White #351380 v. Thornell et al

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Timothy White,
Petitioner,
v.
Ryan Thornell, et al.,
Respondents.
No. CV-25-08042-PCT-ROS
ORDER
Before the Court is Magistrate Judge Deborah M. Fine’s Report and
Recommendation (“R&R”) recommending Petitioner’s pro se Petition Under 28 U.S.C. §
2254 for a Writ of Habeas Corpus (“Petition”) be denied and dismissed with prejudice.
(Doc. 9.) Neither party filed objections to the R&R. The Court will accept and adopt the
R&R as follows.
I. BACKGROUND
Magistrate Judge Fine recounted the factual and procedural background of
Petitioner Timothy White’s trial, appeals, and post-conviction relief (“PCR”) proceedings
in state court. (Doc. 13 at 2–13). As neither party objects to this portion of the R&R, the
Court hereby accepts and adopts it. See Thomas v. Arn, 474 U.S. 140, 152 (1989) (“There
is no indication that Congress . . . intended [the Federal Magistrates Act, 28 U.S.C. §
636(b)(1)(C)] to require a district judge to review a magistrate’s report to which no
objections are filed.”); 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.”).
Case 3:25-cv-08042-ROS Document 10 Filed 03/25/26 Page 1 of 5

- 2 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Petitioner filed his pro se Petition (Doc. 1) on February 27, 2025, seeking
exoneration and dismissal of his criminal case by raising several grounds for relief:
In Ground 1(a), Petitioner asserts that his trial counsel was ineffective for
failing to “object to a double jeopardy violation.” In Ground 1(b), Petitioner
asserts that his trial counsel was ineffective for failing to communicate a plea
agreement to Petitioner. In Ground 2(a), Petitioner asserts that the trial judge
presiding over his case committed judicial misconduct by denying a motion
to suppress evidence. In Ground 2(b), Petitioner asserts that the trial judge
committed misconduct “by allowing the double je[o]pardy violation in his
court room.” In Ground 3, Petitioner asserts that his Fourth Amendment
rights were violated by a law enforcement officer “not checking & attending
to the temp[orary] tag in the rear window,” which initiated an
unconstitutional search of the vehicle. In Ground 4, Petitioner alleges that his
protection against double jeopardy was violated by “the ineffective
assistance of coun[sel] by not offering me a plea agreement.”
(Doc. 9 at 8.)
Respondents filed an Answer on April 30, 2025, conceding that the Petition was
timely but arguing that “Petition Grounds 1(a), 2(b), and 4 are procedurally defaulted
without excuse; Grounds 2(a) and 3 are non-cognizable in federal habeas proceedings; and
Ground 1(b) fails on the merits.” (Id.) Respondents mailed their Answer to Petitioner at his
address of record, (Doc. 8 at 22), and Petitioner has not replied as of the date of this Order.
On June 29, 2025, Magistrate Judge Fine issued an R&R recommending the Petition
be denied and dismissed with prejudice and that a certificate of appealability be denied.
(Doc. 9.) Neither party filed objections to the R&R.
II. LEGAL STANDARD
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). The district court
must review de novo the portions to which an objection is made. Id. When no objection is
made, the district court need only review de novo a magistrate judge’s conclusions of law.
See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (citing Turner v. Duncan, 158
F.3d 449, 455 (9th Cir. 1998)).
III. REPORT AND RECOMMENDATION
A. Procedural Default
In the R&R, the Magistrate Judge found Grounds 1(a), 2(b), and 4 of the Petition
Case 3:25-cv-08042-ROS Document 10 Filed 03/25/26 Page 2 of 5

