Gibson v. Ryan

[5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] Eric Sh aw Gibson, ) No. CV-17-03763-PHX-SPL ) [9] ) 10 Petitioner, ) ORDER v. ) ) [11] ) Charles L. Ryan, 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. 18), and the 17 Petitioner’s Reply. (Doc. 20) Additionally, the Court is in receipt of the Supplement to the 18 Answer from the Respondent (Doc. 23), the Report and Recommendation of the Magistrate 19 Judge (Doc. 24), and the Petitioner’s Objections. (Doc. 27) 20 In the instant Petition, the Petitioner argues the performance of his trial and 21 appellant counsel were ineffective for several reasons. (Doc. 1 at 6-7) Additionally, the 22 Petitioner argues defective charging in the initial stages due to him receiving an 23 Information and Direct Complaint instead of an Indictment. (Id. at 8) 24 A district judge “may accept, reject, or modify, in whole or in part, the findings or 25 recommendations made by the magistrate judge.” 28 U.S.C. § 636 (b). When a party files a 26 timely objection to an R&R, the district judge reviews de novo those portions of the R&R 27 that have been “properly objected to.” Fed. R. Civ. P. 72(b). A proper objection requires 28 specific written objections to the findings and recommendations in the R&R. See United 1 States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); 28 U.S.C. § 636 (b) (1). It 2 follows that the Court need not conduct any review of portions to which no specific 3 objection has been made. See Reyna-Tapia, 328 F.3d at 1121 ; see also Thomas v. Arn, 474 4 U.S. 140, 149 (1985) (discussing the inherent purpose of limited review is judicial 5 economy). Further, a party is not entitled as of right to de novo review of evidence or 6 arguments which are raised for the first time in an objection to the R&R, and the Court’s 7 decision to consider them is discretionary. United States v. Howell, 231 F.3d 615 , 621-622 8 (9th Cir. 2000). 9 The Court has carefully undertaken an extensive review of the sufficiently 10 developed record. The Petitioner’s objections to the findings and recommendations have 11 also been thoroughly considered. 12 After conducting a de novo review of the issues and objections, the Court reaches 13 the same conclusions reached by Judge Metcalf. Having carefully reviewed the record, the 14 Petitioner has not shown that he is entitled to habeas relief. The R&R will be adopted in 15 full. Accordingly, 16 IT IS ORDERED: 17 1. That the Magistrate Judge’s Report and Recommendation (Doc. 24) is 18 accepted and adopted by the Court; 19 2. That the Petitioner’s Objections (Doc. 27) are overruled; 20 3. That the Petition for Writ of Habeas Corpus (Doc. 1) is denied and this action 21 is dismissed with prejudice; 22 4. That a Certificate of Appealability and leave to proceed in forma pauperis 23 on appeal are denied because the dismissal of the Petition is justified by a plain procedural 24 bar and reasonable jurists would not find the ruling debatable; and 25 /// 26 /// 27 /// [28] 1 5. That the Clerk of Court shall enter judgment accordingly and terminate this action. 3 Dated this 11" day of July 2019. [4] 6 United States District kidge