United States District Court, D. Arizona
Honorable Roslyn O. Silver Senior United States District Judge
In January 2013, Petitioner Michael Christopher Jensen filed a petition for writ of habeas corpus. (Doc. 1). Jensen filed an amended petition the following month and, after numerous extensions, Respondents filed their answer in August 2013. That answer argued “Some of Petitioner’s Claims Are Procedurally Barred” and the claims which were not procedurally barred failed on their merits. (Doc. 23 at 15, 28). On September 23, 2015, Magistrate Judge David K. Duncan issued a Report and Recommendation (“R&R”) concluding all of Jensen’s claims are procedurally barred. (Doc. 76 at 8). After repeated extensions, Jensen filed objections to the R&R asking the Court to “reject the R&R in its entirety.” (Doc. 93 at 31). The Court will reject the R&R in large part but the petition will still be denied.
There is no dispute about the basic factual background of Jensen’s petition. In brief, Jensen was indicted on one count of sexual conduct with a minor, one count of public sexual indecency to a minor, two counts of molestation of a child, and six counts of sexual exploitation of a minor. (Doc. 20-1 at 4). Jensen proceeded to trial and at trial three of the sexual exploitation counts were dismissed but Jensen was convicted of the remaining seven counts. On direct appeal, Jensen chose to challenge only his convictions on the three sexual exploitation counts. Jensen argued there had been insufficient evidence to support those three counts. (Doc. 20-2 at 132). The Arizona Court of Appeals disagreed and affirmed the convictions. (Doc. 20-2 at 148). The Arizona Supreme Court denied review.
After his direct appeal failed, Jensen, through counsel, filed a petition for post-conviction relief. (Doc. 20-2 at 149). That petition argued Jensen’s trial counsel had provided ineffective assistance of counsel by failing to:
(1) meaningfully communicate with him; (2) properly investigate his case; (3) interview witnesses; (4) obtain documents; (5) subpoena witnesses until the trial was over; (6) file the appropriate motions that are minimally necessary to defend a case of the [sic] nature; (7) retain appropriate expert; and (8) present other meaningful information to the jury.
(Doc. 20-2 at 149). Jensen requested an evidentiary hearing to develop these theories. (Doc. 20-2 at 170). The court denied Jensen’s petition without holding an evidentiary hearing. In doing so, the court stated Jensen’s arguments were “interesting” but he had not supported them with evidence. (Doc. 21 at 108). The court concluded the petition failed “to include material issues of fact or law which would entitle [Jensen] to a hearing or relief, and . . . no purpose would be served by any further proceedings.” (Doc. 21 at 108). Jensen filed a petition for review with the Arizona Court of Appeals raising the same arguments. (Doc. 21 at 88). The appellate court summarily denied review. (Doc. 21 at 72). Jensen sought review by the Arizona Supreme Court but it, too, denied review. (Doc. 21 at 54, 52). Jensen then filed the present petition.
There has been substantial confusion regarding the claims Jensen is attempting to pursue in his federal petition. The Court previously interpreted the petition as raising three claims: one due process claim based on the state post-conviction court failing to grant Jensen an evidentiary hearing on his ineffective assistance of counsel (“IAC”) claims and two claims presenting different IAC theories. (Doc. 11 at 2). In answering the petition, Respondents presented a similar view of the claims presented. (Doc. 23 at 12-13). In particular, Respondents argued there was a claim regarding the denial of an evidentiary hearing and various IAC claims. The IAC claims “largely mirror[ed]” the IAC claims asserted in Jensen’s state post-conviction proceedings but there were a few IAC-related arguments Jensen asserted in his federal petition which he had not raised earlier. (Doc. 23 at 14). Respondents also argued the federal petition contained separate claims asserting some sort of denial of due process based on trial counsel’s failure to make certain arguments. (Doc. 23 at 19). According to Respondents, the evidentiary hearing claim, some of the IAC theories, and the due process claim were procedurally defaulted. (Doc. 23 at 14). Respondents conceded, however, that some of the IAC theories were properly exhausted and had to be reviewed on their merits. (Doc. 23 at 27-29). Despite Respondents’ concession that some aspects of the petition had been exhausted, the R&R concluded otherwise.
The R&R began by stating the refusal by the state court to hold an evidentiary hearing was a “procedural decision” that could not serve as the basis for federal habeas relief. (Doc. 76 at 5). Then, the R&R concluded all of Jensen’s remaining claims were procedurally barred. Jensen filed objections to the R&R while Respondents did not.
I. Standard of Review
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). A district judge must review de novo the portions to which an objection is made but a judge need not review the portions to which no objection is made. See Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (“[D]e novo review of factual and legal issues is required if objections are made, but not otherwise.”) (quotation marks and citation omitted).
II. Procedural Status of Claims Before reaching the merits of any of Jensen’s claims, the Court must first determine the procedural status of each claim. Jensen’s difficult-to-decipher allegations are not subject to obvious classification into discrete claims. The following characterization of his claims is based on Jensen’s filings, Respondents’ view ...