United States District Court, D. Arizona
Honorable Rosemary Márquez United States District
August 2, 2016, Magistrate Judge Bruce G. Macdonald issued a
Report and Recommendation (Doc. 35) recommending that this
Court deny Petitioner's Petition Under 28 U.S.C. §
2254 for a Writ of Habeas Corpus. No objections to the Report
and Recommendation were filed.
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). The advisory committee's 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. Fed.R.Civ.P. 72(b) advisory
committee's note to 1983 addition. See also Johnson
v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999)
(“If no objection or only partial objection is made,
the district court judge reviews those unobjected portions
for clear error.”); Prior v. Ryan, CV
10-225-TUC-RCC, 2012 WL 1344286, at *1 (D. Ariz. Apr. 18,
2012) (reviewing for clear error unobjected-to portions of
Report and Recommendation).
Court has reviewed Judge Macdonald's Report and
Recommendation, the parties' briefs, and the record. The
Court has not found any clear error in Judge Macdonald's
respect to the ineffective assistance of trial counsel claims
found by Judge Macdonald to be procedurally defaulted, the
Court notes that Petitioner has not argued that ineffective
assistance of post-conviction review counsel establishes
cause under Martinez v. Ryan, 132 S.Ct. 1309 (2012),
for the procedural default of any claims of ineffective
assistance of trial counsel. Even if Petitioner had raised a
Martinez issue, he has not shown that the underlying
procedurally defaulted ineffective assistance of trial
counsel claims are substantial. See Id. at 1318.
Macdonald found that Petitioner relied only on state law in
presenting to the state court his claim regarding the denial
of a continuance. (See Doc. 35 at 40.) In his
opening brief on direct appeal to the Arizona Court of
Appeals, Petitioner cited only to state cases regarding when
denial of a continuance violates constitutional rights. (Doc.
23-2, Exh. O at ¶ 16.) However, Arizona v.
Hein, 674 P.2d 1358, 1367 (Ariz. 1983), cited by
Petitioner in the opening brief, discusses when a
defendant's federal constitutional rights are violated by
the denial of a request for a continuance. Additionally,
Petitioner argued in his opening brief that he had a right
under the Fifth Amendment to the United States Constitution
to challenge grand jury proceedings, and connected this
argument to his argument regarding the denial of a
continuance. (Id. at ¶ 17.) Respondents
conceded in their Answer that Petitioner's opening brief
on direct appeal in state court raised the argument regarding
the denial of a continuance as a federal claim. (Doc. 23 at
11.) However, even if Petitioner's opening brief on
direct appeal could be interpreted as fairly presenting a
claim that the denial of a continuance violated
Petitioner's federal constitutional rights, the opening
brief argued only that the denial of a continuance prevented
Petitioner's trial counsel from reviewing the grand jury
transcript for error. As explained in Judge Macdonald's
Report and Recommendation, any constitutional errors in
Petitioner's grand jury proceedings are harmless because
Petitioner was ultimately convicted of the offenses charged.
See United States v. Mechanik, 475 U.S. 66, 70
(1986); Williams v. Stewart, 441 F.3d 1030, 1042
(9th Cir. 2006). Petitioner did not argue in state court that
the denial of a continuance prevented defense counsel from
adequately preparing for trial. To the extent that Petitioner
is now arguing that the denial of a continuance prevented
adequate trial preparation, that claim is unexhausted and
procedurally defaulted. See Ariz. R. Crim. P.
32.2(a); Coleman v. Thompson, 501 U.S. 722, 735 n.1
(1991). Petitioner has not shown cause or prejudice to excuse
the procedural default. See Murray v. Carrier, 477
U.S. 478, 494 (1986).
Macdonald found Petitioner's claim of prosecutorial
misconduct to be unexhausted and procedurally defaulted. The
Court notes that, in Petitioner's opening brief on direct
appeal to the Arizona Court of Appeals, Petitioner argued
that the state violated his constitutional rights by
misrepresenting to the grand jury the reasons for his failure
to appear. (Doc. 23-2, Exh. O at ¶ 19.) The Court agrees
that this argument did not fairly present a federal claim of
prosecutorial misconduct. See Baldwin v. Reese, 541
U.S. 27, 32-33 (2004) (state prisoner must alert state court
to alleged federal nature of claim); Shumway v.
Payne, 223 F.3d 982, 987-88 (9th Cir. 2000) (general
appeal to broad constitutional guarantee does not satisfy
fair presentation requirement). However, even if the argument
could be interpreted as fairly presenting a federal claim of
prosecutorial misconduct, the claim relates only to alleged
constitutional errors in the grand jury proceedings, and any
constitutional errors in those proceedings are harmless due
to Petitioner's convictions of the offenses charged.
See Mechanik, 475 U.S. at 70; Williams, 441
F.3d at 1042.
IT IS ORDERED that the Report and Recommendation (Doc. 35) is
accepted and adopted.
FURTHER ORDERED that the Petition Under 28 U.S.C. § 2254
for a Writ of Habeas Corpus (Doc. 1) is denied, and this case
is dismissed with prejudice. The Clerk of Court is directed
to enter judgment accordingly and close this case.
FURTHER ORDERED that, pursuant to Rule 11 of the Rules
Governing Section 2254 Cases, the Court declines to issue a
certificate of appealability, because reasonable jurists
would not find the Court's procedural ...