United States District Court, D. Arizona
ROSEMARY MRQUEZ, District Judge.
Pending before the Court is a Report and Recommendation (Doc. 22) issued by Magistrate Judge Leslie A. Bowman. In the Report and Recommendation, Judge Bowman recommends denying Petitioner Steven Bonin's Petition for Writ of Habeas Corpus (Doc. 1) filed pursuant to 28 U.S.C. § 2254. No objections were filed.
I. Standard of Review
A district judge must "make a de novo determination of those portions" of a magistrate judge's "report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. §636(b)(1)(C); see also Rule 8(b) of the Rules Governing 2254 Cases in the United States District Courts. The advisory committee notes to Rule 72(b) of the Federal Rules of Civil Procedure state that, "[w]hen no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation" of a magistrate judge. See also Prior v. Ryan, 2012 WL 1344286, *1 (D. Ariz. Apr. 8, 2012) (reviewing for clear error unobjected-to portions of Report and Recommendation on § 2254 petition); Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999) ("If no objection or only partial objection is made, the district judge reviews those unobjected portions for clear error.").
A. Judge Bowman's Report and Recommendation
In his Petition, Mr. Bonin raises seven claims. Judge Bowman found that four of these claims had been properly exhausted but nonetheless should be denied on the merits. This Court finds no error in Judge Bowman's thorough and carefully reasoned discussion of these four claims.
Judge Bowman found that the remaining three claims were incurably procedurally defaulted. Each of these claims involves accusations of ineffective assistance of counsel. Specifically, the remaining claims allege that Mr. Bonin's (1) appellate counsel was ineffective for failing to give him transcripts of voir dire; (2) appellate counsel was ineffective for failing to give him the case file within 30 days of the Arizona Court of Appeal's affirmance of his conviction; and (3) appellate and trial counsel were generally ineffective.
Judge Bowman recognized that a procedural default can be cured if a petitioner can "demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, " Boyd v. Thompson, 147 F.3d 1124, 1126 (9th Cir. 1998), but found that Mr. Bonin could not "demonstrate cause." Of particular notice to this Court, Judge Bowman addressed Mr. Bonin's argument that Martinez v. Ryan, 132 S.Ct. 1309 (2012), allowed him to demonstrate cause by showing that he did not have counsel during the post-conviction relief process-the first opportunity that he had to raise his ineffective assistance of counsel claim:
Bonin further agues his procedural default should be excused pursuant to Martinez v. Ryan . Martinez holds that procedural default of a claim of ineffective assistance of trial counsel could be excused if post-conviction relief counsel was ineffective. In this case, Bonin was never appointed post-conviction relief counsel in the first place. Martinez, therefore, does not apply to his case.
Report and Recommendation at 10.
B. Cause for Procedural Default
This Court disagrees with this portion of the Report and Recommendation to the extent that it concludes that Martinez is inapplicable if a prisoner was not appointed post-conviction counsel. The Supreme Court stated in Martinez that there are two circumstances in which "a prisoner may establish cause for a default of an ineffective-assistance claim[.] The first is where the state courts did not appoint counsel in the initial-review collateral proceeding for a claim of ineffective assistance at trial. The second is where appointed counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland v. Washington, 466 U.S. 668 (1984)[.]" Martinez, 132 S.Ct. at 1318 (emphasis added).
Mr. Bonin's case presents a factual scenario that was not discussed by the Supreme Court in its Martinez opinion. Mr. Bonin was not appointed post-conviction counsel because his Notice of Post-Conviction Relief was dismissed as untimely before the stage of proceedings at which counsel is appointed. It is unclear whether the rule of Martinez should apply to these facts. Mr. Bonin alleges he untimely filed his Notice because his trial and appellate counsel advised him to not pursue post-conviction relief and did not provide him with his case file so that Mr. Bonin could make his own independent determination. Mr. Bonin's counsel's advice to not pursue post-conviction relief is not tied to counsel's representation in the direct appeal process and could be viewed as essentially post-conviction relief legal advice that is arguably ineffective. It could also be said that it does not matter under Martinez that Arizona would have appointed him counsel if Mr. Bonin had filed a timely Notice because his failure to do so was the fault of previous ineffective counsel. However, Mr. ...