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Flowers v. O'Neil

United States District Court, D. Arizona

December 11, 2017

Eulandas J Flowers, Petitioner,
v.
James O'Neil, Respondent.

          ORDER

          JAMES A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE

         Pending 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. (Id.).

         I. Supplemental Briefing

         As a 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 so.

         II. Review of R&R

         This 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 novo.

         III. Procedural History and Recommendation Regarding Exhaustion

         The 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.).

         Counting 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 recounts:

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 relief.

         (Doc. 26 at 3-4) (citations omitted).

         In this 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 ...


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