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UNITED STATES DISTRICT COURT 

DISTRICT OF ARIZONA 

Carlos Yanez Peyron, 

 Petitioner, 

vs. 

Charles L. Ryan, et al., 

 Respondents. 

 CV 15-0414-TUC-JGZ (JR) 

 REPORT AND 

 RECOMMENDATION 

 

 Pending before the Court is Carlos Yanez Peyron’s Amended Petition for Writ 

of Habeas Corpus (Doc. 10) filed pursuant to 28 U.S.C. § 2254. In accordance with 

the Rules of Practice of the United States District Court for the District of Arizona 

and 28 U.S.C. § 636(b)(1), this matter was referred to the Magistrate Judge for report 

and recommendation. As explained below, the Magistrate Judge recommends that 

the District Court, after an independent review of the record, dismiss the Petition 

with prejudice. 

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I. Factual and Procedural Background 

 In its Memorandum Decision affirming Peyron’s conviction and sentence, the 

Arizona Court of Appeals summarized the factual background as follows:1

In May 2010, A.M. and C.M. were working at the M & M Customs 

shop when Carlos Peyron and three other men entered. One placed a 

gun at C.M.’s back and told him to hand over the stereo equipment and 

money. C.M. pushed A.M. into the shop’s office and A.M. slammed 

the office door closed. A.M. retrieved his shotgun from the office, reentered the store, and fired a round, which distracted the men and 

allowed C.M. to get his own weapon from his toolbox. One of the four 

men ran out the back door, then turned around and fired two shots at 

C.M., who fired back two times. C.M. returned to the store to find 

A.M. holding Peyron and the other two men at gunpoint. 

Police arrived at the scene almost immediately in response to a 9–1–1 

call. When the police arrived, they found one deceased person behind 

the store and three men being held at gunpoint inside. Peyron had a 

head injury, which he attributed to being pistol whipped. The police 

brought Peyron to the hospital for treatment, and after he was released, 

brought him to the police station for interrogation. 

State v. Peyron, 2013 WL 1093055 (Ariz. App. March 14, 2013); Ex. E (copy of 

decision).2

 

 After a jury trial, Peyron was convicted of first-degree felony murder, and two 

counts each of attempted armed robbery, attempted aggravated robbery, and 

kidnapping. Ex. E, p. 1; Ex. A, pp. 1-2 (Indictment). The trial court sentenced 

 

1

 The factual summary of the Arizona Court of Appeals is accorded a presumption of 

correctness. 28 U.S.C. § 2254(e)(1); Moses v. Payne, 555 F.3d 742, 746 n. 1 (9th Cir. 

2009) (citing Hernandez v. Small, 282 F.3d 1132, 1135 n. 1 (9th Cir. 2002)). 

2

 Unless otherwise indicated, all exhibit references are to the exhibits attached to the 

Respondents’ Answer to Amended Petition for Writ of Habeas Corpus (Doc. 13). 

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Peyron to a term of life with the possibility of parole after 25 years on the felony 

murder count, with the sentences on the remaining counts to be served concurrently 

to the term imposed for the felony murder conviction. Ex. A, pp. 3-7 (sentencing 

Minute Entry). 

 On direct appeal, Peyron raised four claims, alleging that (1) the trial court 

abused its discretion by denying his motion to suppress his statements as involuntary; 

(2) in violation of his due process and equal protection, the Pima County Attorney 

arbitrarily refused to extend a plea offer; (3) the trial court erred by failing to dismiss 

the homicide count because it was based on hearsay testimony that was admitted in 

violation of the Confrontation Clause, and (4) the trial court erred by improperly 

instructing the jury on reasonable doubt and thereby relieving the state of its 

constitutional burden of proof. Ex. B., pp. ii-iii, Ex. E, pp. 1-2. By Memorandum 

Decision filed on March 14, 2013, the Arizona Court of Appeals affirmed Peyron’s 

convictions and sentences. Ex. E, p. 13. Peyron did not seek review of the decision 

by the Arizona Supreme Court. Exs. F, G. 

 On November 21, 2013, Peyron subsequently filed a PCR notice pursuant to 

Rule 32, Ariz. R. Crim. P. Ex. H. However, appointed counsel subsequently filed a 

“Notice of No Colorable Claims” and requested an extension of the filing deadlines 

to allow Peyron to file a pro se PCR petition. Ex. J. The extension was granted, Ex. 