- 3 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
are procedurally defaulted. “Petitioner’s Ground 1(a) claim is subject to an express
procedural bar” because he “failed to present his Ground 1(a) claim to the state courts in a
procedurally appropriate manner in his PCR proceedings.” (Doc. 9 at 15–16.) Similarly,
Ground 2(b) is procedurally defaulted because “Petitioner did not raise his Ground 2(b)
claim in his supplemental brief in his direct appeal of his convictions and sentences” nor
“in his PCR petition in the trial court.” (Id. at 16.) Lastly, Ground 4 is procedurally
defaulted because “Petitioner did not raise his Ground 4 . . . claim in his PCR petition in
the trial court.” (Id. at 17.) The Magistrate Judge further found that “Petitioner had not met
his burden” of “establishing either (1) both cause and actual prejudice, or (2) a miscarriage
of justice/actual innocence” to excuse the procedural defaults of Grounds 1(a), 2(b), and 4.
(Id. at 17–19.)
B. Non-Cognizability
The Magistrate Judge found Petitioner’s Fourth Amendment claims under Grounds
2(a) and 3 are not cognizable under Stone v. Powell, 428 U.S. 465, 494–95 (1976)
(“[W]here the State has provided an opportunity for full and fair litigation of a Fourth
Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the
ground that evidence obtained in an unconstitutional search or seizure was introduced at
his trial.”). Specifically, Petitioner had failed to demonstrate “that he was not afforded an
adequate hearing on his Fourth Amendment claims asserted in Grounds 2(a) and 3” by the
state court, which precludes federal habeas corpus relief on these claims. (Doc. 9 at 19–22.)
C. Merits
The Magistrate Judge found that Ground 1(b) for ineffective assistance of counsel
fails on the merits. To prevail on this claim, Petitioner had to show that his trial counsel’s
performance (1) was objectively deficient, and (2) caused Petitioner prejudice. Strickland
v. Washington, 466 U.S. 668, 687 (1984). The Magistrate Judge found Ground 1(b) fails
under both Strickland prongs. First, Petitioner’s counsel was not deficient in failing to
communicate a plea offer stipulating to probation during the week before Petitioner’s trial
because “[t]he [trial] record is clear that Petitioner did not maintain contact with trial
Case 3:25-cv-08042-ROS Document 10 Filed 03/25/26 Page 3 of 5

- 4 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
counsel and that trial counsel made significant efforts to contact Petitioner prior to trial and
opposed to trying Petitioner in absentia.” (Doc. 9 at 26–27.) Second, Petitioner failed to
establish prejudice from his counsel’s failure to communicate the plea offer:
Petitioner has not shown that if he had been informed of the plea offer of
probation, there is a “reasonable probability” that he would have accepted
the plea offer. At sentencing, Petitioner explicitly stated, “I don’t want to do
no probation, be put in no homes or anything, trying to make money off me
saying stupid stuff.” Petitioner also expressed his desire to appeal his
convictions so that he could proceed to retrial. These statements belie
Petitioner’s current position that he would have accepted a plea offer of
probation.
(Id. at 28) (citations omitted).
D. Certificate of Appealability
Lastly, the Magistrate Judge recommended that a certificate of appealability be
denied. To obtain a certificate of appealability, a petitioner must make “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard is
satisfied by showing either (1) “jurists of reason could disagree with the district court’s
resolution of [the] constitutional claims” or (2) “jurists could conclude the issues presented
are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S.
322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)). If a habeas claim is
dismissed on procedural grounds, a petitioner must show that jurists of reason would find
it debatable (1) “whether the petition states a valid claim of the denial of a constitutional
right,” and (2) “whether the district court was correct in its procedural ruling.” Slack, 529
U.S. at 484.
The Magistrate Judge reasoned that a certificate of appealability should be denied
because dismissal of Petitioner’s constitutional claims is warranted “by a plain procedural
bar and reasonable jurists would not find the procedural ruling debatable, because
Petitioner has not made a substantial showing of the denial of a constitutional right, and
because jurists of reason would not find the Court’s rejection on constitutional grounds of
Petitioner’s claims to be debatable.” (Doc. 9 at 28–29.)
Case 3:25-cv-08042-ROS Document 10 Filed 03/25/26 Page 4 of 5

- 5 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
IV. CONCLUSION
As explained in the R&R, each of Plaintiff’s grounds for habeas relief fails because
they are procedurally defaulted without excuse, non-cognizable, or fail on the merits. The
Court finds the R&R is thorough and well-reasoned, without any clear error of law or fact.
See United States v. Remsing, 874 F.2d 614, 617–18 (9th Cir. 1989). Pursuant to 28 U.S.C.
§ 636(b)(1), the Court accepts and adopts the R&R as the opinion of the Court. For the
reasons stated in the R&R, the Court denies and dismisses the Petition with prejudice and
denies issuance of a certificate of appealability.
Accordingly,
IT IS ORDERED the Report and Recommendation (Doc. 9) is adopted as the
opinion of the Court.
IT IS FURTHER ORDERED the Petition Under 28 U.S.C. § 2254 for a Writ of
Habeas Corpus (Doc. 1) is DENIED and DISMISSED WITH PREJUDICE. The Clerk
of Court is directed to enter judgment in favor of Respondents and close this case.
IT IS FURTHER ORDERED pursuant to Rule 11(a) of the Rules Governing
§ 2254 Cases, a certificate of appealability is DENIED because reasonable jurists would
not find the Court’s resolution of Petitioner’s claims debatable nor are the issues presented
adequate to deserve encouragement to proceed further.
Dated this 25th day of March, 2026.
Honorable Roslyn O. Silver
Senior United States District Judge
Case 3:25-cv-08042-ROS Document 10 Filed 03/25/26 Page 5 of 5