1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Roy Sovine, 

Petitioner, 

v. 

Charles L Ryan, et al., 

Respondents.

No. CV-18-08024-PCT-JAT

ORDER 

 Pending before the Court is Petitioner’s Petition for Writ of Habeas Corpus. The 

Magistrate Judge to whom this case is assigned issued a Report and Recommendation 

(“R&R”) recommending that the Petition be denied. (Doc. 12). Petitioner filed an 

objection to the R&R. (Doc. 13). 

I. Review of R&R 

 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). The district 

court must review the Magistrate Judge’s findings de novo only if a party objects to the 

Magistrate Judge’s findings or recommendations. United States v. Reyna-Tapia, 328 F.3d 

1114, 1121 (9th Cir. 2003) (en banc). However, if no party objects to any fact or issue, 

the district court is not required to engage in “any review at all . . . .” Thomas v. Arn, 474 

U.S. 140, 149 (1985). Accordingly, the Court will review the portions of the R&R to 

which Petitioner has objected de novo. 

. . . 
- 2 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

II. Petition for Writ of Habeas Corpus 

 The Petition raises a single ground for relief, the claim that Petitioner’s counsel 

was ineffective. As explained in the R&R, the test for determining whether counsel is 

ineffective requires both objective deficiency on the part of counsel and a showing that 

that deficient performance actually prejudiced the defense. (Doc. 12 (citing Strickland v. 

Washington, 466 U.S. 668, 687 (1984))). The standard requires a showing “that counsel’s 

errors were so serious as to deprive the defendant of a fair trial . . . whose result is 

reliable.” Id. (emphasis added). 

 The R&R finds this claim without merit, based on the factual record of the case 

and the Superior Court’s decision. Petitioner objects to these findings.

III. Factual and Procedural Background 

 The R&R recounts the factual and procedural background of this case. (Doc. 12 at 

1-2). Petitioner objects to certain factual claims, which the Court will address below.

 A. Petitioner’s Factual Claims 

 Petitioner claims that there was no hearing as required by State v. Donald, 10 P.3d 

1193 (Ariz. Ct. App. 2000), as referenced in the R&R at page 1. (Doc. 13). However, the 

R&R specifically cites to Doc. 7, Ex. B as evidence of said hearing. In the referenced 

document, the court transcript clearly identifies the hearing as a Donald hearing. (Doc. 7, 

Ex. B, page 3, line 5). Ultimately, the presence or absence of a Donald hearing in the 

record has no bearing on Petitioner’s claim. To the extent that Petitioner claims that the 

lack of a Donald hearing affords him post-conviction relief, such a claim is based on state 

law and is not cognizable as a federal habeas claim. Estelle v. McGuire, 502 U.S. 62, 68 

(1991). Moreover, Petitioner had a Donald hearing; thus the Court finds that the 

Magistrate Judge did not err in describing the referenced hearing as a Donald hearing.

 Petitioner claims that there was no plea negotiation. The record indicates that 

Petitioner confirmed to the state court that an offer was made to him at the Early 

Disposition Court, and that said offer was reviewed with counsel at that time. (Doc. 7, 

Ex. B at 9-10). The record further reflects that the plea offer was withdrawn because 
- 3 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Petitioner was uninterested in the plea. (Doc. 7, Ex. B at 3). While the record does not 

reflect any plea negotiation at the Donald hearing, it does reflect the fact that negotiations 

had previously occurred.

 Petitioner further claims that the R&R was incorrect in its finding that Petitioner 

did not petition the Supreme Court for review. (Doc. 13). The Magistrate Judge relied on 

the information provided in Petitioner’s initial filing, where the Petitioner did not indicate 

that he petitioned either the Arizona Supreme Court or the United States Supreme Court. 

(Doc. 1, page 3, questions 9-10). Petitioner now claims that he petitioned the Supreme 

Court for review on November 7, 2017. Regardless of whether Petitioner sought such 

review, nothing about this fact would indicate that his counsel was ineffective.

