Dickey v. Shinn

3:19-cv-08066 | D. Ariz. | May 18, 2020

Case 3:19-cv-08066-JJT Document 12 Filed 05/18/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Ellen Ruth Dickey, No. CV-19-08066-PCT-JJT (CDB) Petitioner, ORDER v. Charles L. Ryan, et al. ,

Respondents. At issue is the Report and Recommendation (Doc. 11) (“R&R”) submitted in this matter by United States Magistrate Judge Camille D. Bibles, recommending the Court deny the Petition for Habeas Corpus (Doc. 1). In the R&R, Judge Bibles warned Petitioner she 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 appellate consideration of the issues,” per United States v. Reyna-Tapia , 328 F.3d 1114" date_filed="2003-05-09" court="9th Cir." case_name="United States v. Jose Francisco Reyna-Tapia, AKA Jose Reyna">328 F.3d 1114, 1121 (9th Cir. 2003), and a waiver if her right to appellate review of any findings of fact and conclusions of law the Court makes in this Order pursuant to the R&R. (Doc. 11 at 12.)

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

Upon a review of the underlying state court record and the briefing of the parties in this matter, the Court agrees that the state court’s denial of Petitioner’s Strickland claim Case 3:19-cv-08066-JJT Document 12 Filed 05/18/20 Page 2 of 2 for ineffective assistance of counsel was not an unreasonable application of law. The Court further concludes that Petitioner may not bring a claim for habeas relief on her Fourth Amendment ground per Crater v. Galaza , 508 F.3d 1261" date_filed="2007-12-06" court="9th Cir." case_name="Crater v. Galaza">508 F.3d 1261, 1269 (9th Cir. 2007). Finally, Petitioner’s consecutive sentences for felon in possession and possession of a firearm in the commission of a drug offense do not violate either due process or the double jeopardy clause.

IT IS ORDERED adopting the Report and Recommendation (Doc. 11) including its underlying reasoning. IT IS FURTHER ORDERED denying the Petition for Habeas Corpus (Doc. 1). IT IS FURTHER Ordered denying a Certificate of Appealability, upon a finding
that Petitioner has not made a substantial showing of the denial of a constitutional right. IT IS FURTHER ORDERED directing the Clerk of Court to terminate this matter. Dated this 18th day of May, 2020. Honorable John J. Tuchi United States District Judge

- 2 -