Rimer #189871 v. Ryan et al

Filing 29

ORDER ACCEPTING & ADOPTING REPORT AND RECOMMENDATION: Petitioner Ignacio Esteban Rimer's pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) is denied. Doc. 1 . Plaintiff' ;s request for an evidentiary hearing is denied. The Court will not issue a certificate of appealability because Petitioner has not made a substantial showing of the denial of a constitutional right. The Clerk of Court is directed to close the case. Signed by Chief Judge Raner C Collins on 5/17/2017. (SIB)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Ignacio Esteban Rimer,
Petitioner,

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ORDER

v.

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No. CV-14-01930-TUC-RCC

Charles L Ryan, et al.,

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Respondents.

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Pending before the Court is Petitioner Ignacio Esteban Rimer’s pro se Petition

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Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-

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Death Penalty) (Doc. 1), Magistrate Judge Macdonald’s Report and Recommendation

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(“R&R”) (Doc. 21), Petitioner’s objections (Doc. 26) and Respondents’ response to the

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objections (Doc. 27). Petitioner did not file a reply. The R&R is ripe for review. For the

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following reasons, this Court shall overrule Petitioner’s objections and deny the petition.

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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 Macdonald’s R&R. The Court fully incorporates the “Factual and

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Procedural Background” section of the R&R into this Order.

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II. Legal Standard

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

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of 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

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return the matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3); 28

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U.S.C. § 636(b)(1).

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Where the parties object to an R & R, “[a] judge of the [district] court shall make a

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de novo determination of those portions of the [R & R] to which objection is made.” 28

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U.S.C. § 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149-50 (1985). When no objection

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is filed, the district court need not review the R & R de novo. Wang v. Masaitis, 416 F.3d

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992, 1000 n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22

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(9th Cir. 2003) (en banc). The Court will not disturb a magistrate judge’s order unless his

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factual findings are clearly erroneous or his legal conclusions are contrary to law. 28

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U.S.C. § 636(b)(1)(A). “[T]he magistrate judge’s decision…is entitled to great deference

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by the district court.” United States v. Abonce-Barrera, 257 F.3d 959, 969 (9th Cir.

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2001). A failure to raise an objection waives all objections to the magistrate judge’s

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findings of fact. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). A failure to object

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to a Magistrate Judge’s conclusion “is a factor to be weighed in considering the propriety

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of finding waiver of an issue on appeal.” Id. (internal citations omitted).

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III. Discussion

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Petitioner has several objections. First, Petitioner “generally objects to [the

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R&R’s] assertion that his claims are without merit.” Doc. 26 at 1. However, a “general

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objection to the entirety of a magistrate’s report has the same effect as would a failure to

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object.” Howard v. Secretary of Health and Human Services, 932 F.2d 505, 509 (6th Cir.

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1991). Thus, this objection is overruled because it has the same effect as failing to object.

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Petitioner’s remaining objections rely on the same false premise: that he raised the

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relevant federal constitutional claim in the state courts. First, Petitioner claims that his

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trial counsel was ineffective for failing to raise the issue of having his case severed.

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However, Petitioner neither raised this claim in his pro se PCR petitions nor did he raise

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it to the Arizona Court of Appeals. “[A]ll operative facts to an ineffective assistance

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claim must be presented to the state courts in order for a petitioner to exhaust his

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remedies.” Hemmerle v. Schriro, 495 F.3d 1069, 1075 (9th Cir. 2007). After reviewing

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the Petitioner’s pleadings in state court, it is clear that Petitioner did not raise an

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ineffective assistance of counsel claim. Thus, Magistrate Judge Macdonald’s holding that

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this claim is procedurally barred is correct and the Court will overrule Petitioner’s

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objection.

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Petitioner’s second and third objections also assume that he raised the claims in

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state court. However, the record indicates that he did not. Because Petitioner did not raise

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his objections in his state court proceedings, the claims are procedurally barred. See

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Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305-06 (9th Cir. 1996).

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Accordingly,

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IT IS HEREBY ORDERED that Magistrate Judge Macdonald’s Report and

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Recommendation is accepted and adopted as the findings of fact and conclusions of law

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by this Court.

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IT IS FURTHER ORDERED that Petitioner Ignacio Esteban Rimer’s pro se

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Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State

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Custody (Non-Death Penalty) is denied. Doc. 1.

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IT IS FURTHER ORDERED that Plaintiff’s request for an evidentiary hearing
is denied.

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IT IS FURTHER ORDERED that the Court will not issue a certificate of

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appealability because Petitioner has not made a substantial showing of the denial of a

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constitutional right.

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IT IS FURTHER ORDERED that the Clerk of Court is directed to close the
case.
Dated this 17th day of May, 2017.

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