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Gauldin v. Beresky, CV-17-01307-PHX-SPL. (2018)

Court: District Court, D. Arizona Number: infdco20180511934 Visitors: 16
Filed: May 10, 2018
Latest Update: May 10, 2018
Summary: ORDER STEVEN P. LOGAN , District Judge . The Court has before it Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 2254. (Doc. 1.) The Court has also received Respondents' Limited Answer (Doc. 8), Petitioner's Reply and Request for Evidentiary Hearing (Doc.9), the Report and Recommendation of the Magistrate Judge (Doc. 10), Petitioner's Objections (Doc. 13), and the Response to the Petitioner's Objections. (Doc. 14.) Petitioner argues in Ground One that the Arizona St
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ORDER

The Court has before it Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) The Court has also received Respondents' Limited Answer (Doc. 8), Petitioner's Reply and Request for Evidentiary Hearing (Doc.9), the Report and Recommendation of the Magistrate Judge (Doc. 10), Petitioner's Objections (Doc. 13), and the Response to the Petitioner's Objections. (Doc. 14.)

Petitioner argues in Ground One that the Arizona State Court of Appeals violated his Fourteenth Amendment Rights. (Doc. 1 at 6.) In Ground Two, Petitioner argues the Arizona State Court of Appeals violated his Due Process Rights. (Id. at 7.) Respondents argue the petition must be dismissed with prejudice because Petitioner failed to offer new evidence to prove that he is actually innocent, and cannot excuse his procedural defaults. (Doc. 8, 3-18.) Judge Pyle concluded the Petitioner's claims are not cognizable under 28 U.S.C. § 2254 as questions solely of state law. Alternatively, Judge Pyle further found the Petitioner Grounds are precluded without excuse. (Doc. 10, 4-17.)

A district judge "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b). When a party files a timely objection to an R&R, the district judge reviews de novo those portions of the R&R that have been "properly objected to." Fed. R. Civ. P. 72(b). A proper objection requires specific written objections to the findings and recommendations in the R&R. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); 28 U.S.C. § 636(b)(1). It follows that the Court need not conduct any review of portions to which no specific objection has been made. See Reyna-Tapia, 328 F.3d at 1121; see also Thomas v. Arn, 474 U.S. 140, 149 (1985) (discussing the inherent purpose of limited review is judicial economy). Further, a party is not entitled as of right to de novo review of evidence or arguments which are raised for the first time in an objection to the R&R, and the Court's decision to consider them is discretionary. United States v. Howell, 231 F.3d 615, 621-622 (9th Cir. 2000).

The Court has undertaken an extensive review of the sufficiently developed record. The Petitioner's objections to the findings and recommendations along with the Petitioner's request for an evidentiary hearing have been carefully considered. After conducting a de novo review of the issues and objections, the Court reaches the same conclusions reached by Judge Pyle.

Having carefully reviewed the record, the Petitioner has not shown that he is entitled to habeas relief. The R&R will be adopted in full. Accordingly,

IT IS ORDERED:

1. That the Magistrate Judge's Report and Recommendation (Doc. 10) is accepted and adopted by the Court;

2. That the Petitioner's Objections (Doc. 13) are overruled;

3. That the Petitioner's Request for an Evidentiary Hearing (Doc. 9) is denied;

4. That the Petition for Writ of Habeas Corpus (Doc. 1) is denied and this action is dismissed with prejudice;

5. That a Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied because the dismissal of the Petition is justified by a plain procedural bar and reasonable jurists would not find the ruling debatable; and

6. That the Clerk of Court shall terminate this action.

Source:  Leagle

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