Tuccio #127581 v Ryan, et al

Filing 25

ORDER ADOPTING 19 Report and Recommendation. Objections reaised by the Petitioner are OVERRULED. Petition for Writ of Habeas Corpus (Doc. 1 ) is DENIED and this action is DISMSSED with prejudice. Final Judgment to enter separately. Certificate of Appealability is DENIED. Signed by Senior Judge David C Bury on 5/19/14. (SMBE)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF ARIZONA 6 7 Richard Charles Tuccio, 8 9 10 11 12 ) ) Petitioner, ) v. ) ) ) Charles L. Ryan, et al., ) ) Respondents. ) ______________________________________ ) CV-12-565-TUC-DCB ORDER 13 This matter was referred to the United States Magistrate Judge 14 pursuant to 28 U.S.C. §636(b) and the local rules of practice of this 15 Court for a Report and Recommendation (R&R) on the Petition for Writ of 16 Habeas Corpus pursuant to 28 U.S.C. §2254. Before the Court is the 17 Magistrate Judge’s Report and Recommendation, which recommends that the 18 Petition be denied and dismissed. The Petitioner filed Objections to the 19 Report and Recommendation and the Respondents filed a Response to the 20 Objections. 21 PETITIONER’S OBJECTIONS 22 Petitioner’s objections, as follows: 23 24 25 26 27 28 Petitioner claims that the Recommendation of the Magistrate Judge that petitioner failed to argue for the first time that his attorney failed to conduct adequate investigation to advise and assist him in making an informed decision on the plea offer versus going to trial in his PCR is not correct...Petitioner claims that claim 3 is not procedurally defaulted in this case. 1 (Objection at 6-7.) In addition, Petitioner claims that the Magistrate 2 Judge committed error in recommending that claims (1), (2) and (4) may 3 be dismissed on their merits.1 (Objection at 8.) 4 in this case, his attorney was ineffective “because of his acts that were 5 inconsistent with his duties of loyalty to petitioner.” 6 9.) 7 His reasoning is that (Objection at STANDARD OF REVIEW 8 When objection is made to the findings and recommendation of a 9 magistrate judge, the district court must conduct a de novo review. 10 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). 11 DISCUSSION 12 Petitioner was convicted by a jury in Pima County Superior Court, 13 case #CR 2009-1004- 001, of Kidnapping-Domestic Violence, Sexual Assault, 14 and Burglary, and was sentenced to multiple terms of imprisonment, the 15 longest of which is 10.5-years. 16 relief: (1) Petitioner’s trial counsel was ineffective in violation of 17 the Sixth Amendment;(2) The trial court erred by precluding testimony 18 that was relevant and probative toward Petitioner’s defense, in violation 19 of the Sixth and Fourteenth Amendments; (3) Petitioner’s Sixth Amendment 20 rights were violated when trial counsel failed to inform him of a plea 21 deal 22 Petitioner’s request for a hearing on the issue of ineffective assistance 23 of counsel; and (4) Petitioner’s appellate counsel was ineffective in 24 violation of the Sixth Amendment. and when the trial court Petitioner raised four grounds for abused its discretion by denying 25 26 1 27 The Respondent did not testify at trial, consequently his version of the factual basis is not part of the record before the Court. Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). 28 2 1 Respondents, in a thorough and detailed review of Petitioner’s 2 conviction, appeal and post-conviction litigation, argued procedural 3 default, claims not cognizable for federal habeas relief, as well as 4 dismissal on the merits. (Docs. 12-15) 5 Judge’s Report and Recommendation is thorough and well-reasoned. (Doc. 6 19.) In addition, the Magistrate 7 Petitioner’s Objections do not highlight any new or pertinent law 8 or facts that were left unconsidered, unresolved or improperly resolved 9 in the R&R. 10 CERTIFICATE OF APPEALABILITY 11 This Court has authority to issue a Certificate of Appealability 12 (COA), if the Petitioner has made a substantial showing that he was 13 denied a federal constitutional right. 14 shall indicate which specific issue or issues where there is substantial 15 showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(3). 16 "Where a district court has rejected the constitutional claims on 17 the merits, the showing required to satisfy § 2253(c) is straightforward: 18 The petitioner must demonstrate that reasonable jurists would find the 19 district court's assessment of the constitutional claims debatable or 20 wrong." 21 (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000).) 28 U.S.C. § 2253(c)(2). The COA United States v. Martin, 226 F.3d 1042, 1046 (9th Cir. 2000) 22 The issue is somewhat more complicated where the district court 23 dismisses the petition based on procedural grounds, without reaching the 24 merits of the underlying 25 shows, at least, that jurists of reason would find it debatable whether 26 the petition states a valid claim of the denial of a constitutional right 27 and that jurists of reason would find it debatable whether the district 28 3 claim, then the COA issues if the prisoner 1 court was correct in its procedural ruling. Martin, 226 F.3d at 1046. The 2 first 3 constitutional question, then the question is whether the procedural 4 issue raised in the petition is highly debatable. Id. step is to decide whether the petition raises a debatable 5 Here, the Court ruled on both the merits and on procedural grounds. 6 The Court finds that the Petition failed to raise any constitutional 7 issues or procedural issues that would be highly debatable among jurists 8 of reason. 9 CONCLUSION 10 Accordingly, after conducting a de novo review of the record, 11 IT IS ORDERED that the Court ADOPTS the Report and Recommendation 12 (Doc. 19) in its entirety. 13 OVERRULED. 14 The Objections raised by the Petitioner are IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus 15 (Doc. 1) is DENIED and this action is DISMISSED with prejudice. 16 Judgment to enter separately. 17 18 19 IT IS FURTHER ORDERED that the Certificate of Appealability is DENIED. DATED this 19th day of May, 2014. 20 21 22 23 24 25 26 27 28 Final 4

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