Flowers v. Shinn

[5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] Tiger F lowers, Jr., ) No. CV 19-04975-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. 7), and the Petitioner’s 17 Reply to Respondent’s Answer. (Docs. 11 and 12) Additionally, the Court is in receipt of 18 the Report and Recommendation of the Magistrate Judge (Doc. 13), the Petitioner’s 19 Objections (Doc. 21), and the Response to the Petitioner’s Objections (Doc. 22). 20 In the instant Petition, the Petitioner alleges: (1) ineffective assistance of trial 21 counsel for failing to challenge the admissibility of statements made by Petitioner’s wife; 22 (2) ineffective assistance of trial counsel for failing to object to the prosecutor’s reference, 23 during closing arguments, erroneously identifying Petitioner’s DNA being present on the 24 victim; and (3) the trial court committed abuse of discretion by granting the prosecution’s 25 motion to admit a co-conspirator statement, in violation of Petitioner’s Sixth Amendment 26 right to confront witnesses against him. (Docs. 1-3 at 1-39) 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 have 14 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 the magistrate judge. The R&R will be adopted in full. 17 Accordingly, 18 IT IS ORDERED: 19 1. That the Magistrate Judge’s Report and Recommendation (Doc. 13) is 20 accepted and adopted by the Court; 21 2. That the Petitioner’s Objections (Doc. 21) are overruled; 22 3. That the Petition for Writ of Habeas Corpus (Doc. 1) is denied and this action 23 is dismissed with prejudice; 24 4. That a Certificate of Appealability and leave to proceed in forma pauperis 25 on appeal are denied because the dismissal of the Petition is justified by a plain procedural 26 bar and reasonable jurists would not find the ruling debatable; and 27 /// 28 /// 1 5. That the Clerk of Court shall enter judgment according and terminate this action. 3 Dated this 20th day of October 2020. [4] 6 United States District kadge