 Petitioner claims that he was not provided an opportunity to accept or reject a plea 

offer, because no such offer was in existence. (Doc. 13). Petitioner references a statement 

in the R&R summarizing Petitioner’s claim that he was not provided an opportunity to 

accept or reject an offer, (Doc. 12 at 2), and subsequently quotes a non-binding Fifth 

Circuit case stating that “improper statements by a prosecutor may constitute reversible 

error where the defendant’s right to a fair trial is substantially affected,” (Doc. 13) 

(quoting United States v. Anchondo-Sandoval, 910 F.2d 1234, 1237 (5th Cir. 1990) 

(citing United States v. Lowenberg, 853 F.2d 295, 307 (5th Cir. 1988))). 

 The relevance of the supplied quote is circumspect in this case. The Magistrate 

Judge is not a prosecutor, nor could the findings in the R&R have any substantial impact 

on the Petitioner’s right to a fair trial. Additionally, the language that Petitioner 

references (“was not provided an opportunity to accept or reject” the plea offer) was 

language that the Magistrate Judge quoted directly from Petitioner’s own petition for 

post-conviction relief. (Doc. 12 at 2 (quoting Doc. 7, Ex. F at 16)). Even if this argument 

were relevant, however, the R&R does make clear that there was no plea offer available 

to the Petitioner. It includes a specific citation indicating that the Petitioner “did not ask 

for the plea to be re-extended, nor did he request a plea of any nature, but simply 

indicated that he understood his exposure under the plea and at trial.” (Doc. 7, Ex. I). The 
- 4 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

entire document, taken in context, supports the conclusion that there was no plea offer 

available to the Petitioner. Semantics as to whether Petitioner could accept or reject a 

plea that was non-existent are irrelevant to the conclusion of the R&R.

IV. Petition for Writ of Habeas Corpus 

 Petitioner has raised no objections to the R&R aside from the factual assertions 

previously addressed. Because Petitioner does not point to any flaws in the Magistrate 

Judge’s legal analysis and conclusions, the Court overrules Petitioner’s objections and 

accepts the R&R’s recommendation that the Court deny relief.

V. Certificate of Appealability 

 The R&R recommends that this Court deny the issuance of a certificate of 

appealability (“COA”). Petitioner objects to this recommendation. 

 A judge may issue a COA “only if the applicant has made a substantial showing of 

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The standards for granting a 

COA are the same for petitions under § 2254 and § 2255. See United States v. Martin, 

226 F.3d 1042, 1046 n.4 (9th Cir. 2000). “Where a district court has rejected the 

constitutional claims on the merits, the showing required to satisfy § 2253(c) is 

straightforward: The petitioner must demonstrate that reasonable jurists would find the 

district court’s assessment of the constitutional claims debatable or wrong.” Slack v. 

McDaniel, 529 U.S. 473, 483-84 (2000); see also id. (describing the COA determination 

as deciding whether the issues presented are “‘adequate to deserve encouragement to 

proceed further’” [quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)]).” When the 

district court denies a habeas petition on procedural grounds without reaching the 

prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, 

at least, that jurists of reason would find it debatable whether the petition states a valid 

claim of the denial of a constitutional right and that jurists of reason would find it 

debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. 

at 484. 

 Here, the Court finds that jurists of reason could not find this Court’s conclusions 
- 5 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

debatable. Therefore, the Court will overrule Petitioner’s objection to the R&R with 

respect to the issue of whether to grant a COA.

VI. Subsequent Motions 

After filing an objection to the R&R, Petitioner filed two subsequent motions in 

this matter. Both motions relate to the production of evidence related to Petitioner’s 

underlying state criminal charge. As such, they are irrelevant to Petitioner’s claim that his 

counsel was ineffective, and are denied as moot. 

VII. Conclusion 

 Based on the foregoing, 

IT IS ORDERED that the R&R (Doc. 12) is accepted; the objections (Doc. 13) 

are overruled as specified above; the Petition for Writ of Habeas corpus is denied, with 

prejudice, and the Clerk of the Court shall enter judgment accordingly. 

IT IS FURTHER ORDERED that a Certificate of Appealability and leave to 

proceed in forma pauperis on appeal is denied. 

IT IS FURTHER ORDERED that Petitioner’s Motion to Compel Discovery 

(Doc. 15) and Petitioner’s Motion for Evidentiary Hearing (Doc. 16) are denied for the 

reasons set forth above. 

 Dated this 14th day of September, 2018.