United States District Court, D. Arizona
JAMES A. TEILBORG, Senior District Judge.
Pending before the Court is Petitioner's Amended Petition for Writ of Habeas Corpus (Doc. 16). On March 5, 2015, the Magistrate Judge to whom this case was assigned issued a Report and Recommendation (R&R) recommending that the Amended Petition be denied. (Doc. 43).
A. LEGAL STANDARD
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). It is "clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) ( en banc ) (emphasis in original); Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003) ("Following Reyna-Tapia, this Court concludes that de novo review of factual and legal issues is required if objections are made, but not otherwise.'"); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 1027, 1032 (9th Cir. 2009) (the district court "must review de novo the portions of the [Magistrate Judge's] recommendations to which the parties object."). District courts are 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) (emphasis added); see also 28 U.S.C. § 636(b)(1) ("the court shall make a de novo determination of those portions of the [report and recommendation] to which objection is made.").
In this case, Petitioner filed objections to the R&R; accordingly, the Court will review the objected to recommendations de novo.
The Petition in this case was filed under 28 U.S.C. § 2254 because Petitioner is incarcerated based on a state conviction. With respect to any claims that Petitioner exhausted before the state courts, under 28 U.S.C. §§ 2254(d)(1) and (2) this Court must deny the Petition on those claims unless "a state court decision is contrary to, or involved an unreasonable application of, clearly established Federal law" or was based on an unreasonable determination of the facts. See Lockyer v. Andrade, 538 U.S. 63, 71 (2003). Further, this Court must presume the correctness of the state court's factual findings regarding a petitioner's claims. 28 U.S.C. § 2254(e)(1); Ortiz v. Stewart, 149 F.3d 923, 936 (9th Cir. 1998). Also, "[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(2).
1. Pro se interference claim
In his Objections, Petitioner argues that his "pro se interference claim" was exhausted before the state courts; or alternatively, if it was not, his failure to exhaust should be excused under Martinez v. Ryan, 132 S.Ct. 1309 (2012), as a result of his appellate counsel's ineffective assistance if that counsel failed to raise this claim on direct appeal.
In the R&R, the Magistrate Judge concludes that this claim was not exhausted in state court. Doc. 43 at 24. The R&R further concludes that this claim has been procedurally defaulted in state court at this time. Id. at 25-26. Finally the R&R concludes that Petitioner has not shown cause and prejudice to overcome this procedural default, nor a fundamental miscarriage of justice. Id. at 26.
In his objections, Petitioner argues that this claim was either directly exhausted, or sufficiently related to an exhausted claim that it should be deemed exhausted. Doc. 51 at 3-5. With regard to directly exhausting, Petitioner argues that he raised this claim in his Rule 32 Petition for Post-Conviction Relief before the state court, citing Exhibit II.
Exhibit II is Petitioner's Petition for Post-Conviction relief, which spans 144 pages, including exhibits (some of which appear to be duplicates). Doc 25-4 starting at page 32. While Petitioner is correct that some of his over 100 pages of exhibits perhaps support his pro se interference claim, this Court does not see where that claim was labeled as such specifically to the post-conviction relief court. Further, when Petitioner filed his Petition for Review of the denial of his Petition for Post-Conviction Relief with the Arizona Court of Appeals, he did not list a pro se interference claim as a claim raised in his Rule 32 Petition. See Doc. 25-6 at 1-3. Consistent with Petitioner's Petition for Post-Conviction Relief and his Petition for Review with the Arizona Court of Appeals, the Arizona Court of Appeals did not address a pro se interference claim. Doc. 25-6 at 47-52. On this record, this Court agrees with the R&R that Petitioner's pro se interference claim was not raised to the state courts directly. See Doc. 43 at 24.
Next Petitioner argues that under Lounsbury v. Thompson, 374 F.3d 785, 788 (9th 2004), the claims he raised in his Petition for Post-Conviction relief were sufficiently related to his pro se interference claim that this Court should deem them exhausted. Doc. 51 at 4. This Court agrees with the R&R that while some of the underlying facts are the same, this legal theory was never presented to the state courts, and is not exhausted. See Doc. 43 at 25.
Finally, Petitioner argues that if his pro se interference claim is not exhausted, his failure to exhaust should be excused under Martinez v. Ryan, 132 S.Ct. 1309 (2012). Specifically, Petitioner argues that his failure to exhaust this claim was due to the ineffective assistance of his appellate counsel in failing to raise it on direct appeal; and ineffective assistance of his post-conviction relief counsel for failing to raise the ineffective assistance of appellate counsel in the Rule 32 Petition for Post-Conviction Relief. Doc. 51 at 5-8.
At pages 17 and 18, the R&R discussed when a Martinez claim can excuse the procedural default of ineffective assistance of counsel claims in state court. However, the R&R failed to analyze any of Petitioner's defaulted claims under Martinez.
As this Court has previously stated, Martinez (although the opinion suggests otherwise) requires this Court to reach the merits of every claim that is defaulted when the Petitioner claims the default was based on ineffective assistance of counsel. Saenz v. Van Winkle, CV-13-77-PHX-JAT at 4 (D. Ariz. July 2, 2014); Martinez v. Ryan, 2012 WL 5936566, *2-3 (D. Ariz. Nov. 27, 2102) (holding that for this Court to consider the three steps required to excuse procedural default articulated in the Martinez Supreme Court decision, this Court must begin with a review of whether trial or appellate counsel was ineffective, rather than whether PCR counsel was ineffective). Thus, because the Court must consider Petitioner's effective assistance of appellate counsel claim by determining whether Petitioner's pro se interference claim was meritorious such that appellate counsel should have raised it, the Court will first turn to the merits of the pro se interference claim.
Petitioner's theory of his pro se interference claim is best summarized by McKaskle as follows:
[T]he pro se defendant is entitled to preserve actual control over the case he chooses to present to the jury. This is the core of the Faretta right. If standby counsel's participation over the defendant's objection effectively allows counsel to make or substantially interfere with any significant tactical decisions, or to control the questioning of witnesses, or to speak instead of the defendant on any matter of importance, the Faretta right is eroded.
McKaskle v. Wiggins, 465 U.S. 168, 178 (1984) (referencing Faretta v. California, 422 U.S. 806 (1975)).
Once a pro se defendant invites or agrees to any substantial participation by counsel, subsequent appearances by counsel must be presumed to be with the defendant's acquiescence, at least until the defendant expressly and unambiguously renews his request that he be allowed to go it alone. McKaskle, 465 U.S. at 183, 104 S.Ct. at 953-54; United States v. Lorick, 753 F.2d ...