1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Brian John Pardo, No. CV-23-02507-PHX-MTL
10 Petitioner, ORDER
11 v.
12 Ryan Thornell, et al.,
13 Respondents. 14 15 Before the Court is Petitioner Brian John Pardo’s Petition for Writ of Habeas 16 Corpus. (Doc. 1.) Magistrate Judge James F. Metcalf issued a Report and Recommendation 17 (“R&R”), recommending that each claim in the Petition be denied. (Doc. 78 at 45.) The 18 R&R also recommends that a certificate of appealability not be issued. (Id.) Petitioner 19 timely filed objections to the R&R. (Doc. 85.) Respondent filed a response to Petitioner’s 20 objections. (Doc. 86.) 21 I. 22 The R&R recounts the factual and procedural history of this case, including the 23 underlying state court proceedings. (Doc. 78 at 1-11.) Petitioner does not object to the 24 R&R’s description of the factual and procedural history in this case. (Doc. 85.) The Court 25 accepts and adopts the R&R’s factual and procedural description. United States v. Reyna- 26 Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). 27 II. 28 In reviewing an R&R, this Court “may accept, reject, or modify, in whole or in part, 1 the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). 2 But district courts are not required to conduct “any review at all . . . of any issue that is not 3 the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). “[T]he district judge 4 must review the magistrate judge’s findings and recommendations de novo if objection is 5 made, but not otherwise.” Reyna-Tapia, 328 F.3d at 1121 (emphasis in original). This de 6 novo review requirement applies to “the portions of the [Magistrate Judge’s] 7 recommendations to which the parties object.” Klamath Siskiyou Wildlands Ctr. v. U.S. 8 Bureau of Land Mgmt., 589 F.3d 1027, 1032 (9th Cir. 2009). Such objections must be 9 “specific.” Fed. R. Civ. P. 72(b)(2). 10 III. 11 Petitioner raises several objections to the R&R. (Doc. 85.) None have merit, so the 12 Court will overrule them and accept the R&R. 13 A. 14 Petitioner objects to the R&R’s conclusion that Ground 1A should be denied. (Doc. 15 85 at 3-15.) Ground 1A of the Petition asserts that Petitioner was not given a full and fair 16 opportunity to litigate his suppression claim under the Fourth Amendment. (Doc. 1 at 17 14-15.) The R&R concluded that Ground 1A is procedurally defaulted because Petitioner 18 was given an opportunity for “full and fair” litigation of his Fourth Amendment claim. 19 (Doc. 78 at 15.) 20 Petitioner argues that Stone v. Powell, 428 U.S. 465 (1976) does not bar 21 consideration of his suppression claim in these habeas proceedings. (Id. at 7-15.) Stone 22 provides that “where the State has provided an opportunity for full and fair litigation of a 23 Fourth Amendment claim, the Constitution does not require that a state prisoner be granted 24 federal habeas corpus relief on the ground that evidence obtained in an unconstitutional 25 search or seizure was introduced at his trial.” 428 U.S. at 482. 26 Petitioner first contends he did not have a full opportunity to litigate his suppression 27 claim because the state court did not hold an evidentiary hearing. (Doc. 85 at 7-15.) The 28 absence of an evidentiary hearing is insufficient alone to demonstrate that there was no full 1 and fair opportunity to litigate. See Mack v. Cupp, 564 F.2d 898, 901 (9th Cir. 1977); see 2 also O’Berry v. Wainwright, 546 F.2d 1204, 1213 (5th Cir. 1977) (“Where, however, the 3 facts are undisputed, and there is nothing to be served by ordering a new evidentiary 4 hearing, the full and fair consideration requirement is satisfied.”). While Petitioner 5 repeatedly asserts that the state court did not use the correct “mechanism” to resolve the 6 purported factual dispute, Petitioner does not demonstrate the existence of a factual dispute 7 or material evidence that could be raised at an evidentiary hearing. (See Doc. 85 at 7-9.); 8 see also 28 U.S.C. § 2254(e)(2) (requiring, for an evidentiary hearing to be held, a “new 9 rule of constitutional law” or a “factual predicate that could not have been previously 10 discovered through the exercise of due diligence,” and the “facts underlying the claim 11 would be sufficient to establish by clear and convincing evidence that but for constitutional 12 error, no reasonable factfinder would have found the applicant guilty of the underlying 13 offense”). Petitioner has not shown that the state court’s failure to hold an evidentiary 14 hearing deprived Petitioner of the opportunity to litigate his claim. 