Starr v. Baca et al

Filing 15

ORDER ADOPTING 13 Report and Recommendation, with the modifications discussd in this Order. Petitioners Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Doc. 1) is DISMISSED WITH PREJUDICE; and the Clerk of the Court shall enter judgment in this matter, and close its file. Signed by Judge Jennifer G Zipps on 11/4/13. (SMBE)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Stanley Wade Starr,

No. CV-11-00395-TUC-JGZ (JR)
Petitioner,

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v.

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ORDER

Antonio Baca, et al.,

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Respondents.

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On August 23, 2013, Magistrate Judge Jacqueline M. Rateau issued a Report and

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Recommendation (Doc. 13) in which she recommended dismissing Petitioner’s Petition

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under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody. (Doc.

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1.) The R&R provided that any party could file written objections within fourteen (14)

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days after being served with a copy of the R&R. On August 29, 2013, Respondents filed

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a “Limited Objection to Report and Recommendation” (Doc. 14) requesting that the

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Court adopt all but one paragraph of the R&R. (Doc. 14, p. 1.) Respondents’ objection

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states that “[a]lthough the Magistrate Judge correctly analyzes Petitioner’s claims, the

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first paragraph on page 6 lists claims that do not appear in his Petition for Writ of Habeas

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Corpus.” (Id.) Respondents’ limited objection requests that this Court correct page six

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and thereafter dismiss the Petition with prejudice.

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After an independent review of the record, the Court adopts the R&R, except as
indicated in this Order.
STANDARD OF REVIEW
The Court reviews de novo the objected-to portions of the R&R. 28 U.S.C. §

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636(b)(1); Fed. R. Civ. P. 72(b). The Court reviews for clear error the unobjected-to

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portions of the R&R. Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999);

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see also Conley v. Crabtree, 14 F.Supp.2d 1203, 1204 (D. Or. 1998).
PROCEDURAL AND FACTURAL BACKGROUND

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Petitioner’s Petition raises six claims for relief and contains one subheading

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entitled “5.2 Ineffective Assistance of Counsel” that itself lists six allegations of

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ineffectiveness.1 (Doc. 1.) In Claim One, Petitioner argues that the prosecutor violated

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his First Amendment rights to free speech and to peaceably assemble by selectively

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prosecuting him due to his affiliation with the “constitutionalists.” His claim also alleges

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grand jury manipulation due to this same alleged “constitutionalist” bias. Claim Two

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alleges that the prosecutor violated his Fourth Amendment right against unreasonable

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searches and seizures by filing an insufficient indictment without probable cause because

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the prosecutor withheld exculpatory evidence regarding “Notices of Invalid Liens.” In

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Claim Three, Petitioner argues that the state violated his Fifth Amendment Double

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Jeopardy rights by pursuing both criminal and civil sanctions against him. Claim Four

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alleges that the Prosecutor violated Petitioner’s Sixth Amendment rights to a speedy, fair,

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and public trial by denying him an informed jury and by failing to disclose exculpatory

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evidence.2

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Amendment right to be free from cruel and unusual punishment by imposing consecutive

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sentences.

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misconduct as violations of his Fourteenth Amendment rights to due process and equal

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protection.

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misconduct, and an alleged judicial conflict of interest and prejudice.

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Petitioner’s subheading claim “5.2 Ineffective Assistance of Counsel” lists: (a) failure to

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investigate Notice of Invalid Lien; (b) failure to question indictment; (c) failure to object

In Claim Five, Petitioner argues that the trial court violated his Eighth

Claim Six re-alleges Petitioner’s claims of judicial and prosecutorial

In particular, Petitioner raises his denial of a jury trial, prosecutorial
Finally,

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Paragraph one on page six, lines 1-12, of the R&R incorrectly lists Petitioner’s
claims and is replaced by the findings of this Order.
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Petitioner fails to fully articulate this argument. Rather, he puts his argument in
in parentheticals, i.e., (false document).
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to misleading evidence; (d) failure to address conspiracy charge; (e) failure to call any

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witnesses on Petitioner’s behalf; (f) failure to object to excessive sentencing; and (g)

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failure of appellate counsel to appeal appealable issues.
DISCUSSION

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The R&R addressed Petitioner’s six claims as well as his “5.2 Ineffective

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Assistance of Counsel” allegations, and no objections to the R&R’s legal findings were

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filed. Reviewing for clear error, this Court finds none. Accordingly,

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IT IS HEREBY ORDERED that:

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1. The Report and Recommendation (Doc. 13) is ACCEPTED AND ADOPTED as

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the findings of fact and conclusions of law of this Court, with the modifications discussed

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in this Order;

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2. Petitioner’s Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a
Person in State Custody (Doc. 1) is DISMISSED WITH PREJUDICE; and
3. The Clerk of the Court shall enter judgment in this matter, and close its file.
Dated this 4th day of November, 2013.

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