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NOT FOR PUBLICATION 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Zachary M. White, 

Petitioner, 

v. 

Charles L. Ryan, et al., 

Respondents.

No. CV-16-00288-PHX-DJH

ORDER 

 Pending before the Court is pro se Petitioner's Petition for Writ of Habeas Corpus 

pursuant to 28 U.S.C. § 2254 (Doc.1) to which Respondents filed an Answer (Doc. 11). 

Following a sound analysis, Magistrate Judge John Z. Boyle recommended denial of and 

dismissal with prejudice of the Petition. (Doc. 27). Petitioner filed timely objections. 

(Doc. 28). Respondents filed none. 

I. R&R 

 The R & R accurately identifies Petitioner’s three grounds for relief: “(1) a 

violation of the Fifth Amendment right against Double Jeopardy; (2) a violation of the 

Sixth Amendment right to effective assistance of counsel; and (3) a violation of the Fifth 

Amendment right to due process of law based on alleged prosecutorial misconduct.” 

(Doc. 27 at 3:19-21) (citation omitted). Two different legal theories comprise the first 

ground for relief. First, Petitioner “claims that the indictment was multiplicitous in 

violation of the Double Jeopardy Clause because it charged a single act in two different 

counts.” (Id. at 8:20-21) (citation omitted). Second, Petitioner claims that his second 
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trial violated the Fifth Amendment’s Double Jeopardy Clause. 

 In their answer, Respondents took the position that the first part of ground one, 

and the second and third grounds were procedurally barred. As to the only claim they 

deemed to be properly exhausted, Petitioner’s claim that his second trial violated the Fifth 

Amendment’s Double Jeopardy Clause, Respondents argued that that claim failed on the 

merits. 

 The Magistrate Judge carefully and accurately set forth the factual background and 

trial proceedings, as well as the governing legal principles with respect to procedural 

default and merits review. (See Doc. 27 at 1:20 - 8:17). Applying these principles, the 

Magistrate Judge concluded as follows. Petitioner’s Double Jeopardy claim based upon 

the “multiplicitous” nature of his indictment was unexhausted and procedurally defaulted 

because such claim was never “’fairly presented’ to the state courts[.]” (Id. at 8:20; 8:26-

27) (citation omitted)). It is well settled, as the Magistrate Judge correctly wrote, that 

“[t]he Supreme Court has held that in all cases except those reversed on grounds of 

insufficient evidence, the Double Jeopardy Clause does not prevent a retrial. (Id. at 10:1-

3) (See, e.g., Bullington v. Missouri, 451 U.S. 430, 442 (1981) (when a case is reversed 

for any reason, but insufficient evidence, “the original conviction has been nullified” and 

“‘the slate wiped clean”) (other citation omitted)). Based upon the foregoing, the 

Magistrate Judge further found no merit to Petitioner’s ineffective assistance of counsel 

("IAC") claim predicated upon his trial counsel’s “fail[ure] to prevent violations against 

‘double jeopardy’ in violation of the Fifth Amendment.” (Id. at 10:20-21). 

 As to Petitioner’s third ground, alleged prosecutorial misconduct, the Magistrate 

Judge first found that this claim, too, was “unexhausted and procedurally defaulted 

because Petitioner raise[d] the claim for the first time” therein. (Doc. 27 at 11:13-14). 

The Magistrate Judge found this claim to be without merit as well, reasoning that 

“Petitioner did not demonstrate that any of the statements were improper. Prosecutors and 

defense lawyers are given ‘wide latitude’ in closing arguments.” (Id. at 12:6-9) (citing 

United States v. Sayetsitty, 107 F.3d 1405, 1409 (9th Cir. 1997)). 
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 Lastly, the Magistrate Judge found that “[t]he record is sufficiently developed” 

such that “an evidentiary hearing [wa]s [not] necessary[.].” (Id. at 12:21-22) (citing 

Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 2011)) (other citation omitted). 

 For all of these reasons, the Magistrate Judge found that Petitioner was not entitled 

to habeas corpus relief, and recommended denial of the Petition and dismissal with 

prejudice. The Magistrate Judge further recommended denial of a “Certificate of 

Appealability and leave to proceed in forma pauperis on appeal. . . because dismissal of 

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

procedural ruling debatable, and because Petitioner has not made a substantial showing of 

the denial of a constitutional right.” (Doc. 27 at 13:7-11). 

II. Petitioner's Objections 

 Petitioner’s objections are scant, to say the least. In part one, which Plaintiff 

evidently believes is directed to his IAC claim, Plaintiff states that “[a]ll” four of the 

attorneys identified therein “informed [him] that ‘indictment was fine.’” (Doc. 28 at 1). 

Based upon this unsupported statement, Petitioner contends that “[t]he burden to prove 

[IAC] has been established.” (Id.) (citations omitted). As will be seen, part two of 

Petitioner’s objections, entitled “Procedural Bar[,] is confusing. Id. (emphasis omitted). 

Suffice it to say for now that Petitioner vaguely states that “failure to review the claim 

will result in the fundamental miscarriage of justice.” Id. Continuing, Plaintiff contends 

that “procedural default w[ill] be excused even in the absence of cause when a 

constitutional violation has probably resulted in the conviction.” Id. In conclusion, 

Petitioner baldly asserts that he should be granted an evidentiary hearing “given the epic 

constitution[al] violations” to which allegedly he has been subjected. Id.. 

III. Standard of Review 

 This Court must “make a de novo determination of those portions of the report or 

specified proposed findings or recommendations to which” a Petitioner objects. 28 

U.S.C. § 636(b)(1)(C); see also Fed.R.Civ.P. 72(b)(3) (“The district judge must 

determine de novo any part of the magistrate judge's disposition that has been properly 

objected to.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (same). 
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Further, 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)(C); Fed.R.Civ.P. 

