Perry v. Shinn

6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Erin Lee Perry, No. CV-19-00275-PHX-JJT (JFM) 10 Petitioner, ORDER v. Charles L. Ryan, et al., 13 Respondents.

14 At issue is the Report and Recommendation (Doc. 30) (“R&R”) submitted in this matter by United States Magistrate Judge James F. Metcalf, recommending the Court dismiss with prejudice Ground 3 of the Amended Petition for Habeas Corpus (Doc. 8) and deny the remaining Grounds 1, 2 and 4 of the Petition. In the R&R, Judge Metcalf warned Petitioner he had 14 days from the date of its service to file any objections thereto, and failure to timely file any objections “will be considered a waiver of [Petitioner’s] right to de novo consideration of the issues,” per United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003), and a waiver if his right to appellate review of any findings of fact the Court makes in this Order pursuant to the R&R. (Doc. 30 at 17.)

23 It has been over three months since entry of the R&R and Petitioner filed no objections; he has therefore waived the above rights. Even if the Court reviewed the R&R on its merits, however, it would conclude that Judge Metcalf’s recommendations and findings are all legally sound and supported by the record.

27 Judge Metcalf correctly concluded in his exhaustive R&R that Ground 3 is procedurally defaulted without any showing of excuse or cause, and Petitioner did not 1] argue actual innocence in his Petition. It was not raised to the state court at any level and is now procedurally barred by state rule. The Court therefore would dismiss with prejudice || Ground 3 of the Petition.

4 Grounds 1, 2 and 4, raising issues of ineffective assistance of trial counsel, were properly raised before the state courts in Petitioner’s Petition for Post-Conviction Relief, || so the Court would evaluate those grounds on their merits. But as Judge Metcalf concluded, 7\| the Arizona court made reasonable factual determinations based on its review of the || evidence before it, principally defense counsel’s notes of consultation with Petitioner, as 9|| well as docket entries and proceeding transcripts reflecting her actions and the basis for her || decisions. Moreover this Court would agree with Judge Metcalf that the last state court to || review Grounds |, 2 and 4 did not render any decision on those issues that was contrary to oranunreasonable application clearly established federal law, per the standard for effective || assistance set forth in Strickland v. Washington, 466 U.S. 668 (1984). The Court therefore will deny the Petition as to grounds 1, 2 and 4.

15 IT IS ORDERED adopting the Report and Recommendation (Doc. 30) including its || underlying reasoning.

17 IT IS FURTHER ORDERED dismissing with prejudice Ground 3 of the Petition || for Habeas Corpus (Doc. 8) and denying the remainder of the Petition.

19 IT IS FURTHER Ordered denying a Certificate of Appealability, upon a finding || that: 1) as regards the Court’s dismissal on procedural grounds of Ground 3, jurists of || reason would not find the procedural ruling debatable; and 2) regarding the Court’s denial || of the remaining Grounds 1, 2 and 4 on the merits of the constitutional claims, reasonable || jurists would not find that assessment of those claims debatable or wrong.

24 IT IS FURTHER ORDERED directing the Clerk of Court to terminate this matter.

25 Dated this 4th day of May, 2020. CN 26 “wok: 7 wefehlee— Unifga StatesDistrict Judge -2-