K, but Peyron did not file a pro se petition and, by order dated January 7, 2015, the 

trial court summarily denied relief. Ex. L. 

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 Petitioner commenced this action with the filing of his original petition on 

September 11, 2015. (Doc. 1). He subsequently filed the now pending Amended 

Petition on February 4, 2016. (Doc. 8). Peyron raises four claims in the Amended 

Petition. He claims (1) ineffective assistance of PCR counsel, (2) that he was 

improperly convicted of felony murder because “the murder happened after [an] 

attempt at any felony was over,” (3) that his trial counsel was ineffective in arguing 

to suppress his statements to police, and (4) that the prosecutor admitted that the 

victims’ testimony was inconsistent. Amended Petition, pp. 6-9. 

 In their Limited Answer, Respondents address only two claims, Grounds Two 

and Three of the Amended Petition. In relation to those two claims, Respondents 

contend that the claims were not exhausted, are procedurally defaulted, and therefore 

must be dismissed. As discussed below, the Court finds that Peyron not only failed 

to exhaust Grounds Two and Three, but also Grounds One and Four. He has not 

established that any of the claims are properly before the Court and it is 

recommended that the Amended Petition be dismissed. 

II. Discussion 

 The writ of habeas corpus provides relief to persons in custody pursuant to the 

judgment of a state court in violation of the Constitution, laws, or treaties of the 

United States. 28 U.S.C. §§ 2241(c)(3), 2254(a). Petitions for habeas corpus relief 

are governed by the Anti-terrorism and Effective Death Penalty Act of 1996 

(“AEDPA”). 28 U.S.C. § 2244. 

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 A. Failure to Allege Constitutional Violations 

 Under Rule 2(c) of the Rules Governing Section 2254 Cases, a § 2254 petition 

must state all grounds for relief that may be available to the petitioner, the particular 

federal right allegedly violated, the facts supporting each ground, and the relief 

requested. In this case, Peyron has failed to expressly allege the constitutional right 

allegedly violated in any of his claims for relief. The allegations offered in support 

of Grounds One and Three can generously be construed as alleging ineffective 

assistance of trial counsel in violation of the Sixth Amendment. However, in Ground 

Two, Peyron alleges that the victims and witnesses testified that the killing occurred 

after the robbery attempt was over and that the felony murder rule should not apply 

to him. In Ground Four, Peyron asserts the victims’ testimony was inconsistent. In 

neither ground does he allege the violation of a federal constitutional right, such as 

the violation of his federal due process rights. See Gutierrez v. Griggs, 695 F.2d 

1195, (9th Cir. 1983) (challenging the correctness of a state evidentiary ruling does 

not allege a violation of a federal constitutional right). Because no “clearly 

established federal law” has been articulated, Peyron is not entitled to habeas relief 

on Grounds Two and Four. 28 U.S.C. § 2254(d). Moreover, as discussed below, all 

four of Peyron’s claims are unexhausted and procedurally defaulted. 

 B. Exhaustion and Procedural Default 

 1. Legal Standards 

 Ordinarily, a state prisoner must exhaust his available state remedies before a 

federal court may consider the merits of his habeas corpus petition. See 28 U.S.C. § 

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2254(b)(1)(A); Nino v. Galaza, 183 F.3d 1003, 1004 (9th Cir.1999). “[A] petitioner 

fairly and fully presents a claim to the state court for purposes of satisfying the 

exhaustion requirement if he presents the claim: (1) to the proper forum, (2) through 

the proper vehicle, and (3) by providing the proper factual and legal basis for the 

claim.” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005) (citations 

omitted). 

 Exhaustion requires that a habeas petitioner present the substance of his 

claims to the state courts in order to give them a “fair opportunity to act” upon these 

claims. See O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). “To exhaust one’s 

state court remedies in Arizona, a petitioner must first raise the claim in a direct 

appeal or collaterally attack his conviction in a petition for post-conviction relief 

pursuant to Rule 32,” Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994), and then 

present his claims to the Arizona Court of Appeals. See Swoopes v. Sublett, 196 F.3d 

1008, 1010 (9th Cir. 1999). 

 Additionally, a state prisoner must not only present the claims to the proper 

court, but must also present them fairly. A claim has been “fairly presented” if the 

petitioner has described the operative facts and federal legal theories on which the 

claim is based. Picard v. Connor, 404 U.S. 270, 277-78 (1971); Rice v. Wood, 44 

F.3d 1396, 1403 (9th Cir. 1995). “Our rule is that a state prisoner has not ‘fairly 

presented’ (and thus exhausted) his federal claims in state court unless he specifically 

indicated to that court that those claims were based on federal law.” Lyons v. 

