Lapan v. Thornell

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
James R Lapan,
Petitioner,
v.
Ryan Thornell, et al.,
Respondents.
No. CV-24-00186-TUC-AMM
ORDER
On June 18, 2025, Magistrate Judge Lynnette C. Kimmins issued a Report and
Recommendation (“R&R”) recommending this Court deny Petitioner James R. LaPan’s 28
U.S.C. § 2254 Petition for Writ of Habeas Corpus.1 (Doc. 17.) LaPan filed Objections to
the R&R, and Respondent filed a Response. (Docs. 18–19.) For the reasons discussed
below, the Court will overrule LaPan’s objections and adopt the R&R.
A district court is not required to conduct “any review at all . . . of any issue that is
not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985); see also 28
U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which
objection is made.”). “[T]he court need only satisfy itself that there is no clear error on the
face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72(b), Advisory
Committee Notes 1983 Addition. A district judge may “accept, reject, or modify, in whole
or in part, the findings or recommendations” of the magistrate judge. 28 U.S.C. § 636(b)(1).
1 The Court spells Petitioner’s last name “LaPan” as done in the state court record,
Petitioner’s Right to Appeal Notice, the R&R, and Petitioner’s Objection.
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I. Discussion
LaPan was convicted of first-degree murder and first-degree burglary and sentenced
to natural life in prison. (Doc. 15-1 at 10.) LaPan appealed his conviction arguing inter alia
that the trial court erroneously denied his motion to suppress evidence seized during a
search of his home because the detective intentionally or recklessly omitted material
information from her search warrant affidavit in violation of Franks v. Delaware, 438 U.S.
154 (1978). (Id.) The Arizona Court of Appeals granted review of LaPan’s appeal but
denied relief. (Id. at 22.) The Arizona Supreme Court denied LaPan’s Petition for Review.
(Doc. 15-5 at 255.) LaPan filed a Notice of Post-Conviction Relief in the superior court but
did not file a Petition. (Id. at 261; Doc. 15-6 at 28.)
LaPan’s present Petition alleges the unlawful search of his home and car violated
his Fourth, Fifth, and Fourteenth Amendment rights. (Doc. 1.) The R&R recommends the
Petition be dismissed because LaPan’s Fourth Amendment claim is barred by Stone v.
Powell, 428 U.S. 465 (1976), as he fully litigated the claim in state court, and his due
process claim under the Fifth and Fourteenth Amendments was not fairly presented and
properly exhausted in state court.2 (Doc. 17 at 5–6.) The R&R further found LaPan’s due
process claim is no longer timely in state court, and thus the claim is technically exhausted
but procedurally defaulted. (Id. at 6 (citing Gray v. Netherland, 518 U.S. 152, 161–62
(1996); Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991)).) Finally, the R&R concluded
that LaPan did not establish cause and prejudice to overcome the default or show that a
fundamental miscarriage of justice will occur if his due process claim is not addressed on
the merits. (Id. at 7–8.)
In his Objection, LaPan concedes that a petitioner may not obtain habeas relief
under the Fourth Amendment where the petitioner had a full and fair opportunity to litigate
the issue in state court. (Doc. 18 at 4.) LaPan further concedes that he had a full and fair
opportunity to litigate his Fourth Amendment claim in state court. (Id.) As such, after
2 The R&R also notes that LaPan’s due process claim is not cognizable under the Fifth
Amendment because he alleges Pima County, a local government, committed the
misconduct not the federal government. (Doc. 17 at 6–7.)
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reviewing the R&R’s Fourth Amendment analysis for clear error, the Court adopts this
section.
LaPan’s primary objection to the R&R is that it fails to review his due process claim
on the merits.3 (Id.) LaPan concedes that he failed to raise this claim in state court. (Id.)
Nevertheless, LaPan asserts that the claim is not procedurally defaulted because his Fourth
Amendment claim raised on appeal “implicitly and necessarily” included a due process
claim under the Fifth and Fourteenth Amendments. (Id. at 3–4.) LaPan reasons that a due
process claim is “co-extensive” with a claim under Franks v. Delaware, and therefore the
trial court implicitly determined on the merits that no Fifth or Fourteenth Amendment
violation occurred. (Id.)
LaPan cites no caselaw, and the Court has found none, to support his theory that a
due process claim is implicit in a Franks claim. Further, a federal claim that has not been
clearly presented to a state court fails to satisfy the habeas “fair presentation” standard. See
Castillo v. McFadden, 399 F.3d 993, 1000 (9th Cir. 2005) (mandating a state prisoner to
alert the state court to the presence of a federal claim “within the four corners” of the
petition (citing Baldwin v. Reese, 541 U.S. 27, 32 (2004))). Therefore, even if Petitioner
had a plausible due process claim, it has not been “fairly presented” and is now
procedurally defaulted. See Coleman, 501 U.S. at 735 n.1. As such, Petitioner’s objection
is overruled.
II. Conclusion
The Court has reviewed the filings in this case, including LaPan’s § 2254 Petition
for Writ of Habeas Corpus (Doc. 1), Respondent’s Response (Doc. 15),4 the R&R (Doc.
3 LaPan also asserts a blanket objection claiming that, due to the length of the R&R and
the page limit for the objections, “it is impossible as a practical matter for Fuqua [sic] to
address all specific objections,” and he “expressly reserves his right to object to all aspects
of the [R&R].” (Doc. 18 at 2 n.1.) Given the relatively short eight-page R&R, LaPan’s
four-page Objection—well below the ten-page limit—and the incorrect Petitioner’s name,
the Court infers this footnote was erroneously drafted. Nevertheless, LaPan may not assert
a blanket objection to the R&R or reserve objections. United States v. Reyna-Tapia, 328
F.3d 1114, 1121 (9th Cir. 2003) (en banc) (the Court reviews de novo those portions of the
R&R to which specific objection is made); Fed. R. Civ. P. 72(b)(2) (requiring objections
be “specific [and] written”).
4 Petitioner did not file a reply.
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17), LaPan’s Objection (Doc. 18), and Respondents’ Response (Doc. 19). Upon a de novo
review of the objected to portions of the R&R, and clear error review of the unopposed
portions, the Court agrees with the Magistrate Judge’s findings and adopts the R&R.
Accordingly,
IT IS ORDERED that the Report and Recommendation is ADOPTED. (Doc. 17.)
IT IS FURTHER ORDERED that Petitioner James R. LaPan’s Petition for Writ
of Habeas Corpus under 28 U.S.C. § 2254 is DENIED. (Doc. 1.)
IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment
accordingly and close this case.
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 5th day of November, 2025.
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