1 WO 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE DISTRICT OF ARIZONA
7 Jesse Gilbert Orantez, No. CV-19-00540-TUC-DCB
8 Petitioner, ORDER
9 v.
10 David Shinn, et al.,
11 Respondents. 12 13 This matter was referred to Magistrate Judge Leslie A. Bowman, pursuant to Rules 14 of Practice for the United States District Court, District of Arizona (Local Rules), Rule 15 (Civil) 72.1(a). On July 31, 2020, Magistrate Judge Bowman issued a Report and 16 Recommendation (R&R). (Doc. 16.) She recommends that the Court dismiss the Petition 17 for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. 2254, because the Petitioner failed 18 to exhaust his claims in the state courts. The Court accepts and adopts the Magistrate 19 Judge’s R&R as the findings of fact and conclusions of law of this Court and dismisses the 20 Petition as procedurally defaulted. The Court, alternatively, finds that the alleged 21 constitutional claims of error lack merit. 22 STANDARD OF REVIEW 23 The duties of the district court in connection with a R&R by 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). Where 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)). 2 This Court's ruling is a de novo determination as to those portions of the R&R to 3 which there are objections. 28 U.S.C. § 636(b)(1)(C); Wang v. Masaitis, 416 F.3d 992, 4 1000 n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th 5 Cir.2003) (en banc). To the extent that no objection has been made, arguments to the 6 contrary have been waived. Fed. R. Civ. P. 72; see 28 U.S.C. § 636(b)(1) (objections are 7 waived if they are not filed within fourteen days of service of the R&R), see also McCall 8 v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980) (failure to object to Magistrate's report 9 waives right to do so on appeal); Advisory Committee Notes to Fed. R. Civ. P. 72 (citing 10 Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974) (when no timely 11 objection is filed, the court need only satisfy itself that there is no clear error on the face of 12 the record in order to accept the recommendation)). 13 The parties were sent copies of the R&R and instructed that, pursuant to 28 U.S.C. 14 § 636(b)(1), they had 14 days to file written objections. See also, Fed. R. Civ. P. 72 (party 15 objecting to the recommended disposition has fourteen (14) days to file specific, written 16 objections). The Court has considered the objections filed by the Petitioner, and the parties’ 17 briefs considered by the Magistrate Judge in deciding the Petition. 18 OBJECTIONS 19 The Petitioner objects to the Magistrate Judge’s conclusion that the constitutional 20 claims in the Petition are procedurally defaulted because the Petitioner failed to raise them 21 in the state courts. The Court has reviewed the record as suggested by the Petitioner in his 22 Objection to the R&R, including the Opening Brief filed in Division Two of the Court of 23 Appeals for the State of Arizona supporting his Rule 403 state challenge where Petitioner 24 asserts he referenced the constitutional law supporting Claim 1 of the Petition. For claim 2 25 of the Petition, he relies on constitutional law supporting Arizona Rules of Criminal 26 Procedure, Rule 19.3(b)c, which was the subject of his state post-judgment proceedings. 27 Nothing in the citations found in the state court briefs or the research references to 28 the Arizona Rule of Criminal Procedure, Rule 19.3, alerted the state appellate court to the 1 Fifth, Sixth, and Fourteenth Amendment due process violations he raises in his habeas 2 Petition. These indirect, general, references are not the type of fair presentation required to 3 avoid procedural default for failing to exhaust claims in the state courts. As explained by 4 the Magistrate Judge “‘Fair presentation requires that the petitioner describe in the State 5 proceedings both the operative facts and the federal legal theory on which his claim is 6 based so the State courts have a ‘fair opportunity’ to apply controlling legal principles to 7 the facts bearing upon his constitutional claim.’” (R&R (Doc. 16) (quoting Davis v. Silva, 8 511 F3d 1005, 1008-09 (9th Cir. 2008)) (emphasis added). The Court agrees with the 9 Magistrate Judge that the claims in the Petition were procedurally defaulted, not excused, 10 and the Petition must, therefore, be dismissed under the exhaustion rule. 11 CONCLUSION 12 After de novo review of the issues raised in Petitioner’s Objection, the Court adopts 13 the R&R, and for the reasons stated in the R&R, the Court dismisses the Petition. The Court 14 finds the claims are procedurally defaulted and must be dismissed for failure to exhaust the 15 constitutional claims in the state courts. Alternatively, the Court finds no merit to the 16 claims. The Court adopts the Magistrate Judge’s explanation of the lack of constitutional 17 merit in claim 2, which charged the trial court violated the due process clause of the 18 Fourteenth Amendment by allowing improper impeachment of a witness. (R&R (Doc 16) 19 at 7-10.) The Court finds claim 1 is equally lacking in constitutional merit. 20 Under the Due Process Clause to the Fourteenth Amendment, there must be 21 prejudice to the fundamental fairness that is essential to the very concept of justice. Lisenba 22 v. People of State of California, 314 U.S. 219, 236–37 (1941); see Hayes v. Ayers, 632 23 F.3d 500, 512, 515 (9th Cir.
