Pino #212900 v. Ryan et al

Filing 38

ORDER ADOPTING REPORT AND RECOMMENDATION - Accordingly, IT IS ORDERED that Magistrate Judge Burns's Report and Recommendation (Doc. 34 ) is ACCEPTED and ADOPTED as the Order of this Court. IT IS FURTHER ORDERED that the Amended Petition for W rit of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 10 ) is DENIED and DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, a Certificate of Appealability and leave to proc eed in forma pauperis on appeal are DENIED because dismissal of the Petitioner is justified by a plain procedural bar and reasonable jurists would not find the ruling debatable. IT IS FINALLY ORDERED that the Clerk of the Court shall terminate this action and enter judgment accordingly. (See document for complete details). Signed by Judge Diane J Humetewa on 11/14/19. (SLQ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jesus Eduardo Pino,
Petitioner,

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No. CV-17-08021-PCT-DJH
ORDER

v.
Attorney General of the State of Arizona, et
al.,

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Respondents.

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Pending before the Court is Petitioner’s Amended Petition for Writ of Habeas

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Corpus pursuant to 28 U.S.C. § 2254 (Doc. 10) to which Respondents filed a Limited

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Answer (Doc. 19). Following a thorough analysis, Magistrate Judge Burns recommended

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denial of and dismissal with prejudice of the Amended Petition (the “R&R”). (Doc. 34).

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Respondents have not filed an objection. Petitioner was given an extension of time to file

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an objection until November 8, 2019 (Doc. 36) and he filed one on that date (Doc. 37).

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I.

Background

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Petitioner was tried and found guilty of two counts of aggravated assault,

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disorderly conduct, and misconduct involving weapons. He was sentenced to multiple

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terms of imprisonment for these offenses, the longest of which is 11.25 years. In his

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Amended Petition, Petitioner raises four grounds for relief: first, he contends that he was

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denied a speedy trial, in violation of the Sixth Amendment; second, that he was denied a

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right to talk to any witnesses, in violation of the Sixth Amendment Confrontation Clause;
third, that his trial counsel provided ineffective assistance of counsel; and fourth, that the
trial judge was disqualified because she was “under indictment for a case she had
overseen prior to [Petitioner’s].” (Id. at 5). After consideration of the issues, Judge
Burns concluded that Grounds One through Three were procedurally defaulted from

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federal habeas corpus review without an excuse for the default. (Doc. 34 at 14). Judge

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Burns noted that Ground Four had already been dismissed in the court’s screening order

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for failure to allege a violation of federal laws or Petitioner’s federal Constitutional

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rights. Accordingly, Judge Burns recommends the Petition be denied and dismissed with

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prejudice. (Id.).

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II.

Standard of Review

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This 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.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en

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banc) (same). Further, this Court “may accept, reject, or modify, in whole or in part, the

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findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C);

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Fed. R. Civ. P. 72(b)(3). At the same time, however, the relevant provision of the

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Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C), “does not on its face require any

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review at all. . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474

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U.S. 140, 149 (1989); see also Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir.
2005) (“Of course, de novo review of a R&R is only required when an objection is made
to the R&R”). Likewise, it is well-settled that “‘failure to object to a magistrate judge’s
factual findings waives the right to challenge those findings[.]’” Bastidas v. Chappell,
791 F.3d 1155, 1159 (9th Cir. 2015) (quoting Miranda v. Anchondo, 684 F.3d 844, 848
(9th Cir. 2012) (internal quotation marks omitted) (footnote omitted)).
III.

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

that the failure to timely do so “may result in the acceptance of the Report and
Recommendation by the district court without further review.” (Id.) (citing United States
v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc)). As noted, Respondents
have not filed an objection.

After being granted an extension of time to filed an

objection, Petitioner filed an Objection that summarizes and reiterates some of the
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grounds in his Amended Petition but he does not object to the Magistrate Judge’s

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findings and recommendations.

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Absent any objections, the Court is not required to review the findings and

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recommendations in the R&R.

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that the relevant provision of the Federal Magistrates Act, 28 U.S.C. § 636(b)(1), “does

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not on its face require any review at all . . . of any issue that is not the subject of an

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objection.”); Reyna-Tapia, 328 F.3d at 1121 (same); Fed.R.Civ.P. 72(b)(3) (“The district

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

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properly objected to.”).

See Thomas v. Arn, 474 U.S. 140, 149 (1989) (noting

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Nonetheless, the Court has reviewed Judge Burns’ comprehensive and well-

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reasoned R&R and agrees with its findings and recommendations. The Court will,

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therefore, accept the R&R and dismiss the Petition. See 28 U.S.C. § 636(b)(1) (“A judge

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of the court may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.”); Fed.R.Civ.P. 72(b)(3) (same).

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Accordingly, IT IS ORDERED that Magistrate Judge Burns’s Report and
Recommendation (Doc. 34) is ACCEPTED and ADOPTED as the Order of this Court.
IT IS FURTHER ORDERED that the Amended Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254 (Doc. 10) is DENIED and DISMISSED WITH
PREJUDICE.
IT IS FURTHER ORDERED that 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 Petitioner is justified by a plain
procedural bar and reasonable jurists would not find the ruling debatable.
IT IS FINALLY ORDERED that the Clerk of the Court shall terminate this
action and enter judgment accordingly.
Dated this 14th day of November, 2019.

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Honorable Diane J. Humetewa
United States District Judge

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