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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA

 

 The Court has before it Petitioner’s Amended Petition for Writ of Habeas Corpus 

pursuant to 28 U.S.C. § 2254. (Doc. 5.) The Court has also received Respondents’ 

Limited Answer (Doc. 13), Petitioner’s Response to the Limited Answer (Doc. 15), 

Supplemental Exhibits from Respondent (Doc. 17), the first Report and Recommendation 

of Magistrate Judge Bridget S. Bade and the Order of this Court. (Docs. 18, 19.) We 

also have before us Respondents’ Supplemental Limited Answer (Doc. 53), Petitioner’s 

Reply Response to Respondents’ Supplemental Limited Answer (Doc. 54), the Report 

and Recommendation of the Magistrate Judge (Doc. 55), Petitioner’s Objections (Doc. 

56), Response to the Petitioner’s Objections (Doc. 57), and the Petitioner’s Notice of 

Procedural Bar. (Doc. 58.) 

 Petitioner argues in Ground One that the aggravated sentence has violated his right 

to a jury trial under Blakely v. Washington, 542 U.S. 296 (2004). (Doc. 5 at 6, 14-16.) In 

Ground Two, Petitioner argues one of the aggravating factors, the existence of prior 

convictions, had been improper because those convictions were too remote under Arizona 

James Albert Ashpole, 

 

Petitioner, 

v. 

Justin Beresky, et al., 

Respondents. 

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No. CV-15-02300-PHX-SPL

ORDER 
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Law. (Id. at 7, 16-17.) Respondents argue the petition must be dismissed with prejudice 

because both habeas claims are technically exhausted and precluded under the 

independent and adequate state-ground doctrine. Additionally, Respondents argue 

Petitioner does not allege a basis to excuse the procedural defaults, which he could not 

otherwise have established given he had been aware of the factual basis of both claims 

prior to filing his PCR petition. (Docs. 13, 17, 53.) Judge Bade concluded the 

Petitioner‘s claims are procedurally barred. (Doc. 55.) 

 A district judge “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). When a party files 

a timely objection to an R&R, the district judge reviews de novo those portions of the 

R&R that have been “properly objected to.” Fed. R. Civ. P. 72(b). A proper objection 

requires specific written objections to the findings and recommendations in the R&R. See 

United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); 28 U.S.C. § 

636(b)(1). It follows that the Court need not conduct any review of portions to which no 

specific objection has been made. See Reyna-Tapia, 328 F.3d at 1121; see also Thomas v. 

Arn, 474 U.S. 140, 149 (1985) (discussing the inherent purpose of limited review is 

judicial economy). Further, a party is not entitled as of right to de novo review of 

evidence or arguments which are raised for the first time in an objection to the R&R, and 

the Court’s decision to consider them is discretionary. United States v. Howell, 231 F.3d 

615, 621-622 (9th Cir. 2000). 

 Petitioner has presented the same arguments that he initially made in his Petition 

for Writ of Habeas Corpus. (Doc. 5, 15, 54.) This Court has, nonetheless, undertaken an 

extensive review of the sufficiently developed record and the objections to the findings 

and recommendations in the very detailed R&R, without the need for an evidentiary 

hearing or appointing counsel for the Petitioner. After conducting a de novo review of the 

issues and objections, the Court reaches the same conclusions reached by Judge Bade. 

Specifically, the Court finds the Petitioner claims are procedurally barred. 

 Having carefully reviewed the record, the Petitioner has not shown that he is 
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entitled to habeas relief. The R&R will be adopted in full. Accordingly,

IT IS ORDERED:

1. That the Magistrate Judge’s Report and Recommendation (Doc. 55) is 

accepted and adopted by the Court; 

2. That the Petitioner’s Objections (Doc. 56) are overruled; 

3. That the Petition for Writ of Habeas Corpus (Doc. 5) is denied and this 

action is dismissed with prejudice; 

4. That 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 

5. That the Clerk of Court shall terminate this action. 

 Dated this 27th day of April, 2018.

Honorable Steven P. Logan

United States District Judge