1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Albert Dale Lewis, No. CV-19-00310-TUC-DCB
10 Petitioner, ORDER
11 v.
12 Charles Ryan, et al.,
13 Respondents. 14 15 This matter was referred to Magistrate Judge Eric J. Markovich, pursuant to the 16 Rules of Practice for the United States District Court, District of Arizona (Local Rules), 17 Rule (Civil) 72.1(a). He issued a Report and Recommendation (R&R) on May 17, 2021. 18 (Doc. 77: R&R). He recommends that the Petition for Habeas Corpus (28 U.S.C. § 2254) 19 be denied because the Petitioner’s ground for relief was procedurally defaulted in the state 20 court and is, therefore, barred from review by the federal court. The Court adopts the R&R 21 and denies the Petition. 22 STANDARD OF REVIEW 23 The duties of the district court, when reviewing a R&R of a magistrate judge, are 24 set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The 25 district court may “accept, reject, or modify, in whole or in part, the findings or 26 recommendations made by the magistrate judge.” Fed.R.Civ.P. 72(b), 28 U.S.C. § 27 636(b)(1). When the parties object to a R&R, “‘[a] judge of the [district] court shall make 28 a de novo determination of those portions of the [R&R] to which objection is made.’” 1 Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (quoting 28 U.S.C. § 636(b)(1)). When no 2 objections are filed, the district court does not need to review the R&R de novo. Wang v. 3 Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 4 1114, 1121-22 (9th Cir.2003) (en banc). To the extent that no objection has been made, 5 arguments to the contrary have been waived. McCall v. Andrus, 628 F.2d 1185, 1187 (9th 6 Cir. 1980) (failure to object to magistrate's report waives right to do so on appeal); see also, 7 Advisory Committee Notes to Fed. R. Civ. P. 72 (citing Campbell v. United States Dist. 8 Court, 501 F.2d 196, 206 (9th Cir. 1974) (when no timely objection is filed, the court need 9 only satisfy itself that there is no clear error on the face of the record in order to accept the 10 recommendation). 11 The parties were sent copies of the R&R and instructed they had 14 days to file 12 written objections. 28 U.S.C. § 636(b), see also, Federal Rule of Criminal Procedure 72 13 (party objecting to the recommended disposition has fourteen (14) days to file specific, 14 written objections). No objections were filed, but the Petitioner filed a Motion to Stay. 15 (Doc. 32.) He believes issues need to be addressed in state court. 16 REPORT AND RECOMMENDATION 17 Before a petition for habeas corpus can be presented to a federal court, the state 18 prisoner must exhaust his remedies in state court. 28 US.C. 2254(b)(1) & (c). Procedural 19 default occurs when a petitioner fails to fairly present his claim in the state courts, if “the 20 court to which the petitioner would be required to present his claim in order to meet the 21 exhaustion requirement would now find the claims procedurally barred.” (R&R (Doc 31) 22 at 10 (quoting Coleman 501 U.S. at 735 n.1)). This procedural bar prevents the state 23 prisoner from exhausting his remedies in state court and bars review here. This is the 24 posture of Petitioner’s case as accurately described by the Magistrate Judge and means that 25 there are no issues which may be addressed in state court. 26 Petitioner presents one ground for relief. He alleges his Fourth Amendment rights 27 were violated based on an unlawful arrest which flowed from an unlawful entry into the 28 curtilage of his home without a search warrant. At trial, Defendant filed a Motion to 1 Suppress because police lacked probable cause to arrest him. The motion was denied, and 2 the argument was reurged on direct appeal without success. In the state courts, the 3 Defendant filed two Petitions for Postconviction Relief (PCR) and argued ineffective 4 assistance of counsel (IAC) at trial for “failing to raise the issue in the motion to suppress 5 that the police illegally entered Petitioner’s curtilage under false pretexts without a warrant, 6 violating Petitioner’s Fourth Amendment right to a reasonable expectation of privacy.” 7 (R&R (Doc. 31) at 5.) The Magistrate Judge, correctly, found that presenting the Fourth 8 Amendment claim as the underlying violation for an IAC claim is not a fair presentation in 9 the state court of the Fourth Amendment ground for relief he makes here. Id. at 9, 11 (citing 10 See Lopez v. Schriro, 491 F.3d 1029, 1040 (9th Cir. 2007) (mere similarity insufficient to 11 exhaust claims; there must be substantial equivalent); Rose v. Palmateer, 395 F.3d 1108, 12 1112 (9th Cir 2005) (unlawfulness confession supporting IAC claim on PCR not fair 13 presentation of Fifth Amendment claim because while related, they are distinct claims with 14 separate elements of proof) (other citations omitted). 15 The Court agrees with the Magistrate Judge. The Petitioner failed to exhaust his 16 federal claim in state court. Because there are no state remedies available now to him, he 17 may not return to the state court for relief. The claim is properly described a procedurally 18 defaulted because the state court would now find the claim barred, pursuant to state law, 19 because the time for filing a state court petition has expired. This is the procedural posture 20 of the Petitioner’s Fourth Amendment claim that he presents as the ground for habeas relief. 21 Because Petitioner’s claim is procedurally defaulted, federal habeas review may occur only 22 in limited circumstances, which do not exist here. 1 Id. at 10-11, 16-18. 23 24 1 To overcome the prohibition on the federal court to review procedurally defaulted 25 claims, Petitioner must show cause to excuse the failure to comply with the state procedural rule and actual prejudice resulting from the alleged constitutional violation or that a 26 miscarriage of justice would result from the lack of review. (R&R at 16-17) (citations omitted). The Court notes that the state court of appeals got it right when it considered the 27 IAC claim based on the alleged Fourth Amendment violation: United States v. Perea-Rey, 680 F.3d 1179, 1189 (9th Cir.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Albert Dale Lewis, No. CV-19-00310-TUC-DCB
10 Petitioner, ORDER
11 v.
