial/trial counsel .

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. . fail[ed] to provide him with a reasonable assessment of the probable outcome of his

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trial[.]” (Doc. 13 at 3). Speculating and with the advantage of hindsight, Petitioner

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further claims that had his counsel provided him with the foregoing, Petitioner “would

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have accepted the State’s plea agreement.” (Id.) (citation omitted). Petitioner’s amended

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petition does include several claims of ineffective assistance of counsel, but not this

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particular one. This new claim for habeas relief was, understandably, not addressed in

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the R & R. Because Petitioner is improperly raising this new unexhausted claim in his

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objections, the Court gives no credence to such a claim and adheres to its view that the

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Magistrate Judge correctly recommended denial of this amended petition.

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III. Conclusion

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Accordingly,

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IT IS HEREBY ORDERED that that Magistrate Judge Bade’s R & R (Doc. 12)

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is accepted and adopted as an Order of this Court.

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IT IS FURTHER ORDERED that the Amended Petition for Writ of Habeas
Corpus (Doc. 4) is DENIED and dismissed with prejudice.

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IT IS FURTHER ORDERED that a Certificate of Appealability and leave to

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proceed in forma pauperis are DENIED because the dismissal of the Amended Petition

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is justified by a plain procedural bar and reasonable jurists could not find the procedural

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ruling debatable.

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IT IS FINALLY ORDERED that the Clerk of Court shall terminate this action
and enter judgment accordingly.
Dated this 20th day of June, 2016.

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Honorable Diane J. Humetewa
United States District Judge

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