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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Matthew Alan Morris, 

Petitioner, 

v. 

Charles L Ryan, et al., 

Respondents.

No. CV-18-08054-PCT-JAT

ORDER 

 Pending before the Court is the Report and Recommendation (“R&R”) from the 

Magistrate Judge recommending that the Petition for Writ of Habeas Corpus in this case, 

filed pursuant to 28 U.S.C. § 2254, be denied. (Doc. 14). Petitioner filed objections to 

portions of the R&R (Doc. 15), and Respondents replied to those objections (Doc. 16). 

I. Legal Standard 

 This 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, 1226 (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.’”); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 

1027, 1032 (9th Cir. 2009) (the district court “must review de novo the portions of the 
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[Magistrate Judge’s] recommendations to which the parties object.”). District courts are 

not required to conduct “any review at all . . . of any issue that is not the subject of an 

objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28 U.S.C. 

§ 636(b)(1) (“the court shall make a de novo determination of those portions of the [report 

and recommendation] to which objection is made.”). 

 The Petition in this case was filed under 28 U.S.C. § 2254 because Petitioner is 

incarcerated based on a state conviction. With respect to any claims that Petitioner 

exhausted before the state courts, under 28 U.S.C. §§ 2254(d)(1) and (2) this Court must 

deny the Petition on those claims unless “a state court decision is contrary to, or involved 

an unreasonable application of, clearly established Federal law” or was based on an 

unreasonable determination of the facts. See Lockyer v. Andrade, 538 U.S. 63, 71 (2003). 

II. Discussion 

Petitioner made 9 claims in the Petition. (Doc. 14 at 3-4). The R&R recommends 

that this Court deny relief on all claims. (Id. at 1). Petitioner objected to the R&R’s 

recommendation on claims one and six. (Doc. 15). Respondents replied to those 

objections. (Doc. 16). 

 As discussed above, this Court need only review the portions of the R&R to which 

there is an objection. Therefore, the Court adopts the recommendation of the R&R on 

claims 2-5 and 7-9, and relief will be denied as to those claims. 

A. Claim 1 

In claim 1, Petitioner alleges there was insufficient evidence to support his 

conviction. (Doc. 15 at 4). The R&R discusses the law governing claims of sufficiency 

of the evidence at pages 8-9. Neither party objected to this statement of the law, and the 

Court accepts it. 

 As recounted in the R&R, “the relevant question is whether, after viewing the 

evidence in the light most favorable to the prosecution, any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt.” (Doc. 14 at 10 

(quotation and citation omitted)). In his objections, Petitioner argues that his attorney 
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should have called an expert. (Doc. 15 at 4). However, Petitioner does not explain what 

the topic of the expert testimony would have been. (Id.). Further, Petitioner does not argue 

that the evidence presented was insufficient to convict him. (Id.). He instead argues that 

additional, hypothetical evidence might have produced a different result. (Id.). Such an 

argument fails to meet the test required, namely could the trier of fact have found Petitioner 

guilty beyond a reasonable doubt. 

Thus, the objections do not change the R&R conclusion that the Arizona Court of 

Appeals decision that there was sufficient evidence to convict Petitioner was not contrary 

to or an unreasonable application of clearly established federal law, nor an unreasonable 

determination of the facts. Accordingly, relief on this claim will be denied. 

B. Claim 6 

In claim 6, Petitioner alleges his counsel was ineffective. (Doc. 14 at 11-12). 

Petitioner concedes that he did not present his theories of ineffective assistance of counsel 

to the state courts and that his claims are procedurally defaulted. (Doc. 15 at 2). However, 

Petitioner argues that his claims fall under the exception to exhaustion found in Martinez 

v. Ryan, 566 U.S. 1, 17 (2016). (Id.). 

The R&R recounts the law governing the Martinez exception to exhaustion and 

neither party objects to this statement of the law. (Doc. 14 at 12). Accordingly, the Court 

adopts it. Specifically, the R&R notes: 

To demonstrate (a) cause and (b) prejudice sufficient to excuse the 

procedural default under Martinez, Petitioner must make two showings: to 

establish cause, he must show that post-conviction counsel was ineffective 

under the standards of Strickland; to establish prejudice, he must show that 

his underlying ineffective-assistance-of-trial-counsel claim is a substantial 

one. Clabourne v. Ryan, 745 F.3d 362, 377 (9th Cir. 2014) (quoting 

Martinez, 566 U.S. at 14) overruled on other grounds by McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015). 

(Doc. 14 at 12). 

 Petitioner argues his post-conviction relief counsel was ineffective in failing to 

argue his trial counsel was ineffective on two theories: 1) his trial counsel did not 

“impeach” the victim; and 2) his trial counsel did not call an expert witness. (Doc. 15 at 

3). 
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Regarding the first claim, as Respondents note in their reply to the objections, the 

substance of all the evidence Petitioner claims his attorney did not elicit was admitted at 

trial. (Doc. 16 at 3). Thus, Respondents note that calling any additional witnesses to testify 

to the same facts would have been cumulative. (Doc. 16 at 3). Because this evidence was 

admitted at trial, the Court finds that Petitioner’s first claim under Martinez is not 

substantial because his trial counsel was not ineffective. 

Regarding the second claim, again Petitioner fails to show or even argue what 

evidence the expert would have presented. As the R&R notes, “‘Conclusory allegations 

which are not supported by a statement of specific facts do not warrant habeas relief.’ 

James v. Borg, 24 F.3d 20, 24 (9th Cir. 1994).” (Doc. 14 at 12). In his objections, 

Petitioner does not elaborate on the substance of the expert’s testimony or what bearing it 

would have had on his case. (Doc. 15 at 3-4). Thus, Petitioner has failed to establish that 

his ineffective assistance of trial counsel claim (for failing to call an expert) was substantial. 

Thus, post-conviction relief counsel’s failure to raise this theory of ineffective assistance 

of trial counsel is not cause to overcome Petitioner’s procedural default of this claim under 

Martinez. 

III. Conclusion 

 Thus, having considered Petitioner’s objections, the Court finds that Petitioner is 

not entitled to relief. Therefore, 

IT IS ORDERED that the Report and Recommendation (Doc. 14) is accepted, the 

objections (Doc. 15) are overruled, the Petition is denied and dismissed with prejudice and 

the Clerk of the Court shall enter judgment accordingly. 

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IT IS FURTHER ORDERED that pursuant to Rule 11 of the Rules Governing 

Section 2254 Cases, in the event Petitioner files an appeal, the Court denies issuance of a 

certificate of appealability because dismissal of the portions of the petition is based on a 

plain procedural bar and jurists of reason would not find this Court’s procedural ruling 

debatable, see Slack v. McDaniel, 529 U.S. 473, 484 (2000), and Petitioner has not made a 

substantial showing of the denial of a constitutional right, see 28 U.S.C. § 2253(c)(2). 

 Dated this 12th day of March, 2019.