United States District Court, D. Arizona
C. BURY UNITED STATES DISTRICT JUDGE.
matter was referred to the United States Magistrate Judge
pursuant to 28 U.S.C. §636(b)(1)(B) and the local rules
of practice of this Court for a Report and Recommendation
(R&R) on the Petition for Writ of Habeas Corpus (Doc. 1).
Before the Court is the Magistrate Judge’s Report and
Recommendation (Doc. 36). The Magistrate Judge recommends to
the Court that relief may be granted as to one claim with
denial of the remaining claims. The Petitioner filed
Objections (Doc. 37) and the Respondents filed a Reply (Doc.
objection is made to the findings and recommendation of a
magistrate judge, the district court must conduct a de novo
review. United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003).
generally objects to all of the legal and evidentiary
conclusions contained in the Report and Recommendation:
(1)finding preclusion as to grounds 9-13, 15-18, 19-22 (Doc.
37 at 1, 7, 10, 11, 13); (2) finding procedural default (Doc.
37 at 2); (3) failure to conduct an evidentiary hearing (Doc.
37 at 3); and, (4) finding claim 7 did not have a reasonable
likelihood of success (Doc. 37 at 6).
Court finds that the Report and Recommendation is thorough
and well-considered. The Respondents have no Objections to
the Report and Recommendation. Petitioner’s Objections
reiterate all of the original claims with no additional
specific examples of error.
Owens was convicted in the Superior Court of Pima County of
twenty-two felonies: illegally conducting an enterprise,
conspiracy to commit unlawful possession and/or
transportation of a dangerous drug for sale, six counts of
possession of a dangerous drug for sale, possession of a
dangerous drug, possession of a motor vehicle with an altered
serial number or identification number, possession of a
deadly weapon during the commission of a felony drug offense,
possession of drug paraphernalia, three counts of use of a
wire communication in a drug-related transaction, attempted
unlawful use of a means of transportation, first-degree
burglary, kidnapping, two counts of soliciting threats and
intimidation, solicitation to commit kidnapping, and
solicitation to commit first-degree murder. (Doc. 13, Ex. UU
(R&R at 1-2.)
R&R was resolved without a hearing and this Court agrees
that none was required. (R&R at 47.) The R&R properly
found that Claims 2, 3, 5, 6, 9-18, and 20 are procedurally
defaulted. (R&R at 14.) This Court agrees that: Claim 1
is barred from review; Claims 2, 3, 5, 6, 9-13, 15-18, and 20
are procedurally defaulted and Petitioner has not established
cause and prejudice or a fundamental miscarriage of justice
to overcome the defaults; Claims 6, 11, 20, and the in
effective assistance of counsel (IAC) portions of Claims 9,
12, 13, and 15-18 fail on the merits; Claims 4, 7, and 8 are
properly exhausted but lack merit; and, Claims 19, 21 and 22
are not legally cognizable, in part, and lack merit, in part.
The Court will adopt the R&R and will deny Claims 1-13
Court will also adopt the recommendation that Claim 14 is
procedurally defaulted, but that Petitioner has established
cause and prejudice to overcome the default. The Court finds
Petitioner is entitled to relief on Claim 14. This Court will
grant the writ as to this claim, which results in overturning
the conviction and sentence on Count 7 of the
Indictment, as follows:
The Arizona Court of Appeals holds that when a defendant is
sentenced twice for the same offense, one of the sentences
must be vacated even if they were imposed concurrently and
did not increase the length of imprisonment. See State v.
Brown, 177 P.3d 878, 882-83, 217 Ariz. 617, 621-22 (Ct.
In finding that the underlying claims of trial and appellate
IAC are meritorious, the Court necessarily finds that PCR
counsel was deficient in failing to raise these substantial
claims. See Detrich v. Ryan, 740 F.3d 1237, 1245-46
(9th Cir. 2013). Therefore, there is cau se to excuse the
default of ...