Crawford, 232 F.3d 666, 668 (9th Cir. 2000), amended on other grounds, 247 F.3d 

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904 (9th Cir. 2001). A petitioner must alert the state court to the specific federal 

constitutional guaranty upon which his claims are based, Tamalini v. Stewart, 249 

F.3d 895, 898 (9th Cir. 2001), however, general appeals in state court to broad 

constitutional principles, such as due process, equal protection, and the right to a fair 

trial, are insufficient to establish fair presentation of a federal constitutional claim. 

Lyons, 232 F.3d at 669. Moreover, it is not enough that a petitioner presented to the 

state court all the facts necessary to support an inadequately identified federal claim 

or that a “somewhat similar” state law claim was raised. Baldwin v. Reese, 541 U.S. 

27, 28 (2004); Shumway v. Payne, 223 F.3d 982, 988 (9th Cir. 2000) (mere similarity 

between a claim of state and federal error insufficient to establish exhaustion). 

“Exhaustion demands more than drive-by citation, detached from any articulation of 

an underlying federal legal theory.” Castillo v. McFadden, 399 F.3d 993, 1003 (9th 

Cir. 2005). 

 In Arizona, claims not previously presented to the state courts on either direct 

appeal or collateral review are generally barred from federal review because any 

attempt to return to state court to present them would be futile unless the claims fit 

into a narrow range of exceptions. See Ariz. R. Crim. P. 32.1(d)-(h), 32.2(a) 

(precluding claims not raised on direct appeal or in prior post-conviction relief 

petitions), 32.4(a) (time bar), 32.9(c) (petition for review must be filed within thirty 

days of trial court’s decision). Because these rules have been found to be 

consistently and regularly followed, and because they are independent of federal law, 

either their specific application to a claim by an Arizona court, or their operation to 

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preclude a return to state court to exhaust a claim, will procedurally bar subsequent 

review of the merits of such a claim by a federal habeas court. Stewart v. Smith, 536 

U.S. 856, 860 (2002); Ortiz v. Stewart, 149 F.3d 923, 931-32 (9th Cir. 1998) (Rule 

32, Ariz.R.Crim.P. is strictly followed); State v. Mata, 916 P.2d 1035, 1050-52 (Ariz. 

1996) (waiver and preclusion rules strictly applied in postconviction proceedings). 

 A federal court may not consider the merits of an unexhausted and 

procedurally defaulted claim unless the petitioner can demonstrate cause for his 

noncompliance and actual prejudice, or establish that a miscarriage of justice would 

result from the lack of review. See Schlup v. Delo, 513 U.S. 298, 321 (1995). To 

establish cause, a petitioner must point to some objective factor external to the 

defense impeded his efforts to comply with the state’s procedural rules. Dretke v. 

Haley, 541 U.S. 386, 393-94 (2004). “[C]ause is an external impediment such as 

government interference or reasonable unavailability of a claims factual basis.” 

Robinson v. Ignacio, 360 F.3d 1044, 1052 (9th Cir. 2004) (citations omitted). 

Ignorance of the state’s procedural rules or lack of legal training does not constitute 

legally cognizable “cause” for a petitioner’s failure to fairly present a claim. Hughes 

v. Idaho State Board of Corrections, 800 F.2d 905, 908-10 (9th Cir. 1986); Schneider 

v. McDaniel, 674 F.3d 1144, 1153 (9th Cir. 2012). “Prejudice” is actual harm 

resulting from the constitutional violation or error. Magby v. Wawrzaszek, 741 F.2d 

240, 244 (9th Cir. 1984); Thomas v. Lewis, 945 F.2d 1119, 1123 (9th Cir. 1996). 

 Alternatively, a federal court may review the merits of a procedurally 

defaulted claim where a petitioner can establish that a “fundamental miscarriage of 

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justice” would otherwise result. Schlup v. Delo, 513 U.S. at 327. A fundamental 

miscarriage of justice exists when a constitutional violation resulted in the conviction 

of one who is actually innocent. Id. 

