Joseph McElyea Jr. v. Charles L. Ryan

Ninth Circuit

Joseph McElyea Jr. v. Charles L. Ryan

457 F. App'x 646

CourtCourt of Appeals for the Ninth Circuit

DecidedNovember 2, 2011

Docket09-15429

StatusUnpublished

This text of 457 F. App'x 646 (Joseph McElyea Jr. v. Charles L. Ryan) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Joseph McElyea Jr. v. Charles L. Ryan, 457 F. App'x 646 (9th Cir. 2011).

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Opinion

MEMORANDUM ***

The Arizona state court did not unreasonably apply clearly established Supreme Court law when it rejected Joseph Lowell MeElyea’s claim that he received ineffective assistance of counsel. 28 U.S.C. § 2254(d)(1); see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because there is no support in the record that McElyea’s counsel knew or had reason to know of the arresting officers’ alleged misconduct, the state court could reasonably determine that McElyea’s counsel did not perform deficiently by failing to challenge the admissibility of McElyea’s confession. See Bobby v. Van Hook, — U.S. -, 130 S.Ct. 13, 19, 175 L.Ed.2d 255 (2009) (per curiam). Further, even if counsel’s performance had been deficient, McElyea suffered no prejudice, given that he independently testified to the contents of his post-arrest statements at trial. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

The district court did not err by declining to conduct an evidentiary hearing because, even assuming McElyea made reasonable efforts to investigate and pursue his claims in state court, 28 U.S.C. § 2254(e)(2), he has not alleged specific facts which, if true, would entitle him to relief. See West v. Ryan, 608 F.3d 477, 485 (9th Cir.2010), cert. denied, - U.S. -, 131 S.Ct. 1473, 179 L.Ed.2d 314 (2011).

Finally, the district court did not err in declining to hear McElyea’s untimely objections to the magistrate judge’s report and recommendation because McElyea neither presented sufficient evidence to overcome Rule 5(b)’s presumption of service, Fed.R.Civ.P. 5(b)(2)(C), nor claimed that the district court’s failure to consider his general, untimely objection constituted a denial of a constitutional right, Hiivala v. Wood, 195 F.3d 1098, 1104 (9th Cir.1999) (per curiam).

AFFIRMED.

***

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

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MEMORANDUM ***

The Arizona state court did not unreasonably apply clearly established Supreme Court law when it rejected Joseph Lowell MeElyea’s claim that he received ineffective assistance of counsel. 28 U.S.C. § 2254(d)(1); see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because there is no support in the record that McElyea’s counsel knew or had reason to know of the arresting officers’ alleged misconduct, the state court could reasonably determine that McElyea’s counsel did not perform deficiently by failing to challenge the admissibility of McElyea’s confession. See Bobby v. Van Hook, — U.S. -, 130 S.Ct. 13, 19, 175 L.Ed.2d 255 (2009) (per curiam). Further, even if counsel’s performance had been deficient, McElyea suffered no prejudice, given that he independently testified to the contents of his post-arrest statements at trial. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

The district court did not err by declining to conduct an evidentiary hearing because, even assuming McElyea made reasonable efforts to investigate and pursue his claims in state court, 28 U.S.C. § 2254(e)(2), he has not alleged specific facts which, if true, would entitle him to relief. See West v. Ryan, 608 F.3d 477, 485 (9th Cir.2010), cert. denied, - U.S. -, 131 S.Ct. 1473, 179 L.Ed.2d 314 (2011).

Finally, the district court did not err in declining to hear McElyea’s untimely objections to the magistrate judge’s report and recommendation because McElyea neither presented sufficient evidence to overcome Rule 5(b)’s presumption of service, Fed.R.Civ.P. 5(b)(2)(C), nor claimed that the district court’s failure to consider his general, untimely objection constituted a denial of a constitutional right, Hiivala v. Wood, 195 F.3d 1098, 1104 (9th Cir.1999) (per curiam).

AFFIRMED.

***

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

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