Free access — add to your briefcase to read the full text and ask questions with AI
1 WO 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE DISTRICT OF ARIZONA
7 Jesse Gilbert Orantez, No. CV-19-00540-TUC-DCB
8 Petitioner, ORDER
9 v.
10 David Shinn, et al.,
11 Respondents. 12 13 This matter was referred to Magistrate Judge Leslie A. Bowman, pursuant to Rules 14 of Practice for the United States District Court, District of Arizona (Local Rules), Rule 15 (Civil) 72.1(a). On July 31, 2020, Magistrate Judge Bowman issued a Report and 16 Recommendation (R&R). (Doc. 16.) She recommends that the Court dismiss the Petition 17 for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. 2254, because the Petitioner failed 18 to exhaust his claims in the state courts. The Court accepts and adopts the Magistrate 19 Judge’s R&R as the findings of fact and conclusions of law of this Court and dismisses the 20 Petition as procedurally defaulted. The Court, alternatively, finds that the alleged 21 constitutional claims of error lack merit. 22 STANDARD OF REVIEW 23 The duties of the district court in connection with a R&R by 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). Where 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)). 2 This Court's ruling is a de novo determination as to those portions of the R&R to 3 which there are objections. 28 U.S.C. § 636(b)(1)(C); Wang v. Masaitis, 416 F.3d 992, 4 1000 n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th 5 Cir.2003) (en banc). To the extent that no objection has been made, arguments to the 6 contrary have been waived. Fed. R. Civ. P. 72; see 28 U.S.C. § 636(b)(1) (objections are 7 waived if they are not filed within fourteen days of service of the R&R), see also McCall 8 v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980) (failure to object to Magistrate's report 9 waives right to do so on appeal); Advisory Committee Notes to Fed. R. Civ. P. 72 (citing 10 Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974) (when no timely 11 objection is filed, the court need only satisfy itself that there is no clear error on the face of 12 the record in order to accept the recommendation)). 13 The parties were sent copies of the R&R and instructed that, pursuant to 28 U.S.C. 14 § 636(b)(1), they had 14 days to file written objections. See also, Fed. R. Civ. P. 72 (party 15 objecting to the recommended disposition has fourteen (14) days to file specific, written 16 objections). The Court has considered the objections filed by the Petitioner, and the parties’ 17 briefs considered by the Magistrate Judge in deciding the Petition. 18 OBJECTIONS 19 The Petitioner objects to the Magistrate Judge’s conclusion that the constitutional 20 claims in the Petition are procedurally defaulted because the Petitioner failed to raise them 21 in the state courts. The Court has reviewed the record as suggested by the Petitioner in his 22 Objection to the R&R, including the Opening Brief filed in Division Two of the Court of 23 Appeals for the State of Arizona supporting his Rule 403 state challenge where Petitioner 24 asserts he referenced the constitutional law supporting Claim 1 of the Petition. For claim 2 25 of the Petition, he relies on constitutional law supporting Arizona Rules of Criminal 26 Procedure, Rule 19.3(b)c, which was the subject of his state post-judgment proceedings. 