 2. Analysis of Claims

 a. Ground One 

 In Ground One of the Amended Petition, Peyron alleges that: 

I had a [PCR] lawyer . . . who filed a no colorable claims on my Rule 

32 when there was enough evidence that proved otherwise. Fail 

assistance of counsel was what took place. 

Amended Petition, p. 6. Peyron then explains that his trial counsel was ineffective by 

not providing him the police reports of the incident so he therefore could not 

effectively assist in his defense. Id. He complains that he did not receive the 

requested documentation until much later and that his lawyers’ did not “put forth 

good faith in [his] case.” Id. 

 Peyron does not contest that he failed to exhaust Ground One. When asked 

in the court-provided form why he did not present the claim to the Arizona Court of 

Appeals, he responded that “my lawyer during trial failed to provide me with any 

paperwork concerning my case and this is new evidence.” Id., p. 6. As Peyron 

recognizes, this claim was not presented to the Arizona Court of Appeals and was not 

exhausted. Coleman, 501 U.S. at 735 n. 1. Respondents contend and Peyron does 

not contradict, that Peyron is procedurally barred from now raising Ground One in 

State court. See Ariz.R.Crim.P. 32.2(a)(1) (“A defendant shall be precluded from 

relief under [Rule 32] based upon any ground . . . [r]aisable on direct appeal . . . or on 

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post-trial motion . . . .”); Ariz.R.Crim.P. 32.2(a)(3) (“A defendant shall be precluded 

from relief under [Rule 32] based upon any ground . . . [t]hat has been waived at trial, 

on appeal, or in any previous collateral proceeding.”); Beaty v. Stewart, 303 F.3d 

975, 987 (9th Cir. 2002). However, Peyron’s allegations can charitably be construed 

as alleging that his default is excused by the fact that his lawyers did not give him the 

paperwork necessary to support his claims and as alleging ineffective assistance of 

his PCR counsel in the failure to allege ineffective assistance of trial counsel. As 

such, the Court will consider whether Peyron has shown “cause” to excuse his 

procedural default under the “narrow circumstances” described in Martinez v. Ryan, 

132 S. Ct. 1309, 1318 (2012). 

 Under Martinez, Peyron bears the burden to show that “the underlying 

ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that 

the prisoner must demonstrate that the claim has some merit.” Sexton v. Cozner, 679 

F.3d 1150, 1157 (9th Cir. 2012). He has not done so. Although he indicates that his 

appellate lawyer provided him with the needed documents, he has not identified what 

information from the police reports or other documents would have been useful to 

him at trial or explained how that information would have established that his trial 

counsel was ineffective. It is not the court’s role to search the record for evidence 

that might support Peyron’s claim of ineffective assistance of counsel. See 

Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We review only issues which 

are argued specifically and distinctly in a party’s opening brief. We will not 

manufacture arguments for an appellant, and a bare assertion does not preserve a 

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claim . . . .”). Because Peyron fails to prove this claim has any potential merit, the 

procedural default of this claim is not excused. 

 b. Ground Two

 In Ground Two, Peyron alleges that the victims of the robbery “both admit to 

the murder happening after the fact,” and contends that “[f]elony murder should not 

apply.” Amended Petition, p. 7. He asserts that the police reports establish that one 

of the victims chased one of perpetrators from the building and shot him and 

rhetorically asks, “Why follow or chase a man with a gun other than to inflict 

harm[?]” Id. He contends that his trial counsel did not know these facts and that the 

police reports and trial transcripts “prove the murder happened after [an] attempt of 

any felony was over.” Id. 

 Again, Peyron does not contest that he failed to exhaust Ground Two. He 

states that he did not present the claim because “my [trial] lawyer . . . stated he would 

handle the case & needed no help from myself.” Id., p. 7. He has not countered the 

Respondents’ contention that the claim is procedurally barred under Arizona law. 

See Ariz.R.Crim.P. 32.2(a)(1) (“A defendant shall be precluded from relief under 

[Rule 32] based upon any ground . . . [r]aisable on direct appeal . . . or on post-trial 

motion . . . .”); Ariz.R.Crim.P. 32.2(a)(3) (“A defendant shall be precluded from 

relief under [Rule 32] based upon any ground . . . [t]hat has been waived at trial, on 

appeal, or in any previous collateral proceeding.”); Beaty, 303 F.3d at 987. As such, 

the merits of the claims need not be addressed unless Peyron establishes cause and 

prejudice or that a fundamental miscarriage of justice has occurred. 

