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NOT FOR PUBLICATION 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Kendall La Shonne White,

Petitioner, 

v. 

Charles L. Ryan, et al., 

Respondents.

No. CV-15-02482-PHX-JJT

ORDER 

 At issue is Petitioner Kendall LaShonne White’s Petition under 28 U.S.C. §2254 

for Writ of Habeas Corpus (Doc. 1). United States Magistrate Judge James F. Metcalf 

issued a Report and Recommendation (“R&R”) in the matter recommending denial and 

dismissal of the Petition (Doc. 8). The time to object passed over three months ago and 

no party has objected, timely or otherwise. The Court thus may accept the R&R without 

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

Court nonetheless has conducted its own review of the Petition, and for the reasons set 

forth in the R&R, this Court will deny and dismiss the Petition. 

 In the R&R, Judge Metcalf thoroughly and correctly analyzed the issues involved 

in the instant Petition, and because this Court will adopt the recommendations set forth in 

the R&R as well as the reasoning behind those recommendations, it will not restate those 

issues or their resolution here in detail. The R&R, in a very straightforward manner, 

reasons through the application of either a procedural bar or procedural defaults to each 

ground for relief set forth in the Petition. 

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 Petitioner’s Ground One—for ineffective assistance of counsel at his change of 

plea hearing where counsel allegedly failed to advise him that his plea deal had 

changed—was raised at Petitioner’s in pro per PCR petition, but was found untimely 

under Arizona’s time bar, Ariz. R. Crim. Pr. 32.4, which bar has been found to be an 

independent and adequate basis for denial of relief. Federal review of this ground is thus 

barred. 

 Ground Two—wherein Petitioner claims his sentence violated the terms of his 

plea agreement—was never presented to the Arizona Court of Appeals and therefore is 

unexhausted, and is now procedurally barred under Arizona’s time bar, Rule 32.4, and its 

preclusion bar, Rule 32.2(a)(2). 

 Ground Three—Petitioner’s claim of prosecutorial misconduct—was not 

exhausted and also is now procedurally defaulted due to passage of time. 

 Ground Four—a separate claim of ineffective assistance of counsel because that 

counsel left the room when Petitioner signed the plea agreement—was not exhausted 

because it was never presented to the PCR court or the Arizona Court of Appeals, and is 

now procedurally defaulted due to the passage of time. 

 Petitioner has failed to show either cause or prejudice sufficient to excuse his 

procedural defaults on Grounds Two, Three or Four, or to overcome the procedural bar 

on independent and adequate state grounds against maintaining Ground One, within the 

meaning of Reed v. Ross, 468 U.S. 1 (1984). Petitioner failed to assert a basis for cause 

and prejudice in his Petition, and once raised by Respondents in their limited response, he 

failed to file any reply at all. Petitioner’s claim of ineffective assistance of counsel in 

failing to advise him of the change in plea offer was not raised in the PCR proceeding. 

To the extent the Petition can be read to attribute that failure to ineffective PCR counsel, 

it might be subject to analysis under Martinez v. Ryan, 132 S. Ct. 1309 (2012). Judge 

Metcalf conducted that analysis, and correctly concluded, for the reasons set forth in the 

R&R, Martinez does not save the ground. 

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 IT IS ORDERED adopting Magistrate Judge Metcalf’s R&R (Doc. 8) in its 

entirety and incorporating same into this Order. 

 IT IS FURTHER ORDERED denying the Petition for Writ of Habeas Corpus 

pursuant to 28 U.S.C. § 2254 (Doc. 1) and dismissing this matter with prejudice. 

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

proceed in forma pauperis on appeal in this matter because the dismissal of the instant 

Petition is justified by a plain procedural bar and jurists of reason would not find the 

procedural ruling debatable. 

 Dated this 1st day of September, 2016. 

Honorable John J. Tuchi

United States District Judge 

Case 2:15-cv-02482-JJT Document 9 Filed 09/02/16 Page 3 of 3