15 Petitioner also alleges that Judge James B. Morse, Jr., the Arizona Court of Appeals 16 judge who wrote the opinion on Petitioner’s direct appeal, was an Assistant United States 17 Attorney that investigated the facts in this case. (Id. at 13-14.) But Petitioner provides no 18 evidence to support Judge Morse’s direct involvement in Petitioner’s case and discovery 19 is precluded on the topic. (See Doc. 44.) 20 Petitioner argues that the state misapplied State v. Gulbrandson, 184 Ariz. 46 (1995) 21 and Murray v. United States, 487 U.S. 533 (1988). (Doc. 85 at 3-7.) He also raises novel 22 theories as to why he should have prevailed on his claim. (See Doc. 85 at 7-14.) These 23 arguments do not address the R&R’s basis for denying Ground 1A—that Petitioner had the 24 opportunity to raise the basis for these arguments in state court. Because the R&R’s 25 conclusion as to procedural default is sufficient alone to bar Ground 1A, the Court need 26 not address the arguments that do not address procedural default. See Thomas, 474 U.S. at 27 149 (1985). 28 Petitioner’s objections to the R&R’s conclusion that Ground 1A is procedurally 1 defaulted are overruled. 2 B. 3 Petitioner contends that Briggs v. Raines, 652 F.2d 862 (9th Cir. 1981) applies, thus 4 requiring “the district court to try to reconstruct from the state records the missing facts.” 5 (Doc. 85 at 22-23.) Petitioner requests to hold an evidentiary hearing based on this 6 argument. (Id. at 23.) Because Petitioner had not raised this argument to the magistrate 7 judge, the Court will not consider it. See United States v. Howell, 231 F.3d 615, 621-22 8 (9th Cir. 2000) (holding that a district court may decline to consider new allegations 9 presented for the first time in objections). This objection is overruled. 10 C. 11 The balance of Petitioner’s objections attempt to relitigate the merits of his Petition, 12 rather than address the R&R’s conclusion. 13 Petitioner does not address the R&R’s conclusion that Grounds 1B, 1C, and 2A are 14 procedurally defaulted. (See Doc. 78 at 45.) Instead, he seeks to relitigate the substance of 15 his Fourth Amendment claim. (Doc.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Brian John Pardo, No. CV-23-02507-PHX-MTL
10 Petitioner, ORDER
11 v.
12 Ryan Thornell, et al.,
13 Respondents. 14 15 Before the Court is Petitioner Brian John Pardo’s Petition for Writ of Habeas 16 Corpus. (Doc. 1.) Magistrate Judge James F. Metcalf issued a Report and Recommendation 17 (“R&R”), recommending that each claim in the Petition be denied. (Doc. 78 at 45.) The 18 R&R also recommends that a certificate of appealability not be issued. (Id.) Petitioner 19 timely filed objections to the R&R. (Doc. 85.) Respondent filed a response to Petitioner’s 20 objections. (Doc. 86.) 21 I. 22 The R&R recounts the factual and procedural history of this case, including the 23 underlying state court proceedings. (Doc. 78 at 1-11.) Petitioner does not object to the 24 R&R’s description of the factual and procedural history in this case. (Doc. 85.) The Court 25 accepts and adopts the R&R’s factual and procedural description. United States v. Reyna- 26 Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). 27 II. 28 In reviewing an R&R, this Court “may accept, reject, or modify, in whole or in part, 1 the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). 