United States District Court, D. Arizona
A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE
before this Court is the Report and Recommendation (R&R)
of the Magistrate Judge recommending that the Court find that
Petitioner's Eighth Amendment claim is not procedurally
barred from federal habeas review. (Doc. 26 at 16).
Alternatively, the R&R recommends that if this Court
finds Petitioner's Eighth Amendment claim to be
procedurally barred, the Court refer this case back to the
Magistrate Judge for a further R&R on whether Petitioner
can establish a basis to excuse the procedural bar.
preliminary matter, this Court asked the parties to brief
whether this Court's decision in another case affected
the outcome of this case. (Doc. 28). Both parties appear to
agree that they do not wish to have the Court apply the
reasoning in that case to this case. In other words, both
parties appear to agree that this Court should apply only
Miller (and not Montgomery) to decide the
merits of Petitioner's case (although it appears the
parties have significantly different interpretations of what
Miller held). Because both parties agree that this
Court should not apply the other case, the Court will not do
Review of R&R
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.”). Because
Respondent objected to the R&R, the Court will review the
portions of the R&R to which there was an objection de
Procedural History and Recommendation Regarding
R&R recounted the procedural history of this case in
state court, and neither party objected to this recounting.
(Doc. 26 at 2-4). Accordingly, the Court accepts it. As is
relevant to the objections, after the Supreme Court decided
Miller v. Alabama, 132 S.Ct. 2455 (2012), Petitioner
filed a petition for post-conviction relief
(“PCR”) on September 13, 2012. (Doc. 26 at 3).
The trial court denied this PCR on October 8, 2012. (Doc. 2-2
at 7-8). On October 23, 2012, Petitioner
“amended” the September 13, 2012 notice. The
trial court dismissed the first notice and the
“amended” notice as untimely, and concluded that
Petitioner had not shown that Miller was a
significant change in the law. (Doc. 26 at 3). Petitioner did
not appeal the trial court's dismissal of his first PCR
or the trial court's dismissal of his second/amended PCR
to the Arizona Court of Appeals. (Id.).
Petitioner's September 13, 2012 filing as one PCR, and
Petitioner's “amended” notice as a second
PCR, Petitioner filed a third PCR on June 23, 2013 requesting
relief under Miller. (Id.). As the R&R
The trial court found that Petitioner had not shown that
Miller was a significant change in the law that
applied to his case and dismissed the third notice.
Petitioner sought review of that dismissal in the Arizona
Court of Appeals. The appellate court granted review, but
denied relief. The court found that Petitioner's claim
was procedurally barred because he had raised it in a prior
post-conviction proceeding. The appellate court denied
Petitioner's subsequent motion for reconsideration.
Petitioner sought review in the Arizona Supreme Court, and
the court denied review on January 5, 2016.
On January 25, 2016, in Montgomery v. Louisiana, __
U.S., 136 S.Ct. 718 (2016), the United States Supreme Court
held that Miller applies retroactively to cases on
collateral review. [footnote omitted] On October 3, 2016, the
United States Supreme Court denied Petitioner's petition
for writ of certiorari with respect to the Arizona Court of
Appeals' decision affirming the trial court's
dismissal of Petitioner's third notice for postconviction
26 at 3-4) (citations omitted).
case, it is undisputed that Petitioner did not exhaust his
first and second PCR petitions in state court. Petitioner did
appeal his third PCR petition through the state courts.
However, to “exhaust” his state remedies,
Petitioner must have “fairly presented” his
Eighth Amendment claim to the state's highest court in a
procedurally correct manner. (Doc. 26 at 7). The R&R
concludes that the third PCR keeps Petitioner's Eighth
Amendment claim from being procedurally defaulted because the
state procedural rule the Arizona Court of Appeals relied on
to deny relief was not independent of federal law. Respondent
objects and argues that the Eighth Amendment claim was not
fairly presented to the ...