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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Alfonso Fragoso,
Petitioner,

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vs.

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Charles Riening, et al.,
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Respondents.
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No. 09-CV-239-TUC-AWT
ORDER

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On April 14, 2010, Magistrate Judge Estrada issued a Report and Recommendation

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(R&R) (Doc. 8) in which he recommended that the Court deny part of the petition and

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dismiss the remainder of Petitioner’s Petition under 28 U.S.C. § 2254 for a Writ of Habeas

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Corpus by a Person in State Custody. The Petitioner did not object to the Report and

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Recommendation.

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Under 28 U.S.C. § 636(b)(1), this Court “may accept, reject, or modify, in whole or

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in part, the findings or recommendations made by the magistrate.” Although this Court is not

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required to review the Magistrate Judge’s R&R, because there were no objections to the

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R&R, this Court has, nonetheless, reviewed the magistrate judge’s R&R. See United States

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v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (discussing the standard of review for district

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courts when reviewing an R&R when no objections are made).

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Accordingly, IT IS ORDERED:

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The Magistrate’s R&R (Doc. 8) is adopted.

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The Ground I claim of due process violation is dismissed as procedurally

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defaulted.
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Alternatively, the entire Ground I claim is dismissed as procedurally barred
under the independent and adequate state ground doctrine.

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All remaining claims–the Ground I claim based on Leocal v. Ashcroft, 543

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U.S. 1 (2004), and the Ground II claim of ineffective assistance of counsel–are

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dismissed on the merits.

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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.

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