Santos-Silvas v. Ryan et al

Filing 25

ORDER ADOPTING 22 Report and Recommendation. Petitioners Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Doc. 1) is DENIED. The Clerk of the Court shall enter judgment in this matter and close its file. Signed by Judge Jennifer G Zipps on 10/25/13. (SMBE)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Raul Santos-Silvas,

No. CV-12-00171-TUC-JGZ (LAB)
Petitioner,

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v.

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ORDER

Charles L Ryan, et al.,

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Respondents.

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On August 6, 2013, Magistrate Judge Leslie A. Bowman issued a Report and

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Recommendation (“R&R”) (Doc. 22) recommending that Petitioner’s Petition for Writ of

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Habeas Corpus pursuant to 28 U.S.C. § 2254, filed on March 8, 2012 (Doc. 1), be denied.

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

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after being served with a copy of the R&R. On August 23, 2013, Petitioner filed

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Objections to the R&R. (Doc. 24.) For the reasons stated herein, the Court adopts the

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R&R.

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STANDARD OF REVIEW

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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).

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LEGAL ANALYSIS

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Petitioner objects to the R&R on four grounds: (1) the R&R’s fact summary

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incorrectly identifies him as the vehicle’s driver and wearer of a “bloody t-shirt,” which

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Petitioner denies and asserts he is a victim of mistaken identity caused by improper in-

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court identification; (2) the R&R fails to address the evidentiary issues raised by the

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“bloody t-shirt,” particularly whether the “bloody t-shirt” should be DNA tested; (3) the

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R&R “ignores” that Petitioner’s need for DNA testing justifies an appointment of legal

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counsel; and (4) the R&R is flawed because it fails to appoint him legal counsel.

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Petitioner’s first objection misstates the R&R’s “case summary”; the R&R does

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not state he was “wearing a bloody t-shirt.” (Doc. 22, p. 2, ln. 5.) Moreover, the R&R’s

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statement that Petitioner was found to be the driver of the vehicle is a direct finding from

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the Arizona Court of Appeals Memorandum Decision, 2 CA-CR 2008-0165, and this

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Court finds no error in this reference. See 28 U.S.C. § 2254(e)(1); see also Moses v.

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Payne, 555 F.3d 742, 746 n. 1 (9th Cir. 2009) (finding factual summary of the Arizona

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Court of Appeals is accorded a presumption of correctness) (internal citation omitted).

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(Doc. 11-2, p. 23.) As such, Petitioner’s factual objection is overruled.

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To the extent Petitioner’s first and second objections raise evidentiary challenges

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regarding a “bloody t-shirt” and an alleged failure to DNA test it, this Court notes that

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Petitioner failed to raise this issue in his § 2254 petition. (Doc. 1.) According to Rule

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2(c) of the Rules Governing Section 2254 Proceedings, Petitioner must: (1) specify all the

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grounds for relief available, (2) state the facts supporting that relief, and (3) state the

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relief requested. See Rule 2(c) (1)-(3), Rules Governing Section 2254 Proceedings.

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Petitioner’s § 2254 petition failed to raise any issue regarding a “bloody t-shirt” or “DNA

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testing,” and he is therefore procedurally barred from raising the issue and cannot now do

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so as disguised objections to the R&R. For this reason, the Court overrules objections

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one and two.

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Finally, Petitioner’s third and fourth objections are similarly beyond the scope of

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the R&R and raise objections to the Magistrate’s August 6, 2013 Order (Doc. 23)

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denying his request for appointment of counsel. For this reason, this Court will overrule

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objections three and four.

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Accordingly, after an independent review, IT IS HEREBY ORDERED that:

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The Report and Recommendation (Doc. 22) is ADOPTED.

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

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by a Person in State Custody (Doc. 1) is DENIED.

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The Clerk of the Court shall enter judgment in this matter and close its file.

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Dated this 25th day of October, 2013.

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