27 Nothing in the citations found in the state court briefs or the research references to 28 the Arizona Rule of Criminal Procedure, Rule 19.3, alerted the state appellate court to the 1 Fifth, Sixth, and Fourteenth Amendment due process violations he raises in his habeas 2 Petition. These indirect, general, references are not the type of fair presentation required to 3 avoid procedural default for failing to exhaust claims in the state courts. As explained by 4 the Magistrate Judge “‘Fair presentation requires that the petitioner describe in the State 5 proceedings both the operative facts and the federal legal theory on which his claim is 6 based so the State courts have a ‘fair opportunity’ to apply controlling legal principles to 7 the facts bearing upon his constitutional claim.’” (R&R (Doc. 16) (quoting Davis v. Silva, 8 511 F3d 1005, 1008-09 (9th Cir. 2008)) (emphasis added). The Court agrees with the 9 Magistrate Judge that the claims in the Petition were procedurally defaulted, not excused, 10 and the Petition must, therefore, be dismissed under the exhaustion rule. 11 CONCLUSION 12 After de novo review of the issues raised in Petitioner’s Objection, the Court adopts 13 the R&R, and for the reasons stated in the R&R, the Court dismisses the Petition. The Court 14 finds the claims are procedurally defaulted and must be dismissed for failure to exhaust the 15 constitutional claims in the state courts. Alternatively, the Court finds no merit to the 16 claims. The Court adopts the Magistrate Judge’s explanation of the lack of constitutional 17 merit in claim 2, which charged the trial court violated the due process clause of the 18 Fourteenth Amendment by allowing improper impeachment of a witness. (R&R (Doc 16) 19 at 7-10.) The Court finds claim 1 is equally lacking in constitutional merit. 20 Under the Due Process Clause to the Fourteenth Amendment, there must be 21 prejudice to the fundamental fairness that is essential to the very concept of justice. Lisenba 22 v. People of State of California, 314 U.S. 219, 236–37 (1941); see Hayes v. Ayers, 632 23 F.3d 500, 512, 515 (9th Cir. 2011) (discussing prejudice needed to support 6th Amendment 24 confrontation clause and 14th Amendment claim; due process guarantees “the fundamental 25 elements of fairness in a criminal trial.”) After being instructed by the Court that the 26 codefendant witness’ testimony should not suggest any prior bad acts, the prosecutor asked 27 him whether the defendant asked him to use his car in a home invasion. The answer was: 28 “that Mr. Orantez has police lights equipped for that car, and ‘they’ were using his vehicle 1|| ‘for, you know.’ (R.T. 7/14/16, p. 17, lines 22-25). ‘They were just using it to do...’ (R.T. 2|| 7/14/16, p. 18, line 8).” (R&R at 6 (quoting Amended Petition (Doc. 4)).! The Petitioner 3 || asserts this answer led the jury to believe the defendant committed other prior bad acts and || violated his constitutional due process right to be tried only for the charged offense. The □□ defendant sought, and the trial court denied a mistrial, but the trial court did instruct the || jury to disregard the answer. This Court finds the instruction would have addressed prejudice, if there was any. At worst the answer was confusing. Nothing about the question 8 || or answer suggested that the co-defendant was testifying about any other act except for the instant offense. 10 The Court, alternatively, dismisses both claims for lack of constitutional merit. 11 Accordingly, 12 IT IS ORDERED that after a full and independent review of the record in respect to 13 || the objections, the Magistrate Judge's Report and Recommendation (Doc. 16) is accepted || and adopted as the findings of fact and conclusions of law of this Court. 15 IT IS FURTHER ORDERED that the Amended Petition (Doc. 4) is DISMISSED 16 || with prejudice. 17 IT IS FURTHER ORDERED that the Clerk of the Court shall enter Judgment 18 || accordingly. 19 IT IS FURTHER ORDERED that in the event Petitioner files an appeal, the Court declines to issue a certificate of appealability, pursuant to Rule 11(a) of the Rules Governing Section 2254 cases because reasonable jurists would not find the Court’s 22 || procedural ruling debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). 23 Dated this 25th day of September, 2020. 24 25 26 = +— 27 United Ct Judge 28 ' The transcript of record was not provided. -_4-