72(b)(3). At the same time, however, the relevant provision of the Federal Magistrates 

Act, 28 U.S.C. § 636(b)(1)(C), “does not on its face require any review at all. . . of any 

issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1989) 

(emphasis added); see also Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005) 

(“Of course, de novo review of a R & R is only required when an objection is made to the 

R & R, [Reyna–Tapia,] 328 F.3d [at] 1121. . . (“Neither the Constitution nor the [Federal 

Magistrates Act] requires a district judge to review, de novo, findings and 

recommendations that the parties themselves accept as correct”)[.]”). Likewise, it is 

well-settled that “‘failure to object to a magistrate judge's factual findings waives the 

right to challenge those findings [,]’” Bastidas v. Chappell, 791 F.3d 1155, 1159 (9th Cir. 

2015) (quoting Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (internal 

quotation marks omitted) (footnote omitted)), as Magistrate Judge Boyle advised the 

parties herein. (Doc. 27 at 13:22-14:1) (citation omitted). 

IV. Discussion 

 Petitioner did not object at all to the R&R's background section or its recitation of 

the governing legal principles. Thus, consistent with 28 U.S.C. § 636(b)(1)(C), and the 

case law construing it, the Court will not review that section. 

 Apparently Petitioner is asserting IACs against four of his attorneys due to the 

purportedly multiplicitous indictment. However, as the Magistrate Judge accurately 

stated and went on to analyze, the only IAC claim which Petitioner asserted was a 

violation of the Sixth Amendment based upon “trial counsel[’s] fail[ure] to prevent 

violations against ‘double jeopardy’ in violation of the Fifth Amendment.” (See Doc. 27 

at 10: 19-21). This is a separate and distinct issue from the IAC which Petitioner now is 

asserting for the first time in his objections to the R & R. Given that this particular IAC, 

based upon an allegedly multiplicitous indictment is not one of the grounds which the 

Petition raises, understandably the Magistrate Judge did not address it. Obviously then 

this issue is not subject to review by this Court. 
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 Petitioner’s “procedural bar” objection is, likewise, without merit. Petitioner 

objects to “Ground III,” at page 10, line 13 of the R & R. Doc. 28 at 2. This objection is 

perplexing because the R & R did not begin to address ground three (alleged 

prosecutorial misconduct) until page 10, line 27. Page 10, line 13, corresponds to the 

highlighted language in the following sentence. “[T]he Arizona Court of Court of 

Appeals correctly applied established federal law by rejecting Petitioner’s reliance on 

State v. Aguilar, 217 Ariz. 235 (App. 2007)[,] for the unsupported assertion that the trial 

court committed a structural error that bars retrial.” (Doc. 27 at 10:12-15) (citation 

omitted) (emphasis added). However, this sentence is in the section of the R & R 

addressing ground one(b), that is, the second trial was barred by the Fifth Amendment’s 

Double Jeopardy Clause. The Court does not read Petitioner’s objections as objection to 

the Magistrate Judge’s findings as to ground one(b). To the extent that Petitioner’s 

objections could conceivably be read in that way, which is a stretch, there is no merit to 

such objections. The Magistrate Judge thoroughly addressed and soundly recommended 

denial of this ground on the merits. (See Doc. 27 at 9:8-10-17). 

 Insofar as Petitioner is objecting to the findings as to ground three (prosecutorial 

misconduct), he fares no better. Petitioner seems to be suggesting that the Magistrate 

Judge did not consider that claim on the merits, but he did. (See Doc. 27 at 12:1-19). 

Moreover, Petitioner simply recites that “failure to review the claim will result in a 

fundamental miscarriage of justice.” (Doc. 28 at 2). Petitioner did not and has not come 

forth with the type of evidence which is required to satisfy “’[t]o qualify for the 

‘fundamental miscarriage of justice’ exception to the procedural default rule[,]’” (Doc. 27 

at 7:3-4) (quoting Cook v. Schriro, 538 F.3d 1000, 1028 (9th Cir. 2008) (quoting Murray 

v. Carrier, 477 U.S. 478, 496 (1986) (other citation omitted)), as the R & R details. (See 

id. at 7:4-13). Thus, there is no basis for Petitioner’s objections to the R & R as it 

pertains to his third ground for relief. 

 Lastly, Petitioner’s unsubstantiated “belie[f]” of “epic constitution[al] 

violations[,]” particularly in the face of the Magistrate Judge’s complete and even-handed 

consideration of each of Petitioner’s grounds for relief, does not warrant an evidentiary 
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hearing, as Petitioner urges. (See Doc. 28 at 2). 

V. Conclusion 

 Having found no merit to Petitioner’s objections to the R & R, 

IT IS ORDERED that Magistrate Judge Boyle’s Report and Recommendation 

(Doc. 27) is ACCEPTED and ADOPTED as the Order of this Court. 

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

pursuant to 28 U.S.C. § 2254 (Doc. 1) is DENIED and DISMISSED WITH 

PREJUDICE. 

IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing 

Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis 

on appeal are DENIED because dismissal of the Petitioner is justified by a plain 

procedural bar and reasonable jurists would not find the ruling debatable, and because 

Petitioner has not made a substantial showing of the denial of a constitutional right. 

IT IS FINALLY ORDERED that the Clerk of the Court shall terminate this 

action and enter judgment accordingly. 

Dated this 23rd day of May, 2017. 

Honorable Diane J. Humetewa

United States District Judge