NOT FOR PUBLICATION

ORDER

JOHN J. TUCHI, District Judge.

At issue is Petitioner Sergio F. Gonzalez-Barrera's Petition under 28 U.S.C. §2254 for Writ of Habeas Corpus (Doc. 1). United States Magistrate Judge James F. Metcalf issued a Report and Recommendation ("R&R") in the matter recommending denial and dismissal of the Petition (Doc. 8). The time to object passed over five months ago and no party has objected, timely or otherwise. The Court thus may accept the R&R without further review. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). The Court nonetheless has conducted its own review of the Petition, and for the reasons set forth in the R&R, it will deny and dismiss the Petition.

In the R&R, Judge Metcalf thoroughly analyzed the issues involved in the instant Petition, and because this Court will adopt the recommendations set forth in the R&R, it will not restate those issues or their resolution here in detail. The R&R correctly concluded that Petitioner failed to raise what he now presents as Ground Two in the Petition—a federal due process claim attendant to the state court's alleged failure to weigh mitigating and aggravating factors at sentencing—and thus that claim is unexhausted and now procedurally barred. While Petitioner argues his federal claim was obvious, Judge Metcalf correctly notes that "obviousness is not sufficient." (Doc. 19 at p. 25.) See Insyxiengmay v. Morgan, 403 F.3d 657, 68 (9th Cir, 2005).

Petitioner's Ground Three—arguing the prosecution violated the plea agreement by emphasizing the sentence Petitioner would have received had he not accepted the plea agreement and gone to trial—was properly exhausted but, as Judge Metcalf correctly found, fails on its merits. The PCR court found that the prosecution had lived up to its agreement in recommending, and continuing to recommend, a thirteen year sentence to the sentencing judge. The Arizona Court of Appeals, in reviewing the PCR court's findings, endorsed and adopted them on this point. As Judge Metcalf found, Petitioner has identified no mistake of fact in those findings, nor has he shown how the decision was either contrary to or an unreasonable application of federal law. Ground Three will be denied on the merits.

Petitioner's Ground One—wherein he argues his sentence violated the Eighth Amendment's prohibition against cruel and unusual punishment—is also properly denied. Judge Metcalf found in the first instance that Petitioner waived this claim in his plea agreement. The Court has become aware of a fairly recent case, Lemke v. Ryan, which potentially calls into question the validity of the waiver. 719 F.3d 1093 (9th Cir. 2013). Nonetheless, Judge Metcalf also analyzed Ground One on the merits and concluded correctly that, even absent a waiver, the claim failed. (Doc. 19 at pp. 33-42.) After correctly concluding that the applicable standard of review on this issue was de novo, as the state court decided the issue not on the merits but upon the application of a procedural bar, Judge Metcalf applied a proportionality analysis as required under federal law. The Eighth Amendment forbids sentences that are "grossly disproportionate" to the crime. Harmelin v. Michigan, 501 U.S. 957, 1001 (1991). Upon a review of the circumstances of the offense gleaned from the record on review, and also set forth in great detail in the R&R, the Court agrees with Judge Metcalf that while the sentence in this matter is "substantial, and even arguably disproportionate....it is not grossly disproportionate." (Doc. 19 at p. 40.) Petitioner's Ground One fails on the merits.

IT IS ORDERED adopting Magistrate Judge Metcalf's R&R (Doc. 19) in its entirety and incorporating same into this Order.

IT IS FURTHER ORDERED denying the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) and dismissing this matter with prejudice.

IT IS FURTHER ORDERED denying a Certificate of Appealability and leave to proceed in forma pauperis on appeal in this matter because the dismissal of the instant Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable.