Tuccio #127581 v Ryan, et al
Filing
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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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UNITED STATES DISTRICT COURT
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DISTRICT OF ARIZONA
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Richard Charles Tuccio,
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Petitioner,
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v.
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Charles L. Ryan, et al.,
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Respondents.
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______________________________________ )
CV-12-565-TUC-DCB
ORDER
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This matter was referred to the United States Magistrate Judge
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pursuant to
28 U.S.C. §636(b) and the local rules of practice of this
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Court for a Report and Recommendation (R&R) on the Petition for Writ of
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Habeas Corpus pursuant to 28 U.S.C. §2254. Before the Court is the
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Magistrate Judge’s Report and Recommendation, which recommends that the
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Petition be denied and dismissed. The Petitioner filed Objections to the
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Report and Recommendation and the Respondents filed a Response to the
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Objections.
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PETITIONER’S OBJECTIONS
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Petitioner’s objections, as follows:
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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.
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(Objection at 6-7.) In addition, Petitioner claims that the Magistrate
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Judge committed error in recommending that claims (1), (2) and (4) may
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be dismissed on their merits.1 (Objection at 8.)
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in this case, his attorney was ineffective “because of his acts that were
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inconsistent with his duties of loyalty to petitioner.”
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9.)
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His reasoning is that
(Objection at
STANDARD OF REVIEW
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When objection is made to the findings and recommendation of a
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magistrate judge, the district court must conduct a de novo review.
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United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).
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DISCUSSION
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Petitioner was convicted by a jury in Pima County Superior Court,
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case #CR 2009-1004- 001, of Kidnapping-Domestic Violence, Sexual Assault,
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and Burglary, and was sentenced to multiple terms of imprisonment, the
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longest of which is 10.5-years.
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relief: (1) Petitioner’s trial counsel was ineffective in violation of
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the Sixth Amendment;(2) The trial court erred by precluding testimony
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that was relevant and probative toward Petitioner’s defense, in violation
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of the Sixth and Fourteenth Amendments; (3) Petitioner’s Sixth Amendment
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rights were violated when trial counsel failed to inform him of a plea
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deal
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Petitioner’s request for a hearing on the issue of ineffective assistance
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of counsel; and (4) Petitioner’s appellate counsel was ineffective in
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violation of the Sixth Amendment.
and
when
the
trial
court
Petitioner raised four grounds for
abused
its
discretion
by
denying
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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).
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Respondents, in a thorough and detailed review of Petitioner’s
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conviction, appeal and post-conviction litigation, argued procedural
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default, claims not cognizable for federal habeas relief, as well as
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dismissal on the merits. (Docs. 12-15)
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Judge’s Report and Recommendation is thorough and well-reasoned. (Doc.
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19.)
In addition, the Magistrate
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Petitioner’s Objections do not highlight any new or pertinent law
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or facts that were left unconsidered, unresolved or improperly resolved
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in the R&R.
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CERTIFICATE OF APPEALABILITY
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This Court has authority to issue a Certificate of Appealability
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(COA), if the Petitioner has made a substantial showing that he was
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denied a federal constitutional right.
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shall indicate which specific issue or issues where there is substantial
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showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(3).
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"Where a district court has rejected the constitutional claims on
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the merits, the showing required to satisfy § 2253(c) is straightforward:
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The petitioner must demonstrate that reasonable jurists would find the
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district court's assessment of the constitutional claims debatable or
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wrong."
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(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)
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The issue is somewhat more complicated where the district court
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dismisses the petition based on procedural grounds, without reaching the
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merits of the underlying
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shows, at least, that jurists of reason would find it debatable whether
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the petition states a valid claim of the denial of a constitutional right
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and that jurists of reason would find it debatable whether the district
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claim, then the COA
issues if the prisoner
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court was correct in its procedural ruling. Martin, 226 F.3d at 1046. The
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first
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constitutional question, then the question is whether the procedural
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issue raised in the petition is highly debatable. Id.
step
is
to
decide
whether
the
petition
raises
a
debatable
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Here, the Court ruled on both the merits and on procedural grounds.
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The Court finds that the Petition failed to raise any constitutional
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issues or procedural issues that would be highly debatable among jurists
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of reason.
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CONCLUSION
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Accordingly, after conducting a de novo review of the record,
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IT IS ORDERED that the Court ADOPTS the Report and Recommendation
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(Doc. 19) in its entirety.
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OVERRULED.
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The Objections raised by the Petitioner are
IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus
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(Doc. 1) is DENIED and this action is DISMISSED with prejudice.
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Judgment to enter separately.
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IT IS FURTHER ORDERED that the Certificate of Appealability is
DENIED.
DATED this 19th day of May, 2014.
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Final
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