Granillo 296762 v. Shinn ( 2022 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Arnold Mills Granillo, No. CV-20-00311-TUC-JCH 10 Petitioner, ORDER 11 v. 12 David Shinn, et al., 13 Respondents. 14 15 On July 21, 2020, pro se Petitioner Arnold Mills Granillo (“Petitioner”) filed a 16 petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) An Amended 17 Petition (“Petition”) was filed on July 30, 2020 (Doc. 4) and Respondents filed an Answer 18 on January 6, 2021. (Doc. 15.) The matter was referred to Magistrate Judge Lynnette C. 19 Kimmins. (Doc. 10.) On March 4, 2022, Judge Kimmins issued a Report and 20 Recommendation (“R&R”) recommending that the Court dismiss the Petition for the 21 following reasons: 22 (1) Claims 1 and 3 are procedurally defaulted without excuse. Further, Petitioner 23 did not establish that a fundamental miscarriage of justice would occur if Claims 24 1 and 3 were not heard on the merits. (Doc. 18 at 4–6.) 25 (2) Claims 2 and 4 alleging ineffective assistance of trial and appellate counsel— 26 governed by the Antiterrorism and Effective Death Penalty Act of 1996 27 (“AEDPA”)— fail to establish that the state court’s decision was based on an 28 unreasonable determination of facts. (Doc. 18 at 6–20.) Moreover, Claims 2 and 1 4 are without merit. (See id.) 2 The R&R advised the parties that, pursuant to Federal Rule of Civil Procedure 3 72(b)(2), any party may serve and file written objections within fourteen (14) days of being 4 served with a copy of the Report and Recommendation. No objections have been filed 5 within the time provided by Fed. R. Civ. P. 72(b)(2).1 6 After an independent review, the Courts finds it appropriate to adopt the R&R in 7 full and dismiss the Petition. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 … 24 25 1 The standard of review that is applied to a magistrate judge's report and recommendation 26 is dependent upon whether a party files an objection – the Court need not review portions of a report to which a party does not object. Thomas v. Arn, 474 U.S. 140, 150 (1985). 27 However, the Court must “determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the 28 recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1). Accordingly, 2 1. IT IS ORDERED ADOPTING IN FULL the Report and Recommendation 3 (Doc. 18). 4 2. ITIS FURTHER ORDERED DENYING the Petition Under 28 U.S.C. § 2254 5 for a Writ of Habeas Corpus By a Person in State Custody (Doc. 4). The Clerk 6 of the Court shall enter judgment and shall then close its file in this matter. 7 3. IT IS FURTHER ORDERED pursuant to Rule 11(a) of the Rules Governing 8 Section 2254 Cases, in the event Petitioner files an appeal, the Court declines to 9 issue a certificate of appealability because reasonable jurists could not “debate 10 whether (or, for that matter, agree that) the petition should have been resolved 11 in a different manner or that the issues presented were ‘adequate to deserve 12 encouragement to proceed further.’” See Slack vy. McDaniel, 529 U.S. 473, 484 13 (2000) Gnternal citation and quotation omitted). Dated this 5th day of April, 2022. 15 16 ‘ 17 WS Ht br-b onorable John C. Hinderaker 18 United States District Judge 19 20 21 22 23 24 25 26 27 28 -3-