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Stith v. State

United States District Court, D. Arizona

January 22, 2018

Toney Eugene Stith, Petitioner,
v.
State of Arizona, et al., Respondents.

          ORDER

          DAVID C. BURRY UNITED STATE DISTRICT JUDGE.

         This matter was referred to Magistrate Judge Leslie A. Bowman for a Report and Recommendation regarding disposition of this case. LRCiv. 72.1(a). On October 2, 2017, Magistrate Judge Bowman issued a R&R. She recommends that the Court deny the Petition for Writ of Habeas Corpus. After an independent review of the record, the Court accepts and adopts the Magistrate Judge's R&R as the findings of fact and conclusions of law of this Court and denies the Petition.

         Stith was convicted after a jury trial of felony murder and two counts each of attempted armed robbery, attempted aggravated robbery, and kidnapping. He was sentenced to life in prison with the possibility of release after twenty-five years on the murder charge. On direct appeal, his conviction was affirmed. He filed for post-conviction relief in state court, but it was denied on March 22, 2016. On July 16, 2016, he filed a late appeal and filed it with the Superior Court instead of the Arizona Court of Appeals.

         On December 27, 2016, Stith filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, and filed an Amended Petition on May 8, 2017. The Defendant filed an Answer, which asserted the Petition was barred by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) one-year statute of limitation and procedural bar, but miscalculated the limitation period based on the filing date of the Amended Petition, not the original Petition. The Magistrate Judge asked for further briefing. A Supplemental Answer was filed on September 5, 2017. Petitioner filed a Reply. Subsequently, the Magistrate Judge found that Claim One, Two and Four are procedurally defaulted and Claim Three fails on the merits.

         STANDARD OF REVIEW

         The duties of the district court in connection with a R&R by a Magistrate Judge are set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1). Where the parties object to a R&R, “‘[a] judge of the [district] court shall make a de novo determination of those portions of the [R&R] to which objection is made.'” Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (quoting 28 U.S.C. § 636(b)(1)).

         This Court's ruling is a de novo determination as to those portions of the R&R to which there are objections. 28 U.S.C. § 636(b)(1)(C); Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc). To the extent that no objection has been made, arguments to the contrary have been waived. Fed.R.Civ.P. 72; see 28 U.S.C. § 636(b)(1) (objections are waived if they are not filed within fourteen days of service of the R&R), see also McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980) (failure to object to Magistrate's report waives right to do so on appeal); Advisory Committee Notes to Fed.R.Civ.P. 72 (citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974) (when 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)).

         The parties were sent copies of the R&R and instructed that, pursuant to 28 U.S.C. § 636(b)(1), they had 14 days to file written objections. See also, Fed.R.Civ.P. 72 (party objecting to the recommended disposition has fourteen (14) days to file specific, written objections). The Petitioner filed three documents, all captioned: “Response to Second Supplement to Limited Answer to Petition for Writ of Habeas Corpus” (Docs. 29, 30, and 30-1.) The Court considers Petitioner's arguments in these filings as his objections to the R&R, and the Court considers the parties' briefs considered by the Magistrate Judge in deciding the Petition.

         OBJECTIONS

         The Petitioner accepts that Claim Four was not properly exhausted, but objects to dismissal of Claims One, Two, and Three. He contends that these are claims he has been pushing from the beginning.

         In Claim One, Petitioner asserted his trial counsel was ineffective for failing to impeach his girlfriend's testimony that she saw Stith earlier on the day of the attempted robbery in the company of Carlos Peyron, his co-defendant, when in fact he was in the company of a different Carlos. (R&R (Doc. 28) at 6 (citing Amended Petition (Doc. 10)). “In Claim Two, Petitioner Stith argues the trial court gave an erroneous instruction as to felony murder.” Id. These claims were first raised on September 23, 2013, when Stith filed a petition for post-conviction relief. (R&R (Doc. 28) at 2 (citations omitted). On March 22, 2016, the trial court rejected these claims and denied him post-conviction relief.

         The Magistrate Judge correctly found: 1) these claims were not properly exhausted because Stith filed an untimely petition for review on July 16, 2016, which exceeded the thirty days allowed to seek review; 2) he incorrectly filed the petition with the Superior Court instead of with the Arizona Court of Appeals so the Petition was never reviewed by the appellate court, and 3) these claims are procedurally defaulted because the deadline to file the petition has passed and he cannot file a petition for review now. “If the petitioner is in custody pursuant to a judgment imposed by the State of Arizona, he must present his claims to the Arizona Court of Appeals for review.” (R&R (Doc. 20) at 5 (citations omitted).

         Petitioner did raise Claim Three from the beginning. In his direct appeal, he argued that the evidence was insufficient to support his conviction. “The Arizona Court of Appeals concluded that ‘[a]lthough largely circumstantial, this was sufficient evidence from which a rational juror could find Stith guilty beyond a reasonable doubt, and the trial court therefore did not err in denying Stith's Rule 20 motion.'” (R&R (Doc. 28) at 8 (quoting (Memorandum Decision (Doc. 21) at 66.) The evidence at trial, as summarized by the Magistrate Judge is, as follows:

In May of 2010, three Hispanic men and one black man attempted to rob a car stereo store. [] The four men held the store owner and one employee at gunpoint. [] “The employee victim testified it was ‘the black guy' who held a gun to his back and that ‘the black man' had threatened him.” []. The robbers demanded money and stereo equipment. [] The owner and his employee eventually managed to break free and grab their own guns. [] A melee ensued; gunshots were exchanged; one of the robbers was shot and killed. [] ...

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