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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Jeffrey DeLoach, Jr., 

Petitioner, 

v. 

Charles Ryan, et al., 

Respondents.

No. CV-15-00530-TUC-RM

ORDER 

Before the Court is a Report and Recommendation (Doc. 37) in which Magistrate 

Judge Rateau recommends that this Court dismiss Petitioner’s Amended Petition (Doc. 

21). Also before the Court is Petitioner’s Request for Production of Documents (Doc. 

40). As explained more fully below, the Court will adopt the Report and 

Recommendation in full, dismiss the Amended Petition, and deny the Request for 

Production of Documents as moot. 

I. Background 

Petitioner Jeffrey DeLoach, Jr., who is currently housed at ASPC-Manzanita in 

Tucson, Arizona, brings this habeas petition pursuant to 28 U.S.C. § 2254 challenging his 

2009 conviction on two counts of aggravated assault and one count of disorderly conduct. 

He is serving two consecutive 7.5 year terms on those convictions. Petitioner originally 

filed his original Petition in November 2015 (Doc. 1) and an Amended Petition in April 

2016 (Doc. 21.) In June 2016, Respondents filed a Response to the Amended Petition 

(Doc. 22), and Petitioner filed a Reply (Doc. 30). Magistrate Judge Jaqueline Rateau 
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issued a Report and Recommendation on May 21, 2018 (Doc. 37). 

II. Amended Petition 

Petitioner’s Amended Petition alleges that at his trial and in his post-conviction 

relief (“PCR”) proceedings, he was denied effective assistance of counsel in violation of 

his 6th Amendment rights. (Doc. 21 at 13.) He claims that trial counsel was ineffective 

for (1) failing to rebut evidence that Petitioner was a gang member, (2) failing to move 

for a new trial when the State withdrew from seeking the gang-membership aggravation, 

(3) failing to request that Petitioner’s convictions be vacated based on allegedly perjured 

testimony presented by the State regarding Petitioner’s gang membership, and (4) failing 

to advise Petitioner not to testify on his own behalf. (Id. at 16-17.) Petitioner argues that 

these failings were so severe as to constitute “structural error” and that they likely 

affected the verdict, which Petitioner contends was only weakly supported by the 

evidence. (Id. at 40, 51). Petitioner also claims that his PCR counsel was ineffective for 

failing to properly present the issues regarding trial counsel’s ineffective assistance and 

for inappropriately and ineffectively bringing a newly discovered evidence claim in an 

attempt to obtain a new trial. (Id. at 17, 49.) He argues that he should be granted an 

evidentiary hearing in order to more fully develop his ineffective assistance of counsel 

claims. (Id. at 53.) 

 Petitioner did not raise any ineffective assistance of counsel (“IAC”) claims in his 

direct appeal (see Doc. 23-4), or in his Petition for Post-Conviction Relief (see Doc. 24-

7). 

III. Report and Recommendation 

 Judge Rateau’s Report and Recommendation finds that, although the Amended 

Petition was timely filed, each of the claims raised are unexhausted and inexcusably 

procedurally defaulted. (Doc. 37 at 6.) Petitioner filed an Objection to the Report and 

Recommendation (Doc. 38), to which Respondents responded (Doc. 39). 

 A. Standard of Review 

 A district judge must “make a de novo determination of those portions” of a 
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magistrate judge’s “report or specified proposed findings or recommendations to which 

objection is made.” 28 U.S.C. § 636(b)(1). The advisory committee’s notes to Rule 

72(b) of the Federal Rules of Civil Procedure state that, “[w]hen no timely objection is 

filed, the court need only satisfy itself that there is no clear error on the face of the record 

in order to accept the recommendation” of a magistrate judge. Fed. R. Civ. P. 72(b) 

advisory committee’s note to 1983 addition. See also Johnson v. Zema Sys. Corp., 170 

F.3d 734, 739 (7th Cir. 1999) (“If no objection or only partial objection is made, the 

district court judge reviews those unobjected portions for clear error.”); Prior v. Ryan, 

CV 10-225-TUC-RCC, 2012 WL 1344286, at *1 (D. Ariz. Apr. 18, 2012) (reviewing for 

clear error unobjected-to portions of Report and Recommendation). 

 B. Discussion 

 Respondents did not object to Judge Rateau’s finding that the Amended Petition is 

timely, and because the finding is not clearly erroneous, the Court will adopt this portion 

of the recommendation. (See Doc. 37 at 6-11.) 

Judge Rateau found that all of Petitioner’s claims are unexhausted and 

procedurally defaulted. (Doc. 37 at 13.) Additionally, Judge Rateau found that even if 

procedural default is excused under Martinez v. Ryan, 566 U.S. 1 (2012), each of 

Petitioner’s IAC claims fail on the merits. (Id.) Judge Rateau addressed each IAC claim 

under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), which 

requires a habeas petitioner to show both deficient performance and prejudice in order to 

establish an IAC claim. 

 Although Petitioner purports to bring “specific written objections” to Judge 

Rateau’s Report and Recommendation (Doc. 38 at 1), his Objections, even if generously 

construed, object only to Judge Rateau’s finding that Petitioner was not prejudiced by 

PCR counsel’s failure to raise an IAC claim.1

 Nothing in Petitioner’s Objection addresses Judge Rateau’s finding that 

 1

 Instead of making specific objections to Judge Rateau’s findings and recommendations, Petitioner makes arguments regarding the alleged defects in his state-court proceedings and re-states the bases for his Petition. 
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Petitioner’s claims are unexhausted and procedurally defaulted, and that finding is not 

clearly erroneous. Furthermore, although Petitioner’s Objection asserts that he was 

prejudiced by trial counsel’s and PCR counsel’s alleged failures, his Objection is nonspecific and fails to raise any argument that even remotely calls into question Judge 

Rateau’s findings that Petitioner’s IAC claims fail on the merits even if procedural 

default is excused under Martinez. Accordingly, the Court will adopt Judge Rateau’s 

Report and Recommendation in full. 

IV. Request for Production of Documents 

Two months after the Report and Recommendation issued, Petitioner filed a 

Request for Production of Documents. (Doc. 40.) Respondents responded in opposition. 

(Doc. 42.) It is not clear what documents Petitioner seeks, or for what purpose. Because 

the Petition will be dismissed, and because Petitioner has failed to show good cause for 

discovery pursuant to Rule 6 of the Rules Governing § 2254 Cases in the United States 

District Courts, the Court will deny Petitioner’s Request for Production of Documents. 

 Accordingly, 

 IT IS ORDERED that Magistrate Judge Jaqueline Rateau’s Report and 

Recommendation (Doc. 37) is accepted and adopted in full. 

 IT IS FURTHER ORDERED that the Amended Petition for Writ of Habeas 

Corpus pursuant to 28 U.S.C. § 2254 (Doc. 21) is dismissed. The Clerk of Court is 

directed to enter judgment accordingly and close this case. 

IT IS FURTHER ORDERED that Petitioner’s Request for Production of 

Documents (Doc. 40) is denied. 

. . . . 

. . . . 

. . . . 

. . . . 

. . . . 

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

Section 2254 Cases, the Court declines to issue a certificate of appealability, because 

reasonable jurists would not find the Court’s ruling debatable. See Slack v. McDaniel, 

529 U.S. 473, 478, 484 (2000). 

 Dated this 19th day of October, 2018.