12 Charles Ryan, et al.,
13 Respondents. 14 15 This matter was referred to Magistrate Judge Eric J. Markovich, pursuant to the 16 Rules of Practice for the United States District Court, District of Arizona (Local Rules), 17 Rule (Civil) 72.1(a). He issued a Report and Recommendation (R&R) on May 17, 2021. 18 (Doc. 77: R&R). He recommends that the Petition for Habeas Corpus (28 U.S.C. § 2254) 19 be denied because the Petitioner’s ground for relief was procedurally defaulted in the state 20 court and is, therefore, barred from review by the federal court. The Court adopts the R&R 21 and denies the Petition. 22 STANDARD OF REVIEW 23 The duties of the district court, when reviewing a R&R of a magistrate judge, are 24 set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The 25 district court may “accept, reject, or modify, in whole or in part, the findings or 26 recommendations made by the magistrate judge.” Fed.R.Civ.P. 72(b), 28 U.S.C. § 27 636(b)(1). When the parties object to a R&R, “‘[a] judge of the [district] court shall make 28 a de novo determination of those portions of the [R&R] to which objection is made.’” 1 Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (quoting 28 U.S.C. § 636(b)(1)). When no 2 objections are filed, the district court does not need to review the R&R de novo. Wang v. 3 Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 4 1114, 1121-22 (9th Cir.2003) (en banc). To the extent that no objection has been made, 5 arguments to the contrary have been waived. McCall v. Andrus, 628 F.2d 1185, 1187 (9th 6 Cir. 1980) (failure to object to magistrate's report waives right to do so on appeal); see also, 7 Advisory Committee Notes to Fed. R. Civ. P. 72 (citing Campbell v. United States Dist. 8 Court, 501 F.2d 196, 206 (9th Cir. 1974) (when no timely objection is filed, the court need 9 only satisfy itself that there is no clear error on the face of the record in order to accept the 10 recommendation). 11 The parties were sent copies of the R&R and instructed they had 14 days to file 12 written objections. 28 U.S.C. § 636(b), see also, Federal Rule of Criminal Procedure 72 13 (party objecting to the recommended disposition has fourteen (14) days to file specific, 14 written objections). No objections were filed, but the Petitioner filed a Motion to Stay. 15 (Doc. 32.) He believes issues need to be addressed in state court. 16 REPORT AND RECOMMENDATION 17 Before a petition for habeas corpus can be presented to a federal court, the state 18 prisoner must exhaust his remedies in state court. 28 US.C. 2254(b)(1) & (c). Procedural 19 default occurs when a petitioner fails to fairly present his claim in the state courts, if “the 20 court to which the petitioner would be required to present his claim in order to meet the 21 exhaustion requirement would now find the claims procedurally barred.” (R&R (Doc 31) 22 at 10 (quoting Coleman 501 U.S. at 735 n.1)). This procedural bar prevents the state 23 prisoner from exhausting his remedies in state court and bars review here. This is the 24 posture of Petitioner’s case as accurately described by the Magistrate Judge and means that 25 there are no issues which may be addressed in state court. 26 Petitioner presents one ground for relief. He alleges his Fourth Amendment rights 27 were violated based on an unlawful arrest which flowed from an unlawful entry into the 28 curtilage of his home without a search warrant. At trial, Defendant filed a Motion to 1 Suppress because police lacked probable cause to arrest him. The motion was denied, and 2 the argument was reurged on direct appeal without success. In the state courts, the 3 Defendant filed two Petitions for Postconviction Relief (PCR) and argued ineffective 4 assistance of counsel (IAC) at trial for “failing to raise the issue in the motion to suppress 5 that the police illegally entered Petitioner’s curtilage under false pretexts without a warrant, 6 violating Petitioner’s Fourth Amendment right to a reasonable expectation of privacy.” 