Carrillo #041443 v. Ryan et al
Filing
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ORDER ADOPTING 20 REPORT AND RECOMMENDATION in its entirety as its findings of fact and conclusions of law. The 21 Objections raised by the Petitioner are OVERRULED. The 1 Petition for Writ of Habeas Corpus is DENIED on all claims and the action is DISMISSED. Clerk's Office is directed to enter a separate Final Judgment to conform to this Order. The Court DECLINES to grant Petitioner a certificate of appealability. Signed by Senior Judge David C Bury on 6/12/17.(BAC)
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UNITED STATES DISTRICT COURT
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DISTRICT OF ARIZONA
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Richard Jo Carrillo,
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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-14-2325-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)(1)(B) and the local rules of practice of
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this Court for a Report and Recommendation (R&R) on the Petition for Writ
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of Habeas Corpus (Doc. 1). Before the Court is the Magistrate Judge’s
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Report and Recommendation (Doc. 20). The Magistrate Judge recommends to
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the Court that the Petition for Writ of Habeas Corpus may be denied and
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the matter dismissed.
The Petitioner filed Objections (Doc. 21).
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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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PETITIONER’S OBJECTIONS
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Petitioner abandons Grounds I and IV for purposes of raising them
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in the Objections and therefore the R&R is adopted, without further
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discussion here, as the findings and conclusions of this Court on Grounds
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I and IV.
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Petitioner raises
again Grounds II and III in his Objections, but
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the
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Basically his objections remain with reference to Ground II that he was
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deprived of a fair trial based on juror bias and the failure of the trial
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court to grant a mistrial.
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aware of his prior DUI convictions and that it was impossible to properly
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sanitize his trial from preconceived notions and bias.
objections
are
devoid
of
any
new
legal
argument
or
evidence.
He argues that the jury pool was improperly
With reference
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to Ground III, Petitioner objects to the use of a blood sample taken at
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the hospital without his permission as evidence during the trial. (Doc.
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21 at 3.)
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when the R&R was issued with no new legal or factual argument contained
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in the Objections.
This was Petitioner’s argument before the Magistrate Judge
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DISCUSSION
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Petitioner was convicted in Cochise County Superior Court in March
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2011 of multiple counts of Aggravated DUI and was sentenced to an 11-year
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term of imprisonment. Petitioner raised four grounds for relief in his
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habeas petition:
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effective assistance of counsel in violation of the Sixth Amendment;
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Ground Two, Petitioner alleges that a warrantless search was conducted
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during the investigation of the underlying criminal case in violation of
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the Fourth Amendment; Ground Three, Petitioner claims that his Fourteenth
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Amendment right to due process was denied when the trial court allowed
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the jury to hear evidence of Petitioner’s prior convictions and failed
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to grant a mistrial; and, Ground Four, Petitioner claims that his Fifth,
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Sixth, and Fourteenth Amendment rights were violated when police officers
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Ground One, Petitioner alleges that he was denied
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failed to read him his rights as required by Miranda v. Arizona, 384 U.S.
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436 (1966).
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The Court finds that the Report and Recommendation is thorough and
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well-considered.
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Recommendation.
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arguments as to Grounds II and III, with no additional specific examples
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of error.
The Respondents have no Objections to the Report and
Petitioner’s Objections reiterate all of the original
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The R&R was resolved without a hearing and this Court agrees that
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none was required. The Court also agrees that a copy of the transcript
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of the voir dire proceedings was critical to a complete resolution of
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Petitioner’s complaints. The R&R properly found that Grounds I, II and
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IV may be denied and dismissed as procedurally defaulted.
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also
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defaulted (R&R at 15) or on the merits.
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it resolves Ground III on the merits. (R&R at 15 - 28.)
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Magistrate Judge’s procedural default finding on Grounds I (R&R at 9),
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II (R&R at 10) and IV (R&R at 29), Petitioner has not established cause
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and prejudice or a fundamental miscarriage of justice to overcome the
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defaults.
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agrees
that
Ground
III
may
be
denied
as
either
This Court
procedurally
The Court will adopt the R&R as
As to the
The Objections add nothing new for this Court to consider.
The Court will adopt the R&R in its entirety and will deny the
habeas petition on all claims.
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. 20) in its entirety as its findings of fact and conclusions of law.
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The Objections (Doc. 21) raised by the Petitioner are OVERRULED.
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IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus
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(Doc. 1) is DENIED on all claims and the action is DISMISSED. The Clerk’s
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Office is directed to enter a separate Final Judgment to conform to this
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Order.
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appealability.
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The
Court
DECLINES
to
grant
DATED this 12th day of June, 2017.
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Petitioner
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a
certificate
of
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