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 Peyron has not attempted to establish cause for the default and, even if he 

could, he cannot establish prejudice because this claim is without merit. The 

Supreme Court has “repeatedly held that a state court’s interpretation of state law . . . 

binds a federal court sitting in habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76 

(2005). To overcome this prohibition, a petitioner must establish that that the state 

court’s interpretation was so arbitrary or capricious as to constitute an independent 

due process or Eighth Amendment violation. See Lewis v. Jeffers, 497 U.S. 764, 780 

(1990). Without such a showing, the federal court is bound by the state court’s 

interpretation of its own law, including its felony murder statute. Hawkins v. Mullin, 

291 F.3d 658, 662-63 (10th Cir. 2002); see also Estelle v. McGuire, 502 U.S. 62, 68 

(1991) (federal habeas corpus relief does not lie for errors of state law, and federal 

courts may not reexamine state court determinations on state law issues). 

 Arizona’s murder statute, A.R.S. § 13-1105 provides, defines felony murder 

as committing a predicate felony, including robbery and kidnapping, “and, in the 

course of and in furtherance of the offense or immediate flight from the offense, the 

person or another person causes the death of any person.” A.R.S. § 13-1105(2). 

Here, it is undisputed that the decedent ran out the back door of the stereo store and 

was shot by one of the victims of the robbery and, when the police arrived, they 

found him dead behind the store. These facts fit squarely within the Arizona felony 

murder statute and Peyron has identified no authority that suggests, much less 

establishes, that Arizona has interpreted the statute in an arbitrary or capricious 

manner. As such, the default of this claim is not excused. 

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 c. Ground Three

 In Ground Three of the Amended Petition, Peyron alleges that his trial counsel 

“argued a motion but had no proof. He also lied to the court.” Amended Petition, p. 

8. Peyron proceeds to explain that his trial counsel filed a motion to suppress his 

post-arrest statements on the grounds that Peyron had suffered a head injury and 

concussion during the robbery and should not have been questioned. Id. He 

contends that trial counsel should have produced the results of a CT scan procedure 

that he underwent after his arrest. Id. 

 Although Peyron appealed the trial court’s denial of his motion to suppress on 

direct appeal, it was never raised as a claim of ineffective assistance of counsel. Ex. 

E, pp. 3-5. Peyron does not contend otherwise, explaining that “[t]his evidence was 

not seen” by PCR counsel. Id. Thus, the claim was not exhausted. Additionally, 

Peyron has not countered the Respondents’ contention that the claim is procedurally 

barred under Arizona law. See Ariz.R.Crim.P. 32.2(a)(1) (“A defendant shall be 

precluded from relief under [Rule 32] based upon any ground . . . [r]aisable on direct 

appeal . . . or on post-trial motion . . . .”); Ariz.R.Crim.P. 32.2(a)(3) (“A defendant 

shall be precluded from relief under [Rule 32] based upon any ground . . . [t]hat has 

been waived at trial, on appeal, or in any previous collateral proceeding.”); Beaty, 

303 F.3d at 987. However, like those raised in Ground One, Peyron’s allegations can 

be construed as alleging that his default is excused by the fact that his PCR counsel 

was ineffective for failing to allege ineffective assistance of trial counsel. As such, 

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the Court will consider whether Peyron has shown “cause” to excuse his procedural 

default under the “narrow circumstances” described in Martinez. 

 As noted previously, under Martinez, Peyron bears the burden to show that 

“the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, 

which is to say that the prisoner must demonstrate that the claim has some merit.” 

Sexton, 679 F.3d at 1157. He has not done so. Under Strickland v. Washington, 466 

U.S. 668 (1984), a meritorious ineffective assistance of counsel claim requires that a 

petitioner show: (1) deficient performance– that counsel’s representation fell below 

the objective standard for reasonableness; and (2) prejudice– there is a reasonable 

probability that, but for counsel's unprofessional errors, the result of the proceeding 

would have been different. Id. at 687-88. In the Amended Petition, Peyron merely 

mentions that he had a CT scan and contends that his counsel should have presented 

it in relation to the motion to suppress his statement to police. However, he does not 

claim that the information contained in the scan was reasonably likely to change the 

outcome of his motion to suppress or subsequent trial. See Bragg v. Galaza, 242 

F.3d 1082, 1088 (9th Cir. 2001) (petitioner failed to establish prejudice where he did 

