Carrillo #041443 v. Ryan et al

Filing 22

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)

1
2
3
4
UNITED STATES DISTRICT COURT

5
DISTRICT OF ARIZONA

6
7
Richard Jo Carrillo,

8
9
10
11
12

)
)
Petitioner,
)
v.
)
)
)
Charles L. Ryan, et al.,
)
)
Respondents.
)
______________________________________ )

CV-14-2325-TUC-DCB

ORDER

13
This matter was referred to the United States Magistrate Judge

14
pursuant to 28 U.S.C. §636(b)(1)(B) and the local rules of practice of

15
this Court for a Report and Recommendation (R&R) on the Petition for Writ

16
of Habeas Corpus (Doc. 1). Before the Court is the Magistrate Judge’s

17
Report and Recommendation (Doc. 20). The Magistrate Judge recommends to

18
the Court that the Petition for Writ of Habeas Corpus may be denied and

19
the matter dismissed.

The Petitioner filed Objections (Doc. 21).

20
STANDARD OF REVIEW

21
When objection is made to the findings and recommendation of a

22
magistrate judge, the district court must conduct a de novo review.

23
United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).

24
PETITIONER’S OBJECTIONS

25
Petitioner abandons Grounds I and IV for purposes of raising them

26
in the Objections and therefore the R&R is adopted, without further

27
28

1

discussion here, as the findings and conclusions of this Court on Grounds

2

I and IV.

3

Petitioner raises

again Grounds II and III in his Objections, but

4

the

5

Basically his objections remain with reference to Ground II that he was

6

deprived of a fair trial based on juror bias and the failure of the trial

7

court to grant a mistrial.

8

aware of his prior DUI convictions and that it was impossible to properly

9

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

10

to Ground III, Petitioner objects to the use of a blood sample taken at

11

the hospital without his permission as evidence during the trial. (Doc.

12

21 at 3.)

13

when the R&R was issued with no new legal or factual argument contained

14

in the Objections.

This was Petitioner’s argument before the Magistrate Judge

15

DISCUSSION

16

Petitioner was convicted in Cochise County Superior Court in March

17

2011 of multiple counts of Aggravated DUI and was sentenced to an 11-year

18

term of imprisonment. Petitioner raised four grounds for relief in his

19

habeas petition:

20

effective assistance of counsel in violation of the Sixth Amendment;

21

Ground Two, Petitioner alleges that a warrantless search was conducted

22

during the investigation of the underlying criminal case in violation of

23

the Fourth Amendment; Ground Three, Petitioner claims that his Fourteenth

24

Amendment right to due process was denied when the trial court allowed

25

the jury to hear evidence of Petitioner’s prior convictions and failed

26

to grant a mistrial; and, Ground Four, Petitioner claims that his Fifth,

27

Sixth, and Fourteenth Amendment rights were violated when police officers

28

2

Ground One, Petitioner alleges that he was denied

1

failed to read him his rights as required by Miranda v. Arizona, 384 U.S.

2

436 (1966).

3

The Court finds that the Report and Recommendation is thorough and

4

well-considered.

5

Recommendation.

6

arguments as to Grounds II and III, with no additional specific examples

7

of error.

The Respondents have no Objections to the Report and
Petitioner’s Objections reiterate all of the original

8

The R&R was resolved without a hearing and this Court agrees that

9

none was required. The Court also agrees that a copy of the transcript

10

of the voir dire proceedings was critical to a complete resolution of

11

Petitioner’s complaints. The R&R properly found that Grounds I, II and

12

IV may be denied and dismissed as procedurally defaulted.

13

also

14

defaulted (R&R at 15) or on the merits.

15

it resolves Ground III on the merits. (R&R at 15 - 28.)

16

Magistrate Judge’s procedural default finding on Grounds I (R&R at 9),

17

II (R&R at 10) and IV (R&R at 29), Petitioner has not established cause

18

and prejudice or a fundamental miscarriage of justice to overcome the

19

defaults.

20
21
22

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

23

Accordingly, after conducting a de novo review of the record,

24

IT IS ORDERED that the Court ADOPTS the Report and Recommendation

25

(Doc. 20) in its entirety as its findings of fact and conclusions of law.

26

The Objections (Doc. 21) raised by the Petitioner are OVERRULED.

27
28

3

1

IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus

2

(Doc. 1) is DENIED on all claims and the action is DISMISSED. The Clerk’s

3

Office is directed to enter a separate Final Judgment to conform to this

4

Order.

5

appealability.

6

The

Court

DECLINES

to

grant

DATED this 12th day of June, 2017.

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Petitioner

4

a

certificate

of