United States District Court, D. Arizona
STEPHEN M. McNAMEE, Senior District Judge.
Pending before the Court is Petitioner's First Amended Petition for Habeas Corpus. (Doc. 15.) The matter was referred to Magistrate Judge Jacqueline M. Rateau for a Report and Recommendation, who filed a Report and Recommendation with this Court recommending that Petitioner's First Amended Petition be denied on its merits. (Doc. 120.) Petitioner then filed his objections to the Report and Recommendation, Respondents responded, and Petitioner submitted a reply. (Docs. 130-132.) After considering the Report and Recommendation, the arguments raised in Petitioner's Objections and his reply, the Court will deny Petitioner's First Amended Petition for Habeas Corpus.
STANDARD OF REVIEW
When reviewing a Magistrate Judge's Report and Recommendation, this Court "shall make a de novo determination of those portions of the report... to which objection is made, " and "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); see also Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991) (citing Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983)).
Magistrate Judge Rateau filed a thorough fifty page Report and Recommendation ("R&R") recommending denial of habeas relief for Petitioner's First Amended Petition for Habeas Corpus. (Doc. 120.) Petitioner filed eleven objections to the R&R. (Doc. 130.) Respondents responded to each objection and Petitioner replied in support. (Docs. 131, 132.)
First, Petitioner raises several arguments regarding the R&R's statement of the standard of review under the AEDPA, the standard of review regarding application of Arizona's procedural default rules, the standard of review regarding cause and prejudice, and the standard of review regarding fundamental miscarriage of justice. The Court has reviewed the R&R's statements of the standards of review objected to by Petitioner. The Court finds that the R&R's statements of the standards of review is correct and overrules Petitioner's objection number one.
Moreover, to the extent that Petitioner's objection is but a general objection, the Court is relieved of any obligation to review a general objection to the R & R. See Thomas v. Arn, 474 U.S. 140, 149 (1985) (stating that no review at all is required for "any issue that is not the subject of an objection."); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (same).
Petitioner's second objection to the R&R's Blakely v. Washington, 542 U.S. 296 (2004), analysis stating that "retroactivity is irrelevant, " is overruled because, as the R&R correctly determines, Blakely was decided over one year after Petitioner's conviction had become final, and was determined under Teague v. Lane, 489 U.S. 288 (1989), not to apply retroactively.
Petitioner's third objection that none of his ineffective assistance of counsel ("IAC") claims were waived or defaulted is overruled because the R&R properly found that Petitioner failed to exhaust all of his IAC claims in state court by failing to present them to the Arizona Court of Appeals.
Petitioner's fourth objection that proper exhaustion is shown on the record and therefore the R&R mistakenly conducted a cause and prejudice analysis and a fundamental miscarriage of justice analysis is overruled. The R&R properly found that Petitioner did not exhaust all of his claims in state court and properly considered cause and prejudice and fundamental miscarriage of justice arguments.
Petitioner's fifth objection regarding the R&R's fundamental miscarriage of justice analysis is overruled. Under Schlup v. Delo, 513 U.S. 298, 321 (1995), an exception to procedural default is limited to habeas petitioners who can establish that new evidence shows that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Here, Petitioner merely relitigates the evidence presented at trial. The R&R properly found that such arguments do not establish that a fundamental miscarriage of justice occurred.
Petitioner's sixth objection argues that the R&R improperly found that the requirements of Alcala v. Woodford, 334 F.3d 862 (9th Cir. 2003) (applying pre-AEDPA standards) were not met regarding his IAC claim that counsel failed to call beneficial witnesses at trial. This objection is overruled because the testimony identified by Petitioner of the two witnesses not called at trial, Michael Perrin and Steven Anchondo, would have supported the prosecution's claim that Petitioner was the shooter by providing identification evidence, physical evidence of the handgun, and a motive. The R&R properly recommended that the state court's ruling was not an unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984). (See R&R, Doc. 120 at 32-34.)
Petitioner's seventh objection argues that the R&R improperly analyzed Missouri v. Frye, 132 S.Ct. 1399 (2012), alleging that his counsel improperly failed to advise him of a plea offer. In Frye, the Court undertook the question of whether defense counsel had a duty to communicate the terms of a formal plea offer to his client on terms and conditions that may result in a lesser sentence, a conviction on lesser charges, or both. Id . The Court held that defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused. ...