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Martinez v. State

United States District Court, D. Arizona

June 16, 2016

Rafael Martinez, Petitioner,
v.
State of Arizona, et al., Respondents.

          ORDER

          James A. Teilborg Senior United States District Judge

         Pending before the Court is Petitioner’s Amended Petition for Writ of Habeas Corpus (Doc. 7) (“Petition”). The Magistrate Judge to whom this case was assigned issued a Report and Recommendation (Doc. 26) (“R&R”), recommending that this Court deny the Petition. Petitioner has filed objections to the R&R. (Doc. 27). Respondent has filed a Response to Petitioner’s objections to the R&R, requesting this Court to overrule Petitioner’s objections and adopt the R&R. (Doc. 31).

         I. Review

         A. Review of R&R

         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.”). Thus, the Court will review the portions of the R&R to which Petitioner objected de novo.

         B. Review of State Court Decisions

         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”[1] 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). Additionally, “[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).

         II. Factual Background

         At pages 1-4, the R&R recounts the factual and procedural background of this case. Other than in the context of specific legal arguments discussed below, neither party objects generally to this recounting; accordingly, the Court accepts and adopts it, with the exception of the error in the R&R as to the date on which the Arizona Court of Appeals affirmed Petitioner’s convictions and sentences on Petitioner’s direct appeal. (See R&R at 3). The R&R incorrectly states April 26, 2010. (Id.) The Court notes that the Arizona Court of Appeals affirmed Petitioner’s convictions and sentences on August 26, 2010. (Doc. 19-2, Ex. P, at 148).

         III. Petition

         The Petition in this case raises 12 claims (Doc. 7). The Court will address each claim in turn, and will follow the numbering system used by the R&R.

         Claim 1

         In his first claim, Petitioner argues that “the trial court abused its discretion by allowing [the] state to present evidence of Petitioner and co-defendant [communicating] while in court”, thereby violating his due process rights. (Doc. 7 at 6). The R&R concludes that because Petitioner has not “assert[ed] a federal claim, ” and, accordingly, has not exhausted state remedies, this first claim is procedurally defaulted. (Doc. 26 at 11, 31). Further, the R&R states that “Petitioner fails to establish that error, if any, had a ‘substantial and injurious effect or influence in determining the jury’s verdict.’” (Id. at 12) (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)). As a result, the R&R concludes that habeas relief is precluded as to this first claim because “Petitioner cannot demonstrate cause, let alone prejudice, for his default.” (Doc. 26 at 12).

         Though Petitioner asks the Court, in his objection, “to reconsider this claim not procedurally defaulted and consider this claim for what it is, ” this does not dissuade this Court from agreeing with the findings and conclusions in the R&R. (Doc. 27 at 3). The Court agrees with the R&R’s conclusion that Petitioner “did not fairly present a federal claim, ” to the state courts, nor demonstrate cause and prejudice to excuse his default. (Doc. 26 at 11-12). Further, the Court accepts and adopts the R&R’s merits finding that the admission of the evidence of Petitioner and his co-defendant communicating was not error. (Id. at 12). Accordingly, the Petitioner’s objections are overruled, the R&R is accepted and adopted on Claim 1, and relief is denied on this claim.

         Claim 2

         The Petitioner’s second claim encompasses five separate sub-claims of ineffective assistance of counsel. (Doc. 7 at 7). Petitioner contends that ineffective assistance of counsel has resulted in the violation of his Sixth and Fourteenth amendment rights. (Id.) Petitioner also alleges that, should these grounds be procedurally defaulted, this ineffective assistance of counsel should excuse the default. (Doc. 24 at 17-18).

         At pages 13-14, the R&R states the governing legal standard for evaluating ineffective assistance of counsel claims established by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Neither party objects to the R&R’s statement of the legal standard. Accordingly, the Court accepts and adopts it as the governing legal standard for evaluating the Petitioner’s ineffective assistance of counsel claims. Further, the Magistrate Judge considered each of the Petitioner’s ineffective assistance of counsel claims on the merits in the R&R. (Doc. 26 at 13). Accordingly, this Court will also examine the ineffective assistance of counsel claims on the merits.

         Failure to Examine Clothing for DNA Evidence

         In his first sub-claim, Petitioner argues that his trial counsel was ineffective for failing to examine his clothing for DNA evidence. (Doc. 7 at 7). The R&R concludes that Petitioner’s claim fails, as “Petitioner presents no evidence to establish this claim is true, ” nor has Petitioner set forth any “evidence to establish that DNA testing, if conclusive, would have been more or less likely to inculpate or exculpate the Petitioner.” (R&R at 14). Further, the R&R concludes that “Petitioner’s speculation regarding the potential results of further DNA testing is insufficient to establish [that Petitioner suffered] prejudice” as a result of his trial counsel’s deficient performance. (Id. at 14- 15). Accordingly, the R&R ascertains that Petitioner is not entitled to habeas relief on this claim. (Id.)

         In his objection, Petitioner argues that though “he cannot show which way the DNA test will lead, ” if the Court would “order a DNA test on the clothing . . . all can be put to rest.” (Doc. 27 at 3). Notwithstanding his objection, Petitioner still fails to support his claim, as he has not produced any evidence indicating his claim is true or that trial counsel’s failure to examine his clothing for DNA evidence “prejudiced [his] defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Further, the Court accepts and adopts the R&R’s findings on the merits as to this sub-claim. As a result, this objection is overruled. Accordingly, the R&R is accepted as set forth above, and relief is denied on this claim.

         Failure to Object to Reference of a Prior Trial

         In his second sub-claim, Petitioner argues that his trial counsel failed to “provide [him] with the presumption of innocence when [a] witness testified Petitioner had [a] previous trial” and counsel thereafter did not request a mistrial. (Doc. 7 at 7). The R&R concludes that “Petitioner cannot demonstrate any due process violation as a result of counsel’s failure to request a mistrial, which would almost certainly have been denied based upon a sole reference to a prior trial.” (Doc. 26 at 16). Accordingly, Petitioner is not entitled to habeas relief on this claim, as “Petitioner’s claim fails because he cannot establish there was prejudice.” (Id. at 15-16).

         Petitioner objects and argues that the “reference of . . . a previous trial can [a]ffect the integrity of a trial.” (Doc. 27 at 4). However, Petitioner fails to support this speculative claim with evidence. Accordingly, for the reasons stated in the R&R (at 15- 16), this objection is overruled. The R&R is accepted and adopted as to this second sub-claim, and habeas relief is denied on this claim.

         Improper Comments ...


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