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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Jesus Oscar Meraz Leon, 

Petitioner, 

v. 

Charles L Ryan, et al., 

Respondents. 

No. CV-17-04227-PHX-DWL 

ORDER 

On November 16, 2017, Petitioner filed a petition for writ of habeas corpus under 

28 U.S.C. § 2254 (“the Petition”). (Doc. 1.) On August 27, 2018, Magistrate Judge Fine 

issued a Report and Recommendation (“R&R”) concluding the Petition should be denied 

and dismissed with prejudice. (Doc. 19.) Afterward, Petitioner filed written objections to 

the R&R (Doc. 20) and Respondents filed a response (Doc. 21). 

As explained below, the Court will deny Petitioner’s objections. 

I. Background 

 In 1985, following a jury trial, Petitioner was convicted of armed burglary, sexual 

assault, and attempted sexual assault and sentenced to life in prison. (Doc. 19 at 1-2.) He 

unsuccessfully appealed his conviction and sentence through the Arizona court system on 

grounds not relevant here. (Id.) 

 In 2000, the state of Arizona enacted a post-conviction DNA testing procedure, 

which is codified at A.R.S. § 13-4240(A). (Doc. 19 at 3-4.) 

 Four years later—in 2004—Petitioner filed a notice of post-conviction relief in 
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which he requested “medical testing” of DNA. (Doc. 19 at 2.) The superior court never 

ruled on this notice. (Id.) Instead of requesting a ruling or petitioning to the Arizona Court 

of Appeals, Petitioner continued to file additional motions for post-conviction relief. (Id.) 

 In March 2015, Petitioner filed another motion in the superior court for postconviction DNA testing under A.R.S. § 13-4240(A). (Doc. 19 at 2.) In April 2015, the 

motion was denied. (Id.) 

 In July 2015, Petitioner filed a petition for review with the Arizona Court of 

Appeals. (Id.) In April 2017, the Court of Appeals issued a memorandum decision in 

which it denied relief on the grounds that (1) “Leon offers no proof the evidence still exists 

more than thirty years after investigators first collected it, or, if it does exist, that it remains 

in a condition that allows DNA testing,” and (2) “Leon previously petitioned for DNA 

testing in 2004. . . . [I]f Leon wished to challenge the failure to grant that earlier petition 

for testing, he had an obligation to file a timely petition for review” and failed to do so. 

(Doc. 17-1 at 61.) 

 In May 2017, Petitioner filed a petition for review with the Arizona Supreme Court. 

(Doc. 17-1 at 63-76.) This petition framed the issue as whether the trial court had abused 

its discretion under Arizona law. (Id. at 64.) The only two references to a possible federal 

constitutional claim were (1) an assertion that Arizona’s abuse-of-discretion standard “is 

too liberal and has resulted in an arbitrary and capricious enforcement of this substantive 

right for all but the wealthiest of defendants and is a complete violation of the 14th 

Amendment due process and equal protection clause” and (2) and assertion that the Court 

of Appeals had “resorted to using incorrect rhetoric so that they may sweep this complete 

denial of due process under the rug.” (Id. at 68-70.) The Supreme Court denied the petition 

in September 2017. (Doc. 17-1 at 85.) 

 In November 2017, Petitioner filed the Petition. (Doc. 1.) It raises only one ground 

for relief: that Arizona’s refusal to grant his request for DNA testing violated his Fourteenth 

Amendment rights to due process and equal protection because he is actually innocent of 

sexual assault. (Id. at 6.) 
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 The R&R was issued in August 2018. (Doc. 19.) It concludes the Petition should 

be denied for three independent reasons: (1) the petition is untimely and not subject to the 

“actual innocence” exception because Petitioner failed to present any new evidence of his 

innocence (Doc. 19 at 3-5); (2) Petitioner didn’t “fairly present[]” any federal claims in his 

petition to the Arizona Supreme Court and thus failed to meet AEDPA’s exhaustion 

requirement (Doc. 19 at 5-6); and (3) the Supreme Court specifically held, in Dist. Atty’s 

Office for Third Judicial Dist. v. McGuire, 557 U.S. 52 (2009), that there’s no federal 

constitutional right to post-conviction DNA testing (Doc. 19 at 6.) 

II. Legal Standard 

 A party may file specific, written objections to an R&R within fourteen days of 

being served with a copy of it. Rules Governing Section 2254 Cases 8(b) (“Section 2254 

Rules”); see also Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). The Court must 

undertake a de novo review of those portions of the R&R to which specific objections are 

made. See, e.g., Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (“It does not appear that 

Congress intended to require district court review of a magistrate’s factual or legal 

conclusions, under a de novo or any other standard, when neither party objects to those 

findings.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1221 (9th Cir. 2003) (“[T]he 

district judge must review the magistrate judge’s findings and recommendations de novo 

if objection is made, but not otherwise.”). The Court may accept, reject, or modify, in 

whole or in part, the findings or recommendations made by the magistrate judge. Section 

2254 Rules 8(b); see also Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1)(C). 

III. The Parties’ Arguments 

 In his objections to the R&R, Petitioner doesn’t meaningfully address the analysis 

contained in the R&R. (Doc. 20.) Instead, he argues (1) he’s entitled to DNA testing under 

Brady v. Maryland, 373 U.S. 83 (1963), (2) the evidence against him at trial was weak 

(there was no DNA evidence and the victim couldn’t identify him), and (3) the prosecution 

never proved “at least some penetration” as required under Arizona’s rape laws. (Id.) 

 In their response, Respondents argue that Petitioner’s new arguments, “even if true, 
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do[] not excuse the untimeliness of his claim nor [do they] turn his state claim into a federal 

one.” (Doc. 21 at 1-2.) 

IV. Analysis 

 The R&R identified three independent reasons why habeas relief is unavailable: (1) 

the Petition is untimely; (2) Petitioner failed to exhaust his federal claims in state court; 

and (3) on the merits, there is no federal constitutional right to DNA testing. In his 

objections, Petitioner seemingly ignored these issues. Even if his invocation of Brady

could be liberally construed as an attempt to shoehorn his complaint into a cognizable 

federal theory of relief—and thus address the third ground for dismissal identified in the 

R&R—he still hasn’t addressed the issues of timeliness and exhaustion. 

 These omissions mean Petitioner is not entitled to relief. The Supreme Court has 

explained that “[i]t does not appear that Congress intended to require district court review 

of a magistrate’s factual or legal conclusions, under a de novo or any other standard, when 

neither party objects to those findings.” Thomas v. Arn, 474 U.S. 140, 149-50 (1985). 

See also United States v. Reyna-Tapia, 328 F.3d 1114, 1221 (9th Cir. 2003) (“[T]he district 

judge must review the magistrate judge’s findings and recommendations de novo if 

objection is made, but not otherwise.”). Here, Petitioner has effectively conceded that the 

R&R’s analysis of the timeliness and exhaustion issues is correct. 

Accordingly, IT IS ORDERED that: 

(1) The Court accepts the recommended disposition of the R&R (Doc. 19); 

(2) The Petition (Doc. 1) is denied and dismissed with prejudice; 

(3) A Certificate of Appealability and leave to proceed in forma pauperis on 

appeal are denied because the dismissal of the Petition is justified by a plain procedural bar 

and reasonable jurists would not find the ruling debatable; and

... 

... 

 
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(4) The Clerk shall enter judgment accordingly and terminate this action. 

 Dated this 5th day of February, 2019.