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)

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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

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