2 But district courts are not required to conduct “any review at all . . . of any issue that is not 3 the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). “[T]he district judge 4 must review the magistrate judge’s findings and recommendations de novo if objection is 5 made, but not otherwise.” Reyna-Tapia, 328 F.3d at 1121 (emphasis in original). This de 6 novo review requirement applies to “the portions of the [Magistrate Judge’s] 7 recommendations to which the parties object.” Klamath Siskiyou Wildlands Ctr. v. U.S. 8 Bureau of Land Mgmt., 589 F.3d 1027, 1032 (9th Cir. 2009). Such objections must be 9 “specific.” Fed. R. Civ. P. 72(b)(2). 10 III. 11 Petitioner raises several objections to the R&R. (Doc. 85.) None have merit, so the 12 Court will overrule them and accept the R&R. 13 A. 14 Petitioner objects to the R&R’s conclusion that Ground 1A should be denied. (Doc. 15 85 at 3-15.) Ground 1A of the Petition asserts that Petitioner was not given a full and fair 16 opportunity to litigate his suppression claim under the Fourth Amendment. (Doc. 1 at 17 14-15.) The R&R concluded that Ground 1A is procedurally defaulted because Petitioner 18 was given an opportunity for “full and fair” litigation of his Fourth Amendment claim. 19 (Doc. 78 at 15.) 20 Petitioner argues that Stone v. Powell, 428 U.S. 465 (1976) does not bar 21 consideration of his suppression claim in these habeas proceedings. (Id. at 7-15.) Stone 22 provides that “where the State has provided an opportunity for full and fair litigation of a 23 Fourth Amendment claim, the Constitution does not require that a state prisoner be granted 24 federal habeas corpus relief on the ground that evidence obtained in an unconstitutional 25 search or seizure was introduced at his trial.” 428 U.S. at 482. 26 Petitioner first contends he did not have a full opportunity to litigate his suppression 27 claim because the state court did not hold an evidentiary hearing. (Doc. 85 at 7-15.) The 28 absence of an evidentiary hearing is insufficient alone to demonstrate that there was no full 1 and fair opportunity to litigate. See Mack v. Cupp, 564 F.2d 898, 901 (9th Cir. 1977); see 2 also O’Berry v. Wainwright, 546 F.2d 1204, 1213 (5th Cir. 1977) (“Where, however, the 3 facts are undisputed, and there is nothing to be served by ordering a new evidentiary 4 hearing, the full and fair consideration requirement is satisfied.”). While Petitioner 5 repeatedly asserts that the state court did not use the correct “mechanism” to resolve the 6 purported factual dispute, Petitioner does not demonstrate the existence of a factual dispute 7 or material evidence that could be raised at an evidentiary hearing. (See Doc. 85 at 7-9.); 8 see also 28 U.S.C. § 2254(e)(2) (requiring, for an evidentiary hearing to be held, a “new 9 rule of constitutional law” or a “factual predicate that could not have been previously 10 discovered through the exercise of due diligence,” and the “facts underlying the claim 11 would be sufficient to establish by clear and convincing evidence that but for constitutional 12 error, no reasonable factfinder would have found the applicant guilty of the underlying 13 offense”). Petitioner has not shown that the state court’s failure to hold an evidentiary 14 hearing deprived Petitioner of the opportunity to litigate his claim. 15 Petitioner also alleges that Judge James B. Morse, Jr., the Arizona Court of Appeals 16 judge who wrote the opinion on Petitioner’s direct appeal, was an Assistant United States 17 Attorney that investigated the facts in this case. (Id. at 13-14.) But Petitioner provides no 18 evidence to support Judge Morse’s direct involvement in Petitioner’s case and discovery 19 is precluded on the topic. (See Doc. 44.) 20 Petitioner argues that the state misapplied State v. Gulbrandson, 184 Ariz. 46 (1995) 21 and Murray v. United States, 487 U.S. 533 (1988). (Doc. 85 at 3-7.) He also raises novel 22 theories as to why he should have prevailed on his claim. (See Doc. 85 at 7-14.) These 23 arguments do not address the R&R’s basis for denying Ground 1A—that Petitioner had the 24 opportunity to raise the basis for these arguments in state court. Because the R&R’s 25 conclusion as to procedural default is sufficient alone to bar Ground 1A, the Court need 26 not address the arguments that do not address procedural default. See Thomas, 474 U.S. at 27 149 (1985). 