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Weeks v. Ryan

United States District Court, D. Arizona

October 16, 2017

Michael Ray Weeks, Petitioner,
Charles L. Ryan, et al., Respondents.


          David C. Bury Judge.

         This matter was referred to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b) and the local rules of practice of this Court (Doc. 2) for a Report and Recommendation (R&R) on the Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §2254. Before the Court is the Magistrate Judge's Report and Recommendation (Doc. 20), which recommends that the Amended Petition be denied and dismissed. Petitioner filed Objections to the Report and Recommendation (Doc. 24)and a Court-Ordered Response to Objections (Doc. 34) was filed. The Court now rules.


         When 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).


         -Factual/Procedural Background

         Petitioner first objected to the “Factual and Procedural Background” contained in the R&R. (Doc. 24 at 2.)Petitioner contends that the facts found by the Arizona Court of Appeals are not entitled to a presumption of correctness pursuant to 28 U.S.C. § 2254(e)(1) because that court viewed the evidence in the light most favorable to sustaining the jury's verdicts. (Obj. at 2-3.) But the Ninth Circuit has held that an “initial statement of facts [that] is drawn from the state appellate court's decision … is afforded a presumption of correctness that may be rebutted only by clear and convincing evidence.” Moses v. Payne, 555 F.3d 742, 746 n.1 (9th Cir. 2009). Petitioner does not assert that any of the facts stated by the Magistrate Judge are incorrect or specifically rebut any facts. (Obj. at 2 (stating that the facts presented in the R&R “merely recount [Petitioner's] charges, trial(s), and convictions”).) In Nasby v. McDaniel, 853 F.3d 1049, 1052 (9th Cir. 2017), the court applied the rule “[i]n Jones v. Wood, [114 F.3d 1002 (9th Cir. 1997), ] … that a habeas court must either obtain and review the relevant portions of the record on which the state court based its judgment, or conduct an evidentiary hearing of its own.” In sum, the Magistrate Judge properly adopted the state court's statement of the facts describing Petitioner's crimes. The Magistrate Judge here had the relevant trial and post-conviction transcripts and record, and she stated that she conducted an “independent review of the record” before recommending that the petition be dismissed. (R&R at 1.) In sum, this Objection is overruled.

         -Claims 1 & 2: Procedural Default

         Petitioner objects to the R&R's conclusions and recommendations on Claims 1 and 2 based on exhaustion and procedural default. The Magistrate Judge found that Petitioner failed to exhaust Claims 1 and 2, which alleged that Petitioner was not competent to stand trial and that the trial court erred by failing to sua sponte order a competency evaluation. (R&R at 6-8.) As the Magistrate Judge explained, although the post-conviction court rejected the claims on their merits, the Arizona Court of Appeals found the claims precluded under Arizona Rule of Criminal Procedure 32.2(a)(3) because they could have been raised on direct appeal. (Id. at 6.) The Magistrate Judge, therefore, found the claims unexhausted and defaulted because the court of appeals “was the last state court to render a judgment on these claims and found them procedurally defaulted.” (Id. at 7.) See Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). Petitioner agrees that he failed to present these claims on direct appeal as Arizona law requires, but claims exhaustion occurred by presenting them to the Arizona Court of Appeals on review from the denial of post-conviction relief, despite the fact that the appellate court found the claims precluded under Rule 32.2(a)(3). (Obj. at 4.) (“There is no dispute that [Petitioner] brought the claims to the Arizona Court of Appeals, the only dispute seems to be whether he was required to do so on direct appeal or be forever barred from relief [and] review by this Court.”). Petitioner's objection to the Magistrate Judge's conclusion that he brought these claims “in an ‘improper forum' or … in an ‘improper vehicle'” is rejected. (Obj. at 4.) Petitioner's failure to raise Claims 1 and 2 on direct appeal resulted in their preclusion in post-conviction proceedings; he is therefore left with no remedy in state court. See Ariz. R. Crim. P. 32.2(a)(3). Thus, the Magistrate Judge had no choice but to find the claims defaulted by Petitioner's failure to properly present them in state court. The Magistrate Judge properly relied on LaFlamme v. Hubbard, 225 F.3d 663 (9th Cir. 2000), to support her conclusion that a competency claim may be procedurally defaulted.[1](Obj. at 9.) Petitioner's ongoing objections based on waiver are misplaced. Here, the Magistrate Judge properly found that Petitioner's claims were procedurally defaulted because he failed to properly present them in the state courts. Contrary to Petitioner's arguments, the state procedural bar, Rule 32.2(a)(3), is adequate to bar review of this claim. Murray v. Schriro, 745 F.3d 984, 1016 (9th Cir. 2014) (“Arizona Rule of Criminal Procedure 32.2(a)(3) has been firmly established and consistently followed.”). Petitioner confuses the application of a procedural bar with waiver. Hence, this Objection is overruled.

         -Claim 5, Confrontation Clause

         Petitioner objects to the R&R's finding that Claim 5 was not exhausted. Petitioner asserted in Claim 5 that the trial court's admission of his out-of-court statements, in which he denied assaulting the victim, violated his Sixth Amendment Confrontation Clause rights. (Amended Petition, Claim 5: “The trial court admitted hearsay testimony over Petitioner's objections in violation of the Sixth Amendment Confrontation Clause.” (Doc. 2 at 60.)).

         The Magistrate' R&R states, as follows:

Thus, with respect to the Sixth Amendment Confrontation Clause claim asserted in Ground Five of Weeks's habeas petition, the Arizona Court of Appeals finding of waiver and abandonment in violation of Arizona Rule of Criminal Procedure 31.13(c)(1)(vi) is independent and adequate, and the claim is not subject to review. See Coleman v. Thompson, 501 U.S. 722, 728, (1991) (federal courts “will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.”).

         (Doc. 20 at 10-11.)The Magistrate Judge found the Sixth Amendment claim precluded. The Magistrate Judge properly found Petitioner's Sixth Amendment claim procedurally defaulted based on the state court's finding that the claim was waived under state law. ...

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