Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Borrud v. Ryan

United States District Court, D. Arizona

March 21, 2017

Jan Eldar Borrud, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          ORDER

          Honorable Steven P. Logan United States District Judge.

         Before the Court is Petitioner Jan Eldar Borrud's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). The Honorable Judge James F. Metcalf, United States Magistrate Judge, has issued a Report and Recommendation (“R&R”) (Doc. 41), recommending that the petition be denied. Petitioner has objected to the R&R (Doc. 53) and moved to stay this action and hold it in abeyance (Doc. 50). For the reasons that follow, the Court accepts and adopts the R&R, and denies the petition and motions.

         I. Background

         On May 10, 2007, Petitioner was indicted on four counts of sexual conduct with a minor, four counts of child molestation, and two counts of sexual abuse of a minor in the Coconino County Superior Court, Case No. CR2007-0429. (Doc. 14-1, Exh. C.) Petitioner was found guilty by a jury on all charges. (Doc. 14-5, Exh. UU.) On July 23, 2008, Petitioner was sentenced to a twenty-year term of imprisonment for each count of sexual conduct with a minor; a seventeen-year term for each count of child molestation; and a five-year term for each count of sexual abuse. The sentencing court set forth a scheme under which certain sentences would run concurrent with others. (See Doc. 14-5, Exhs. ZZ, HHH.)

         Petitioner timely filed a notice of appeal, and appellate counsel filed an opening brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that he had searched the record on appeal and found no question of law that was not frivolous (Doc. 14-5, Exh. CCC). Petitioner filed a pro per supplemental brief. (Doc. 14-1, Exh. DDD.) The Arizona Court of Appeals directed supplemental briefing on whether the convictions for child molestation and sexual conduct with a minor violated double jeopardy (Doc. 31-1, Exh. ZZZZ), and Petitioner's counsel filed a supplemental brief (Doc. 14-5, Exh. EEE). In a memorandum decision, the appellate court vacated the convictions and sentences imposed for the four convictions for molestation of a child and affirmed Petitioner's remaining convictions and sentences. (Doc. 14-5, Exh. HHH); State v. Borrud, 2009 WL 1883931, at *1 (Ariz.Ct.App. Jun. 30, 2009). Following the denial of a motion for reconsideration, Petitioner sought review by the Arizona Supreme Court, which was summarily denied on April 27, 2010. (Doc. 14-5, Exh. KKK.)

         Petitioner timely initiated post-conviction relief proceedings pursuant to Rule 32 of the Arizona Rules of Criminal Procedure. Appointed counsel filed a notice with the trial court stating that he was unable to find any colorable issue or claim to raise in the proceeding. Petitioner filed a pro per petition (Doc. 14-5, Exh. NNN) and motion for leave to file a lodged 176-page petition (Doc. 14-5, Exh. OOO). The state moved to strike the 176-page petition, arguing that it unnecessarily exceeded the permissible page limits. (Doc. 14-5, Exh. QQQ.) The request was denied and the lodged petition was stricken. (Doc. 14-5, Exhs. XXX, YYY.) Petitioner filed a pro per Rule 32 petition, which was summarily denied. (Doc. 14-5, Exhs. ZZZ, BBBB.) Following the denial of a motion for reconsideration, Petitioner sought review by the Arizona Court of Appeals, the Arizona Supreme Court, and United States Supreme Court; all summarily denied review.

         During the pendency of his first Rule 32 proceeding, Petitioner filed a Petition for Special Action with the Arizona Court of Appeals. The petition was summarily denied. The appellate court denied a motion for reconsideration and transferred his petition for review to the Arizona Supreme Court. That petition was summarily denied. (Doc. 38, Supp. Exhs. A-E.)

         On March 30, 2015, Petitioner filed a timely federal habeas petition in this Court, raising nine grounds for relief. (Docs. 1.) Respondents filed a limited answer (Doc. 14), and submitted supplemental discovery (Docs. 21, 25, 31, 38). Petitioner filed a 120 page Reply (Doc. 35), and a 25 page motion for evidentiary hearing (Doc. 27).

         Following review, the Magistrate Judge issued a 46 page Report and Recommendation (Doc. 41) in which he denied the motion for evidentiary hearing, and recommended that the petition be dismissed with prejudice. The Magistrate Judge found that Petitioner had failed to fairly present and exhaust his claims in Grounds One through Five and Seven through Nine, and the claims were procedurally defaulted. He further found that Petitioner had failed to show cause and prejudice or actual innocence to excuse the procedural default of those claims. He also found that Ground Six failed on the merits, in that Petitioner had failed to show that prejudice resulted from the multiplicitous indictment.

         II. 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). When a party files a timely objection to an R&R, the district judge reviews de novo those portions of the R&R that have been “properly objected to.” Fed.R.Civ.P. 72(b). A proper objection requires specific written objections to the findings and recommendations in the R&R. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); 28 U.S.C. § 636(b)(1). It follows that the Court need not conduct any review of portions to which no specific objection has been made. See Reyna-Tapia, 328 F.3d at 1121; see also Thomas v. Arn, 474 U.S. 140, 149 (1985) (discussing the inherent purpose of limited review is judicial economy). Further, a petitioner is not entitled as of right to de novo review of evidence or arguments which are raised for the first time in an objection to the R&R, and the Court's decision to consider them is discretionary. United States v. Howell, 231 F.3d 615, 621-622 (9th Cir. 2000).

         III. Discussion

         A. Objection to the R&R[1]

         “Petitioner objects to each of the Magistrate Judge's findings and recommendations which would, if accepted by the District Court, lead to dismissal of the Petition or denial of the Writ of Habeas Corpus.” (Doc. 53 at 4.) In his 98 page objection, of which 73 pages is comprised of briefing, Petitioner specifies six categories of objections: (1) “Objection to ‘Factual Background' (Doc. 41, at 1-2)”; (2) “Objection to ‘Proceedings at Trial' (Doc. 41, at 3-5)”; (3) “Objection to ‘Challenges to Indictment' (Doc. 41, at 3)”; (4) “Objection to ‘Proceedings on Direct Appeal' (Doc. 41, at 5-6)”; (5) “Objection to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.