Opinion
No. CV 05-976-PHX-ROS.
July 24, 2007
ORDER
On April 1, 2005, Plaintiff filed a pro se Petition for Writ of Habeas Corpus (Doc. #1). On September 27, 2006, Magistrate Judge Lawrence O. Anderson issued a Report and Recommendation ("R R") recommending that the petition be denied (Doc. #55). Petitioner filed his Objections on October 11, 2006.
The Court "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)(1). It is "clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) ( en banc) (emphasis in original); Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1126 (D. Ariz. 2003) ("Following Reyna-Tapia, this Court concludes that de novo review of factual and legal issues is required if objections are made, `but not otherwise.'").
Petitioner reiterates his nine claims contained within his petition. He first argues that the Magistrate Judge improperly concluded that claims 2, 3, 4, 5, 6, 8, and 9 were procedurally defaulted. Reviewing Plaintiff's claims de novo, the Court concludes that for the reasons state in the R R, those claims are indeed procedurally defaulted and therefore barred from federal habeas review.
Second, Petitioner argues that the Magistrate Judge erred in concluding that Petitioner's claim 1 (improper post-arrest silence by prosecutor), claim 6 (ineffective assistance of counsel) failed on the merits. For the reasons stated in the R R, the Court concludes that those claims do indeed fail on the merits.
Finally, Petitioner argues that the Magistrate Judge erred in concluding that Petitioner's claim 7 failed on the merits. Petitioner also filed a Notice RE: Change of Law (Doc. #57), stating that Cunningham v. California, 127 S.Ct. 856, 881 (U.S.Cal. 2007) makes his sentence unconstitutional. He argues that Cunningham should be applied retroactively. Although the retroactivity of Cunningham has not yet been addressed in the Ninth Circuit, because Cunningham relies heavily on the new procedural rule announced in Blakely v. Washington, 542 U.S. 296 (2004), and because the Ninth Circuit has already decided thatBlakely is not retroactive, then Cunningham is also not retroactive. For this reason, and those reasons stated in the R R, Petitioner's Claim 7 also fails on the merits.
Accordingly,
IT IS ORDERED THAT the R R (Doc. #55) is ADOPTED IN FULL.
IT IS FURTHER ORDERED THAT Petitioner's Petition for Writ of Habeas Corpus (Doc. #1) is DENIED.
IT IS FURTHER ORDERED THAT Petitioner's Motions for Ruling (Doc. #58, 59) are DENIED AS MOOT.