Fragoso v. Riening et al

Filing 9

ORDER adopting re 8 Report and Recommendations. The Clerk is directed to close the case and enter judgment denying in part and dismissing in part Petitioners Petition for Writ of Habeas Corpus. Signed by Judge A Wallace Tashima on 4/20/11. (See attached PDF for complete information).(KAD)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Alfonso Fragoso, Petitioner, 10 11 vs. 12 Charles Riening, et al., 13 Respondents. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. 09-CV-239-TUC-AWT ORDER 15 16 17 On April 14, 2010, Magistrate Judge Estrada issued a Report and Recommendation 18 (R&R) (Doc. 8) in which he recommended that the Court deny part of the petition and 19 dismiss the remainder of Petitioner’s Petition under 28 U.S.C. § 2254 for a Writ of Habeas 20 Corpus by a Person in State Custody. The Petitioner did not object to the Report and 21 Recommendation. 22 Under 28 U.S.C. § 636(b)(1), this Court “may accept, reject, or modify, in whole or 23 in part, the findings or recommendations made by the magistrate.” Although this Court is not 24 required to review the Magistrate Judge’s R&R, because there were no objections to the 25 R&R, this Court has, nonetheless, reviewed the magistrate judge’s R&R. See United States 26 v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (discussing the standard of review for district 27 courts when reviewing an R&R when no objections are made). 28 Accordingly, IT IS ORDERED: 1 1. The Magistrate’s R&R (Doc. 8) is adopted. 2 2. The Ground I claim of due process violation is dismissed as procedurally 3 4 defaulted. 3. 5 6 Alternatively, the entire Ground I claim is dismissed as procedurally barred under the independent and adequate state ground doctrine. 4. All remaining claims–the Ground I claim based on Leocal v. Ashcroft, 543 7 U.S. 1 (2004), and the Ground II claim of ineffective assistance of counsel–are 8 dismissed on the merits. 9 10 11 5. The Clerk is directed to close the case and enter judgment denying in part and dismissing in part Petitioner’s Petition for Writ of Habeas Corpus. DATED this 20th day of April, 2011. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2-

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