Harden v. Ryan et al

Filing 26

ORDER ADOPTING REPORT AND RECOMMENDATIONS 19 and Denying Petitioner's Amended Petition for Writ of Habeas Corpus (Doc. 5 ). Petitioner's Amended Petition for Writ of Habeas Corpus is dismissed with prejudice. The Clerk of the Court shall enter judgment accordingly and close this case. This Court declines to issue a Certificate of Appealability. Signed by Judge Raner C Collins on 5/6/13. (KAH)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Robert Taylor Harden,
Petitioner,

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vs.

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Charles Ryan, et al.,
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Respondents.
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No. 11-CV-694-TUC-RCC (LAB)
ORDER

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Before the Court is the December 17, 2012, Report and Recommendation (R&R) from

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Magistrate Judge Leslie A. Bowman (Doc. 19) recommending that this court deny

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Petitioner’s Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc.

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5). Petitioner timely filed objections to the R&R (Doc. 21). For the following reasons, this

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court will adopt the R&R.

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I.

BACKGROUND

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The factual and procedural background in this case is thoroughly detailed in

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Magistrate Judge Bowman’s R & R (Doc. 19). This Court fully incorporates by reference

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the “Summary of the Case” section of the R & R into this Order. As such, the Court will not

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repeat that entire discussion. Rather, the relevant facts and law will be addressed only to the

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extent necessary to resolve the specific objections filed by the Petitioner.

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II.

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LEGAL STANDARD
The duties of the district court in connection with a R&R are set forth in Rule 72 of

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the Federal Rules of Civil Procedure and 28 U .S.C. § 636(b)(1). The district court may

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“accept, reject, or modify the recommended disposition; receive further evidence; or return

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the matter to the magistrate judge with instructions. FED.R.CIV.P. 72(b)(3); 28 U.S.C. §

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636(b)(1). The Court will not disturb a Magistrate Judge's Order unless his factual findings

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are clearly erroneous or his legal conclusions are contrary to law. 28 U.S.C. § 636(b)(1)(A).

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“[T]he magistrate judge's decision ... is entitled to great deference by the district court.”

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United States v. Abonce-Barrera, 257 F.3d 959, 969 (9th Cir.2001). Where the parties object

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to a R&R, “[a] judge of the [district] court shall make a de novo determination of those

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portions of the [R&R] to which objection is made.” 28 U.S.C. § 636(b)(1); see Thomas v.

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Arn, 474 U.S. 140, 149-50 (1985). When no objection is filed, the district court need not

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review the R&R de novo. Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005);

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United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc).

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III.

DISCUSSION

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In the R&R, Magistrate Judge Bowman concluded that the alleged procedural errors

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cited by Petitioner as the basis for his petitioner do not violate the Constitution, and are

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therefore not cognizable through a federal habeas corpus proceeding.

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recommended that this Court dismiss Petitioner’s claims as federal habeas relief is not the

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appropriate avenue to redress alleged state post-conviction procedural errors.

The R&R

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Petitioner filed his objection to the R&R on January 30, 2013. In this objection,

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Petitioner failed to object to any of the Magistrate’s specific findings or recommendations

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in the R&R. Instead, Petitioner restated his arguments concerning his lack of appointed

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counsel during the state post-conviction process. Petitioner did not address the issues of

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whether state post-conviction procedure is governed or mandated by the federal Constitution.

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Moreover, a review of Petitioner’s objections shows that Petitioner failed to identify any

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flaws whatsoever in the R&R’s citation to legal authority, discussion of the pertinent facts,

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reasoning, and ultimate conclusion regarding Petitioner’s habeas petition. If a party has

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objections to a R&R, those specific objections must be filed in writing explaining why the

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R&R is flawed. Petitioner’s objections merely incorporate the same arguments he made in
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his original petition and reply. Magistrate Judge Bowman has already addressed the issues

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raised in the petition. Merely reasserting the grounds of the petition as an objection provides

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this Court with no guidance as to what portions of the R&R Petitioner considers to be

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incorrect. As such, the Court will deem Petitioner’s objections, which are mere recitations

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of earlier arguments, ineffective. See Fed.R.Civ.P. 72(b)(2) (stating that a district judge

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“shall make a de novo determination . . . of any portion of the magistrate judge’s disposition

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to which specific written objection has been made[.]”) (emphasis added).

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Therefore, to the extent that no objection has been made, arguments to the contrary

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have been waived. McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir.1980) (failure to object

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to Magistrate's report waives right to do so on appeal); see also, Advisory Committee Notes

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to Fed.R.Civ.P. 72 (citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th

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Cir.1974) (when no timely objection is filed, the court need only satisfy itself that there is no

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clear error on the face of the record in order to accept the recommendation). This Court

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considers the R&R to be thorough and well-reasoned and agrees that Petitioner has failed to

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show that the federal Constitution requires the appointment of counsel for state post-

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conviction relief proceedings.

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The Court is relieved of any obligation to review a general objection to the R&R. See

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Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) (“[Section

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636(b)(1) ] does not ... require any review at all ... of any issue that is not the subject of an

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objection.”); Fed.R.Civ.P. 72(b)(3) (“The district judge must determine de novo any part of

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the magistrate judge's disposition that has been properly objected to.”) (emphasis added).

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However, even after conducting an independent, de novo review of the record, the Court

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finds that the state post-conviction relief process is not mandated by the federal Constitution.

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The Court will adopt the R&R of Magistrate Judge Bowman (Doc. 19).

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IV.

CERTIFICATE OF APPEALABILITY

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Before Petitioner can appeal this Court's judgment, a certificate of appealability must

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issue. See 28 U.S.C. § 2253(c); Fed.R.App. P. 22(b)(1). Federal Rule of Appellate

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Procedure 22(b) requires the district court that rendered a judgment denying a petition made
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pursuant to 28 U.S.C. § 2254 to “either issue a certificate of appealability or state why a

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certificate should not issue.” Additionally, 28 U.S.C. § 2253(c)(2) provides that a certificate

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may issue “only if the applicant has made a substantial showing of the denial of a

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constitutional right.” In the certificate, the court must indicate which specific issues satisfy

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this showing. See 28 U.S.C. § 2253(c)(3). A substantial showing is made when the

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resolution of an issue of appeal is debatable among reasonable jurists, if courts could resolve

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the issues differently, or if the issue deserves further proceedings. See Slack v. McDaniel,

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529 U.S. 473, 484–85, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Upon review of the record,

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and in light of the standards for granting a certificate of appealability, the Court concludes

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that a certificate shall not issue as the resolution of the petition is not debatable among

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reasonable jurists and does not deserve further proceedings. Accordingly,

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IT IS ORDERED:

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(1)

Magistrate Judge Bowman’s Report and Recommendation (Doc. 19) is hereby

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ACCEPTED and ADOPTED as the findings of fact and conclusions of law

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by this Court.

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(2)

Denying Petitioner’s Amended Petition for Writ of Habeas Corpus (Doc. 5).

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(3)

Petitioner’s Amended Petition for Writ of Habeas Corpus (Doc.

5) is

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dismissed with prejudice. The Clerk of the Court shall enter judgment

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accordingly and close this case.

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(4)

This Court declines to issue a Certificate of Appealability.

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DATED this 6th day of May, 2013.

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