McMonigal #115328 v. Ryan et al

Filing 36

ORDER ACCEPTING and ADOPTING Magistrate Judge D. Thomas Ferraro's 27 REPORT AND RECOMMENDATION. IT IS ORDERED that Petitioner Howard Ned McMonigal, III's 1 Petition for Writ of Habeas Corpus pursuant to 28 USC § 2254 is denied. The Clerk of Court is directed to close the case. Signed by Chief Judge Raner C Collins on 3/21/17.(BAC)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Howard Ned McMonigal, III,
Petitioner,

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ORDER

v.

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No. CV-15-00134-TUC-RCC

Charles L Ryan, et al.,

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Respondents.

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Pending before the Court is Petitioner Howard Ned McMonigal, III’s Petition for

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Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, Magistrate Judge D. Thomas

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Ferraro’s Report and Recommendation (R & R) and Petitioner’s objections to the R & R.

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Docs. 1, 27 and 34. On November 4, 2016, this Court accepted and adopted the R & R

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after no objections were filed. Doc. 28. On November 21, 2016, this Court vacated the

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order after Petitioner filed a notice stating that he never received the R & R. Doc. 32. On

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December 15, 2016, Petitioner filed objections. Doc. 34. For the following reasons, the

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Court shall overrule Petitioner’s objections, and accept and adopt the R & R.

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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 Ferraro’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.

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Legal Standard
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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A. Claim One

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Petitioner’s first alleged ground for relief is that he was denied a right to a grand

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jury, notice, a fair trial, and due process arising from substantial amendment of the

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indictment shortly before trial. Magistrate Judge Ferraro held that this ground was

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procedurally defaulted because Petitioner did not present this argument to the Post-

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Conviction Relief (“PCR”) court and it was not fairly presented to the appellate court in a

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procedurally appropriate manner. In his objections, Petitioner simply states that the R &

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R is erroneous and restates his position that was rejected by Magistrate Judge Ferraro.

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The Court concludes that Petitioner has not effectively objected to the R & R for this

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claim. Christy v. Randlett, 932 F.2d 502, 504 (6th Cir. 1991) (stating that a general

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objection to the magistrate judge’s report without specifying an issue of contention “has

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the same effects as would a failure to object.”).

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B. Claim Two

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Petitioner’s second claim contains three parts. First, Petitioner alleges that the

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prosecutor committed misconduct by knowingly presenting the false testimony of several

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witnesses. Second, Petitioner alleges his appellate counsel failed to raise this claim.

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Third, Petitioner claims that in closing arguments, the prosecutor vouched for one of the

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witnesses and argued facts not in evidence. Magistrate Judge Ferraro’s R & R thoroughly

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and correctly explains why Petitioner’s claims fail.

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In his objections to the R & R, Petitioner ignores the fact that the PCR court found

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all non-IAC claims precluded by Arizona Rule of Criminal Procedure 32.2(a). Doc. 1-4 at

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50. Furthermore, the Arizona Court of Appeals found this portion to be procedurally

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defaulted under Arizona Rule of Criminal Procedure 32.2(a)(3) and 32.9(c)(1). Therefore,

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Magistrate Judge Ferraro is correct in holding this portion of the claim to be procedurally

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barred. See Cassett v. Stewart, 406 F.3d 614, 621 n. 5 (9th Cir. 2005) (“[T]he procedural

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default rule barring consideration of a federal claim applies only when a state court has

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been presented with the federal claim, but declined to reach the issue for procedural

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reasons, or if it is clear that the state would hold the claim procedurally barred.”).

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Petitioner does not discuss objections for the second portion of this claim. Thus,

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Petitioner has waived this portion of the claim. For the last portion, Petitioner restates his

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claim that the prosecutor stated that one of the witnesses was “telling the truth” during

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closing arguments. However, as the R & R states, the prosecutor did not opine as to

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whether the witness was telling the truth. Rather, the prosecutor drew reasonable

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inferences from photographs used during the trial to argue that the witness’s testimony

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was credible. Thus, Petitioner is not entitled to relief.

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C. Claim Three

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Petitioner alleges that he received ineffective assistance of counsel (“IAC”) at trial

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when counsel failed to: (a) challenge an unlawful August 9, 2007 search and seizure; (b)

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call witnesses Ashley Delima and Anice Fraser; (c) challenge amendment of the

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indictment; (d) challenge perjury by the State’s witnesses; and (e) impeach the testimony

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of Ms. Knutson based on her mental health issues.

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In a petition for writ of habeas corpus alleging ineffective assistance of counsel,

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the Court must consider two factors. Strickland v. Washington, 466 U.S. 668 (1984).

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First, the petitioner must show that counsel’s performance was deficient, requiring a

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showing that counsel made errors so serious that he or she was not functioning as the

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“counsel” guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. The

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petitioner must show that counsel’s representation fell below an objective standard of

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reasonableness, and must identify counsel’s alleged acts or omissions that were not the

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result of reasonable professional judgment considering the circumstances. Id. at 688.

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Judicial scrutiny of counsel’s performance is highly deferential. A court indulges a strong

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presumption that counsel’s conduct falls within the wide range of reasonable professional

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assistance. Id. at 687. Second, the petitioner must demonstrate that “there is a reasonable

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probability that, but for counsel’s unprofessional errors, the result . . . would have been

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different.” Id. at 694. Petitioner must show that counsel’s errors were “so serious as to

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deprive defendant of a fair trial, a trial whose result is reliable.” Id. at 687. The Court

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must evaluate whether the entire trial was fundamentally unfair or unreliable because of

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counsel’s ineffectiveness. Id.

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Petitioner has not sufficiently demonstrated that counsel’s alleged ineffectiveness

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made the entire trial fundamentally unfair or unreliable. Further, Petitioner has failed to

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show how Magistrate Judge Ferraro erred in concluding the following: (a) the police did

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not exceed the scope of the search warrant; (b) Petitioner failed to establish how he was

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prejudiced because Delima and Fraser were not called to testify and the decision to not

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call Delima and Fraser to testify was a strategic decision; (c) Petitioner failed to

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demonstrate how the amendments were improper or how he was prejudiced; (d) the state

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courts application of Strickland was objectively reasonable; and (e) Petitioner failed to

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demonstrate how he was prejudiced by Ms. Knutson’s mental health issues.

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III. Conclusion

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Thus, the Court, having considered the R & R, Petitioner’s objections and the

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remaining record holds that Magistrate Judge Ferraro’s R & R shall be accepted and

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adopted. Further, Howard Ned McMonigal, III’s Petition for Writ of Habeas Corpus

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pursuant to 28 U.S.C. § 2254 shall be denied.

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Accordingly,

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IT IS HEREBY ORDERED that Petitioner Howard Ned McMonigal, III’s

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Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 is denied. Doc. 1.
IT IS FURTHER ORDERED that Magistrate Judge D. Thomas Ferraro’s Report

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and Recommendation (R & R) is accepted and adopted. Doc. 27

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IT IS FURTHER ORDERED that the Clerk of Court is directed to close the
case.
Dated this 21st day of March, 2017.

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