28 Petitioner’s objections to the R&R’s conclusion that Ground 1A is procedurally 1 defaulted are overruled. 2 B. 3 Petitioner contends that Briggs v. Raines, 652 F.2d 862 (9th Cir. 1981) applies, thus 4 requiring “the district court to try to reconstruct from the state records the missing facts.” 5 (Doc. 85 at 22-23.) Petitioner requests to hold an evidentiary hearing based on this 6 argument. (Id. at 23.) Because Petitioner had not raised this argument to the magistrate 7 judge, the Court will not consider it. See United States v. Howell, 231 F.3d 615, 621-22 8 (9th Cir. 2000) (holding that a district court may decline to consider new allegations 9 presented for the first time in objections). This objection is overruled. 10 C. 11 The balance of Petitioner’s objections attempt to relitigate the merits of his Petition, 12 rather than address the R&R’s conclusion. 13 Petitioner does not address the R&R’s conclusion that Grounds 1B, 1C, and 2A are 14 procedurally defaulted. (See Doc. 78 at 45.) Instead, he seeks to relitigate the substance of 15 his Fourth Amendment claim. (Doc. 85.) Petitioner has therefore conceded that the R&R’s 16 determination as to the procedural default of Grounds 1B, 1C, and 2A is correct. 17 Petitioner’s objections do not challenge the conclusion that Petitioner’s ineffective 18 assistance of trial counsel (Ground 2B) is procedurally defaulted. Nor does Petitioner 19 engage with the R&R’s bases for its conclusion that Petitioner’s claim of ineffective 20 assistance of appellate counsel (Ground 2C) fails. As to these grounds, he does not 21 challenge the determination that Petitioner did not show that his appellate counsel was 22 ineffective for raising only a suppression claim and that Petitioner’s Brady claim is 23 meritless. (See Doc. 78 at 41-44.) Petitioner therefore concedes that the R&R’s conclusion 24 that Grounds 2B and 2C should be denied is correct. 25 Petitioner does not object to the R&R’s conclusion that Grounds 1D and 2D are not 26 barred by 28 U.S.C. § 2254(i), so the Court will adopt the R&R’s findings as to these 27 grounds. 28 Having overruled all of Petitioner’s objections to the R&R, the Court will accept 1 and adopt the R&R’s recommendation to deny all grounds of the Petition (Doc. 1.). 2 IV. 3 IT IS THEREFORE ORDERED that Petitioner’s objections (Doc. 85) are 4 OVERRULED, and the Report and Recommendation (Doc. 78) is ACCEPTED and 5 ADOPTED. 6 IT IS FURTHER ORDERED that the following claims in Petitioner’s Petition for 7 Writ of Habeas Corpus (Doc. 1) are DISMISSED with prejudice: 8 1. Ground 1A (exclusion of apartment search) as not cognizable under Stone v. 9 Powell; 10 2. Grounds 1D and 2D (PCR counsel ineffectiveness) as not cognizable under 11 § 2254(i); 12 3. Alternatively, Ground 1A (exclusion of apartment search regarding 13 motivation) as procedurally defaulted; 14 4. Grounds 1B (trial counsel ineffectiveness regarding Ground 1A), 1C 15 (appellate ineffectiveness regarding Ground 1A), and 2B (trial counsel 16 ineffectiveness regarding Brady) as procedurally defaulted; 17 5. Ground 2A (Brady) as procedurally barred on independent and adequate state 18 grounds. 19 IT IS FURTHER ORDERED that the remainder of the Petition (Doc. 1), including 20 Ground 2C (appellate ineffectiveness regarding Brady) is DENIED without prejudice. 21 IT IS FURTHER ORDERED that Petitioner’s request for the issuance of a 22 certificate of appealability is DENIED because jurists of reason would not find this Court’s 23 ruling debatable, see Slack v. McDaniel, 529 U.S. 473, 484 (2000), and Petitioner has not 24 made a substantial showing of the denial of a constitutional right, see 28 U.S.C. 25 § 2253(c)(2). 26 . . . . 27 . . . . 28 . . . . 1 IT IS FINALLY ORDERED directing the Clerk of Court to enter judgment and terminate this case. 3 Dated this 12th day of June, 2026. 4
Michael T. Liburdi 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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