Ramos v. Ryan et al

Filing 14

ORDER ACCEPTING REPORT AND RECOMMENDATIONS. The Petition for Writ of Habeas Corpus is dismissed. A certificate of appealability is denied. The Clerk is directed to terminate this action. Signed by Senior Judge Frank R Zapata on 05/12/12. (LMF)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Petitioner,
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vs.
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Charles Ryan, Director of the Arizona )
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Department of Corrections; and the
Attorney General of the State of Arizona, )
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Respondents.
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Adam Bustos Ramos,

No. CV-10-00542-TUC-FRZ (BPV)
ORDER

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In October 2005, Adam Ramos was indicted on charges of aggravated driving under

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the influence of alcohol with a suspended license. He was convicted of the offenses in

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February 2007, after a two-day jury trial from which he was absent. He presently is serving

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concurrent ten-year prison sentences in an Arizona state prison.

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Ramos commenced this action by filing a petition for writ of habeas corpus pursuant

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to 28 U.S.C. § 2254. Doc. 1. The petition asserts three grounds for relief: denial of the right

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to be present at trial, violation of due process in connection with the sentencing, and

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ineffective assistance of counsel. Id. at 6-8. Respondents have filed an answer to the

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petition, and Petitioner has filed a reply. Docs. 10, 11.

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United States Magistrate Judge Bernardo Velasco has issued a report and

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recommendation (“R&R”) that the petition be dismissed. Doc. 12. Petitioner has filed an

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objection. Doc. 13. For reasons that follow, the Court will accept the R&R and dismiss the

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petition.

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I.

Standard of Review.

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Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

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28 U.S.C. § 2254(d), this Court may grant Petitioner habeas relief only where he shows that

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the state court’s decision (1) was contrary to, or involved an objectively unreasonable

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application of, clearly established federal law as determined by the United States Supreme

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Court, or (2) was based on an unreasonable determination of the facts in light of the evidence

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presented in state court. The AEDPA “reflects the view that habeas corpus is a ‘guard

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against extreme malfunctions in the state criminal justice systems,’ not a substitute for

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ordinary correction through appeal.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011)

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(citation omitted). The Court therefore must “avoid applying [the] AEDPA in a manner that

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displays ‘a lack of deference to the state court’s determination and an improper intervention

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in state criminal processes.’” John-Charles v. California, 646 F.3d 1243, 1253 (9th Cir.

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2011) (quoting Harrington, 131 S. Ct. at 787).

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With respect to the R&R, the parties may file written objections to the Magistrate

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Judge’s proposed findings and recommendations. The Court must undertake de novo review

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of those portions of the R&R to which specific objections are made. 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); 28 U.S.C. § 636(b)(1).

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II.

Discussion.

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The R&R thoroughly addresses the underlying state court proceedings and decisions

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and the grounds for relief raised in the habeas petition. Doc. 12. The Magistrate Judge finds

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each ground for relief to be procedurally defaulted. The first ground – that is, the alleged

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denial of the right to be present at trial – was raised before the Arizona court of appeals but

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dismissed for lack of jurisdiction. Id. at 9-12. The alleged due process violation asserted in

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ground two is barred under the state criminal rules of procedure because Petitioner failed to

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raise the claim on direct appeal. Id. at 12-16. Petitioner failed to exhaust in state court the

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ineffective assistance of counsel claim asserted in ground three, and the claim is now

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procedurally defaulted. Id. at 17-19. Because Petitioner presents no cause for the default and

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otherwise has not shown that a fundamental miscarriage of justice would occur if federal

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review is barred, the Magistrate Judge recommends that all three grounds for relief be

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dismissed. Id. at 12, 16, 19. With respect to the discrimination and equal protection claims

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asserted by Petitioner for the first time in his reply brief, the Magistrate Judge finds those

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claims to be untimely and otherwise not cognizable. Id. at 20.

