Miller v. Shinn

• Court: District Court, D. Arizona
• Decided: August 24, 2020
• Docket: 2:19-cv-02686
• Status: Unknown

Opinion

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

David J ohn Miller, ) No. CV 19-02686-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), the Answer from the Respondents (Doc. 10), and the 17 Petitioner’s Reply. (Doc. 11) Additionally, the Court is in receipt of the Report and 18 Recommendation of the Magistrate Judge (Doc. 14), Petitioner’s Objections (Doc. 17), and 19 Petitioner’s Application for Certificate of Appealability from the District Court. (Doc. 18) 20 In the instant Petition, the Petitioner alleges: (1) the trial counsel failed to interview 21 2 witnesses that the Petitioner believed would have provided exculpatory information; (2 22 and 3) the trial counsel failed to object to testimonial hearsay and failed to object to the 23 prosecutor’s alleged misconduct during closing arguments; (4) the appellate counsel was 24 ineffective because he failed to raise the prosecutor’s alleged misconduct and that 25 cumulative errors violated Petitioner’s Sixth Amendment and due process rights. (Doc. 1 26 at 4-31) 27 A district judge “may accept, reject, or modify, in whole or in part, the findings or 28 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). When a party files a 1 timely objection to an R&R, the district judge reviews de novo those portions of the R&R 2 that have been “properly objected to.” Fed. R. Civ. P. 72(b). A proper objection requires 3 specific written objections to the findings and recommendations in the R&R. See United 4 States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); 28 U.S.C. § 636(b) (1). It 5 follows that the Court need not conduct any review of portions to which no specific 6 objection has been made. See Reyna-Tapia, 328 F.3d at 1121; see also Thomas v. Arn, 474 7 U.S. 140, 149 (1985) (discussing the inherent purpose of limited review is judicial 8 economy). Further, a party is not entitled as of right to de novo review of evidence or 9 arguments which are raised for the first time in an objection to the R&R, and the Court’s 10 decision to consider them is discretionary. United States v. Howell, 231 F.3d 615, 621-622 11 (9th Cir. 2000). 12 The Court has carefully undertaken an extensive review of the sufficiently 13 developed record. The Petitioner’s objections to the findings and recommendations of the 14 Magistrate Judge have also been thoroughly considered. 15 After conducting a de novo review of the issues and objections, the Court reaches 16 the same conclusions reached by Judge Bibles. Having carefully reviewed the record, the 17 Petitioner has presented arguments that appear to be unsupported conclusions devoid of 18 merit. Furthermore, this Court also failed to find cumulative error that deprived the 19 Petitioner of due process and Sixth amendment rights. The R&R will be adopted in full. 20 Accordingly, 21 IT IS ORDERED: 22 1. That the Magistrate Judge’s Report and Recommendation (Doc. 14) is 23 accepted and adopted by the Court; 24 2. That the Petitioner’s Objections (Doc. 17) are overruled; 25 3. That the Petitioner’s Application for Certificate of Appealability from the 26 District Court (Doc. 18) is denied as moot. 27 4. That the Petition for Writ of Habeas Corpus (Doc. 1) is denied and this action 28 is dismissed with prejudice; 1 5. That a Certificate of Appealability and leave to proceed in forma pauperis appeal are denied because the dismissal of the Petition is justified; and 3 6. That the Clerk of Court shall enter judgment according and terminate this action. 5 Dated this 24th day of August 2020. 6

g United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28