7 (R&R (Doc. 31) at 5.) The Magistrate Judge, correctly, found that presenting the Fourth 8 Amendment claim as the underlying violation for an IAC claim is not a fair presentation in 9 the state court of the Fourth Amendment ground for relief he makes here. Id. at 9, 11 (citing 10 See Lopez v. Schriro, 491 F.3d 1029, 1040 (9th Cir. 2007) (mere similarity insufficient to 11 exhaust claims; there must be substantial equivalent); Rose v. Palmateer, 395 F.3d 1108, 12 1112 (9th Cir 2005) (unlawfulness confession supporting IAC claim on PCR not fair 13 presentation of Fifth Amendment claim because while related, they are distinct claims with 14 separate elements of proof) (other citations omitted). 15 The Court agrees with the Magistrate Judge. The Petitioner failed to exhaust his 16 federal claim in state court. Because there are no state remedies available now to him, he 17 may not return to the state court for relief. The claim is properly described a procedurally 18 defaulted because the state court would now find the claim barred, pursuant to state law, 19 because the time for filing a state court petition has expired. This is the procedural posture 20 of the Petitioner’s Fourth Amendment claim that he presents as the ground for habeas relief. 21 Because Petitioner’s claim is procedurally defaulted, federal habeas review may occur only 22 in limited circumstances, which do not exist here. 1 Id. at 10-11, 16-18. 23 24 1 To overcome the prohibition on the federal court to review procedurally defaulted 25 claims, Petitioner must show cause to excuse the failure to comply with the state procedural rule and actual prejudice resulting from the alleged constitutional violation or that a 26 miscarriage of justice would result from the lack of review. (R&R at 16-17) (citations omitted). The Court notes that the state court of appeals got it right when it considered the 27 IAC claim based on the alleged Fourth Amendment violation: United States v. Perea-Rey, 680 F.3d 1179, 1189 (9th Cir. 2012) (knock and talk exception authorizes officers to enter 28 the curtilage to initiate a consensual conversation with residents of home). Id. at 7. 1 CONCLUSION 2 There are no objections and review has been waived. The Court nevertheless 3 reviews at a minimum, de novo, the Magistrate Judge’s conclusions of law. Robbins v. 4 Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (citing Turner v. Duncan, 158 F.3d 449, 455 5 (9th Cir. 1998) (conclusions of law by a magistrate judge reviewed de novo); Martinez v. 6 Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991) (failure to object standing alone will not 7 ordinarily waive question of law, but is a factor in considering the propriety of finding 8 waiver)). The Court finds the R&R to be thorough and well-reasoned, without any clear 9 error in law or fact. See United States v. Remsing, 874 F.2d 614, 617-618 (9th Cir. 1989) 10 (citing 28 U.S.C. § 636(b)(1)(A) as providing for district court to reconsider matters 11 delegated to magistrate judge when there is clear error or recommendation is contrary to 12 law). The Court accepts and adopts the R&R as the opinion of the Court, pursuant to 28 13 U.S.C. § 636(b)(1). For the reasons stated in the R&R, the Court denies the Petition for 14 Habeas Corpus Relief, Pursuant to 28 U.S.C. § 2254. 15 Accordingly, 16 IT IS ORDERED that the Motion to Stay (Doc. 32) is DENIED. 17 IT IS FURTHER ORDERED that the Report and Recommendation (Doc. 31) is 18 adopted as the opinion of the Court. 19 IT IS FURTHER ORDERED that the Petition for Habeas Corpus (28 U.S.C. § 20 2254) (Doc. 1) is DENIED. 21 IT IS FURTHER ORDERED that the Clerk of the Court shall enter Judgment 22 accordingly. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 IT IS FURTHER ORDERED that in the event Petitioner files an appeal, the Court 2|| declines to issue a certificate of appealability, pursuant to Rule 11(a) of the Rules 3|| Governing Section 2254, cases because reasonable jurists would not find the Court’s 4|| procedural ruling debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). 5 Dated this 28th day of June, 2021. 6 SS . SY ° Honorabje David C. But 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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