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Petitioner’s objection, even when liberally construed in his favor, is nothing more than

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a general objection to the R&R as a whole. Petitioner challenges none of the specific factual

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and legal findings made by the Magistrate Judge. Instead, he asserts that issues concerning

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blood alcohol tests should have been raised before trial, that his counsel told him in 2005 that

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the criminal case had been dismissed, that he was deported to Mexico under a different name,

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that counsel was to have the trial postponed so he would not be tried in absentia, and that he

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received ineffective assistance of counsel in connection with his direct appeal. Doc. 13.

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These assertions, some of which previously were made in the habeas petition, do not

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challenge or otherwise address the Magistrate Judge’s findings and recommendations that

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Petitioner’s grounds for habeas relief be dismissed as procedurally defaulted.

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The Court will deem Petitioner’s general objection to the R&R ineffective. This

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ruling comports with the clear language of Rule 72(b). Under that rule, the district judge

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must determine de novo those portions of the R&R that have been “properly objected to.”

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Fed. R. Civ. P. 72(b)(3). A proper objection under Rule 72(b) requires the petitioner to make

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not a general objection to the R&R as a whole, but “specific written objections to the

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proposed findings and recommendations.” Fed. R. Civ. P. 72(b)(2) (emphasis added).

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Deeming the general objection ineffective also is consistent with the fundamental

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congressional policy underlying the Federal Magistrates Act, 28 U.S.C. § 631-39, that is,

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“to improve access to the federal courts and aid the efficient administration of justice[.]”

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Thomas v. Arn, 474 U.S. 140, 145 (1985). In passing the Act, “‘Congress intended

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magistrates to play an integral and important role in the federal judicial system.’” United

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States v. Reyna-Tapia, 328 F.3d 1114, 1116 (9th Cir. 2003) (citation omitted). Magistrates

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fulfill that duty in large part by submitting to district judges “proposed findings of fact

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and recommendations for the disposition” of motions and habeas petitions. 28 U.S.C.

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§ 636(b)(1)(B).

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In short, an obvious purpose of Rule 72(b) and the Magistrates Act, 28 U.S.C. § 636,

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“is judicial economy – to permit magistrate judges to hear and resolve matters not

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objectionable to the parties.” Berger v. Ryan, No. CV-09-2689-PHX-DGC (MHB), 2011

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WL 3875853, at *2 (D. Ariz. Sept. 2, 2011). “This efficiency would be lost if parties were

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permitted to invoke the de novo review of the district court merely by interposing general,

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non-specific objections to the magistrate’s R&R.” Sullivan v. Schriro, No. CV-04-1517-

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PHX-DGC, 2006 WL 1516005, at *1 (D. Ariz. May 30, 2006). Because complete de novo

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review of an R&R defeats the efficiencies intended by Congress, Petitioner’s “general

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objection ‘has the same effect as would a failure to object.’” Berger, 2011 WL 3875853,

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at *2 (citation omitted); see also Thomas, 474 U.S. at 149 (no review at all is required for

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“any issue that is not the subject of an objection”); Reyna-Tapia, 328 F.3d at 1121 (same).

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III.

Conclusion.

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Petitioner has not shown, and the Court does not otherwise find, that the Magistrate

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Judge erred, either factually or legally, in finding that the grounds for relief asserted in the

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habeas petition are procedurally defaulted and therefore should be dismissed. The Court will

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accept the R&R and dismiss the petition. See Sullivan, 2006 WL 1516005, at *2 (accepting

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R&R without de novo review and deeming objection ineffective where it did not challenge

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any specific portion of the R&R but instead reasserted arguments made in the petition).

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Petitioner’s request for a certificate of appealability (Doc. 13 at 4) will be denied because

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he has made no substantial showing of the denial of a constitutional right. See 28 U.S.C.

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§ 2253(c)(2); Berger, 2011 WL 3875853, at *6.

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IT IS ORDERED:

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1.

The Magistrate Judge’s report and recommendation (Doc. 12) is accepted.

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2.

The petition for writ of habeas corpus (Doc. 1) is dismissed.

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3.

A certificate of appealability is denied.

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4.

The Clerk is directed to terminate this action.

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DATED this 15th day of May, 2012.

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