Basta 226043 v. Shinn

• Court: District Court, D. Arizona
• Decided: November 22, 2019
• Docket: 2:18-cv-04748
• Status: Unknown

Opinion

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8

Sameh Basta, ) No. CV-18-04748-PHX-SPL ) 9 ) 10 Petitioner, ) ORDER v. ) ) 11 ) David Shinn, et al., ) 12 ) 13 Respondents. ) ) 14 )

15 The Court has before it, Petitioner’s Petition for Writ of Habeas Corpus pursuant to 16 28 U.S.C. § 2254 (Doc. 1), and the Answer from the Respondents. (Doc. 10) Additionally, 17 the Court is in receipt of the Report and Recommendation of the Magistrate Judge (Doc. 18 12), Petitioner’s Objections (Doc. 19), and the Response to the Objections. (Doc. 20) 19 In the instant Petition, the Petitioner alleges reversible error on the part of the trial 20 court for a denial of Petitioner’s motion to suppress involuntary statements in violation of 21 the Fifth, Sixth, and Fourteenth Amendments. (Doc. 1 at 6-11) Additionally, the Petitioner 22 alleged a violation of his Miranda rights; that the trial judge precluded the Petitioner “from 23 mentioning any statements he made to his wife and to the former prosecutor during their 24 ‘free talk’ session”; and ineffective assistance of counsel in violation of the Sixth 25 Amendment. (Id. at 12-21) 26 A district judge “may accept, reject, or modify, in whole or in part, the findings or 27 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). When a party files a 28 timely objection to an R&R, the district judge reviews de novo those portions of the R&R 1 that have been “properly objected to.” Fed. R. Civ. P. 72(b). A proper objection requires 2 specific written objections to the findings and recommendations in the R&R. See United 3 States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); 28 U.S.C. § 636(b) (1). It 4 follows that the Court need not conduct any review of portions to which no specific 5 objection has been made. See Reyna-Tapia, 328 F.3d at 1121; see also Thomas v. Arn, 474 6 U.S. 140, 149 (1985) (discussing the inherent purpose of limited review is judicial 7 economy). Further, a party is not entitled as of right to de novo review of evidence or 8 arguments which are raised for the first time in an objection to the R&R, and the Court’s 9 decision to consider them is discretionary. United States v. Howell, 231 F.3d 615, 621-622 10 (9th Cir. 2000). 11 The Court has carefully undertaken an extensive review of the sufficiently 12 developed record. The Petitioner’s objections to the findings and recommendations have 13 also been thoroughly considered, although they constitute a recitation of what was 14 previously filed and addressed by Judge Willett. Furthermore, this Court has also reviewed 15 the new information that was presented in the Petitioner’s objections to the Report and 16 Recommended. (Doc. 19 at 3-9 and Doc. 19-1 at 1-11) 17 After conducting a de novo review of the issues and objections, to include the new 18 information, the Court reaches the same conclusions reached by Judge Willett. Having 19 carefully reviewed the record, the Petitioner failed to show that extraordinary 20 circumstances or that newly discovered and reliable evidence of actual innocence were the 21 proximate cause of the untimely filing as previously addressed in Spitsyn v. Moore, 345 22 F.3d 796, 799 (9th Cir. 2003). The Petitioner is not entitled to equitable tolling or habeas 23 relief. The R&R will be adopted in full. Accordingly, 24 IT IS ORDERED: 25 1. That the Magistrate Judge’s Report and Recommendation (Doc. 12) is 26 accepted and adopted by the Court; 27 2. That the Petitioner’s Objections (Doc. 19) are overruled; 28 3. That the Petition for Writ of Habeas Corpus (Doc. 1) is denied and this action 1 | is dismissed with prejudice; 2 4. That a Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied because the dismissal of the Petition is justified by a plain procedural bar and reasonable jurists would not find the ruling debatable; and 5 5. That the Clerk of Court shall enter judgment according and terminate this action. 7 Dated this 22™4 day of November 2019. 8

10 United States District kadge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28