Opinion
CV-14-2325-TUC-DCB
06-12-2017
Richard Jo Carrillo, Petitioner, v. Charles L. Ryan, et al., Respondents.
ORDER
This matter was referred to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1)(B) and the local rules of practice of this Court for a Report and Recommendation (R&R) on the Petition for Writ of Habeas Corpus (Doc. 1). Before the Court is the Magistrate Judge's Report and Recommendation (Doc. 20). The Magistrate Judge recommends to the Court that the Petition for Writ of Habeas Corpus may be denied and the matter dismissed. The Petitioner filed Objections (Doc. 21).
STANDARD OF REVIEW
When objection is made to the findings and recommendation of a magistrate judge, the district court must conduct a de novo review. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).
PETITIONER'S OBJECTIONS
Petitioner abandons Grounds I and IV for purposes of raising them in the Objections and therefore the R&R is adopted, without further discussion here, as the findings and conclusions of this Court on Grounds I and IV.
Petitioner raises again Grounds II and III in his Objections, but the objections are devoid of any new legal argument or evidence. Basically his objections remain with reference to Ground II that he was deprived of a fair trial based on juror bias and the failure of the trial court to grant a mistrial. He argues that the jury pool was improperly aware of his prior DUI convictions and that it was impossible to properly sanitize his trial from preconceived notions and bias. With reference to Ground III, Petitioner objects to the use of a blood sample taken at the hospital without his permission as evidence during the trial. (Doc. 21 at 3.) This was Petitioner's argument before the Magistrate Judge when the R&R was issued with no new legal or factual argument contained in the Objections.
DISCUSSION
Petitioner was convicted in Cochise County Superior Court in March 2011 of multiple counts of Aggravated DUI and was sentenced to an 11-year term of imprisonment. Petitioner raised four grounds for relief in his habeas petition: Ground One, Petitioner alleges that he was denied effective assistance of counsel in violation of the Sixth Amendment; Ground Two, Petitioner alleges that a warrantless search was conducted during the investigation of the underlying criminal case in violation of the Fourth Amendment; Ground Three, Petitioner claims that his Fourteenth Amendment right to due process was denied when the trial court allowed the jury to hear evidence of Petitioner's prior convictions and failed to grant a mistrial; and, Ground Four, Petitioner claims that his Fifth, Sixth, and Fourteenth Amendment rights were violated when police officers failed to read him his rights as required by Miranda v. Arizona, 384 U.S. 436 (1966).
The Court finds that the Report and Recommendation is thorough and well-considered. The Respondents have no Objections to the Report and Recommendation. Petitioner's Objections reiterate all of the original arguments as to Grounds II and III, with no additional specific examples of error.
The R&R was resolved without a hearing and this Court agrees that none was required. The Court also agrees that a copy of the transcript of the voir dire proceedings was critical to a complete resolution of Petitioner's complaints. The R&R properly found that Grounds I, II and IV may be denied and dismissed as procedurally defaulted. This Court also agrees that Ground III may be denied as either procedurally defaulted (R&R at 15) or on the merits. The Court will adopt the R&R as it resolves Ground III on the merits. (R&R at 15 - 28.) As to the Magistrate Judge's procedural default finding on Grounds I (R&R at 9), II (R&R at 10) and IV (R&R at 29), Petitioner has not established cause and prejudice or a fundamental miscarriage of justice to overcome the defaults. The Objections add nothing new for this Court to consider.
The Court will adopt the R&R in its entirety and will deny the habeas petition on all claims.
CONCLUSION
Accordingly, after conducting a de novo review of the record,
IT IS ORDERED that the Court ADOPTS the Report and Recommendation (Doc. 20) in its entirety as its findings of fact and conclusions of law. The Objections (Doc. 21) raised by the Petitioner are OVERRULED.
IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus (Doc. 1) is DENIED on all claims and the action is DISMISSED. The Clerk's Office is directed to enter a separate Final Judgment to conform to this Order. The Court DECLINES to grant Petitioner a certificate of appealability.
DATED this 12th day of June, 2017.
/s/_________
David C. Bury
United States District Judge