“nothing more than speculate” that a witness would have provided helpful 

testimony); see also Lambert v. Blodgett, 393 F.3d 943, 982 (9th Cir. 2004) (“Courts 

have generally rejected claims of ineffective assistance premised on a failure to 

investigate where the . . . additional evidence was unlikely to change the outcome at 

trial.”); Jackson v. Calderon, 211 F.3d 1148, 1154-55 (9th Cir.2000) (finding no 

prejudice from counsel's alleged failure to investigate when petitioner did not meet 

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his burden to present evidence that investigation would have revealed favorable 

evidence). Nor could he effectively make such an argument. In addressing this 

claim on direct appeal, the Arizona Court of Appeals rightly noted that Peyron had 

offered no evidence to support his contention that he had sustained a “severe 

concussion.” Ex. E, p. 4. The court also noted that he had been released from the 

hospital and that during the interrogation showed no outward signs suggesting his 

will had been overborne. Ex. E, p. 5. These considerations establish that this claim 

has no potential merit and that Peyron is entitled to no relief under Martinez for his 

procedural default of this claim. 

 d. Ground Four

 In Ground Four, Peyron alleges that the prosecutor admitted that one of the 

victims, A.M., “says one thing & at trial another.” In support of this claim, Peyron 

points out that there were minor discrepancies in the victims’ testimony, both saying 

they pushed the other, and that this testimony was inconsistent with their previous 

statements. Amended Petition, p. 9. Once again, Peyron admits that this claim was 

not presented to the Arizona Court of Appeals, stating that “none of my lawyer[s] 

seen these facts.” Id. He has not countered the Respondents’ contention that the 

claim is procedurally barred under Arizona law. See Ariz.R.Crim.P. 32.2(a)(1) (“A 

defendant shall be precluded from relief under [Rule 32] based upon any ground . . . 

[r]aisable on direct appeal . . . or on post-trial motion . . . .”); Ariz.R.Crim.P. 

32.2(a)(3) (“A defendant shall be precluded from relief under [Rule 32] based upon 

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any ground . . . [t]hat has been waived at trial, on appeal, or in any previous collateral 

proceeding.”); Beaty, 303 F.3d at 987. 

 The Court cannot consider the merits of this unexhausted and procedurally 

defaulted claim unless Peyron can demonstrate cause for his noncompliance and 

actual prejudice. See Schlup, 513 U.S. at 321. Petitioner has attempted to do neither. 

As a threshold matter, it is unlikely that Peyron could show prejudice based on the 

admission of evidence under state law because such claims rarely warrant habeas 

relief. Estelle, 502 U.S. at 67. Moreover, the Court cannot discern from the 

argument what prejudice is alleged to have come from the purported inconsistencies. 

See Magby, 741 F.2d 244 (“prejudice” is actual harm resulting from an alleged 

constitutional error or violation); Holley v. Yarborough, 568 F.3d 1091, 1101 (9th 

Cir. 2009) (no basis for habeas relief based on admission of evidence unless it 

renders trial “fundamentally unfair”). Because Peyron has not identified a 

constitutional violation that resulted in prejudice, and because an error of state law is 

insufficient to overcome his procedural default, this claim is not properly before the 

Court and must be dismissed. 

III. Recommendation

 Based on the foregoing, the Magistrate Judge RECOMMENDS that the 

District Court, after its independent review, dismiss Peyron’s Amended Petition for 

Writ of Habeas Corpus (Doc. 10). 

 This Recommendation is not an order that is immediately appealable to the 

Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), 

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Federal Rules of Appellate Procedure, should not be filed until entry of the District 

Court’s judgment. 

 However, the parties shall have fourteen (14) days from the date of service of 

a copy of this recommendation within which to file specific written objections with 

the District Court. See 28 U.S.C. § 636(b)(1) and Rules 72(b), 6(a) and 6(e) of the 

Federal Rules of Civil Procedure. Thereafter, the parties have fourteen (14) days 

within which to file a response to the objections. Replies shall not be filed without 

first obtaining leave to do so from the District Court. If any objections are filed, this 

action should be designated case number: CV 15-0414-TUC-JGZ. Failure to timely 

file objections to any factual or legal determination of the Magistrate Judge may be 

considered a waiver of a party’s right to de novo consideration of the issues. See 

United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.2003)(en banc). 

 Dated this 10th day of February, 2017. 

Honorable Jacqueline M. Rateau 

United States Magistrate Judge 

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