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Miller v. Unknown Parties

United States District Court, D. Arizona

March 5, 2018

Frederick Angus Miller, Jr., Petitioner,
v.
Unknown Parties, et al., Respondents.

          ORDER

          David G. Campbell, United States District Judge

         Petitioner Frederick Angus Miller, Jr. was convicted of kidnapping, aggravated assault, sexual assault, and robbery in Maricopa County Superior Court on December 8, 2010. Doc. 8 at 1; Doc. 13-1 at 7.[1] This is the second occasion this Court has reviewed the petition for writ of habeas corpus filed by Petitioner pursuant to 28 U.S.C. § 2254. Doc. 8. On October 6, 2016, Magistrate Judge Bridget S. Bade issued a Report and Recommendation (“R&R”) that the petition be denied as untimely filed. Doc. 17. This Court accepted the R&R and denied the petition on December 2, 2016. Doc. 21. The Ninth Circuit reversed and remanded for further proceedings. Doc. 33. On November 2, 2017, Judge Bade issued a second R&R that the petition be denied. Doc. 43. Petitioner filed objections (Doc. 44), and Respondents filed a response (Doc. 47). For the reasons stated below, the Court will accept the R&R and deny the Petition.

         I. Legal Standard.

         The Court must undertake a de novo review of those portions of the R&R to which specific objections are made. Thomas v. Arn, 474 U.S. 140, 149 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); see also 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3). The Court need not review any portion of the R&R to which there are no specific written objections. Thomas, 474 U.S. at 149-54; Reyna-Tapia, 328 F.3d at 1121.

         II. Discussion.

         Judge Bade's 30-page R&R carefully considers each of the Petition's grounds for relief. See Doc. 43. Petitioner makes two arguments, but does not specifically object to the R&R's reasoning or findings. See Doc. 44.

         A. First Argument.

         Judge Bade concluded that Petitioner has not established actual innocence to overcome the procedural bar to many of his claims. Doc. 43 at 19-20. To meet this exception, Petitioner must show - with new, reliable evidence - that “it is more likely than not that no reasonable juror would have convicted him in [the] light of the new evidence.” Id. at 20 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). The R&R concludes that Petitioner did not establish actual innocence:

Petitioner asserts that he is innocent of the counts of conviction. However, Petitioner has not presented new evidence and has not shown that failure to consider his procedurally defaulted claims will result in a fundamental miscarriage of justice. Thus, he has not met Schlup's high standard and this exception does not excuse the procedural bar to habeas corpus review of his claims.

Doc. 43 at 20 (internal citation omitted).

         Petitioner does not object to these findings. See Doc. 44. Petitioner instead offers “new evidence” to establish his innocence. Id. at 2. Petitioner previously referenced this evidence in exhibits to his objection to the first R&R. Doc. 20 at 36. He also referenced it in his motion for further review before the second R&R, but it is unclear whether he tied it to his actual innocence argument. See Doc. 37 at 3, 7-8.

         “[A] district court has discretion, but is not required, to consider evidence presented for the first time in a party's objection to a magistrate judge's recommendation.” United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000). A “district court must actually exercise its discretion” in making this judgment. Id. at 622. The Ninth Circuit has repeatedly found abuses of discretion where a district court summarily rejects a pro se petitioner's new argument without actually exercising its discretion. E.g., Sossa v. Diaz, 729 F.3d 1225, 1231 (9th Cir. 2013) (pro se petitioner made “a novel claim in an unsettled area of law”); Akhtar v. Mesa, 698 F.3d 1202, 1209 (9th Cir. 2012) (pro se plaintiff was illiterate, disabled, and raising crucial facts in his objections); Brown v. Roe, 279 F.3d 742, 745-46 (9th Cir. 2002) (pro se petitioner was “functionally illiterate” and “making a relatively novel claim under a relatively new statute”).

         The Court exercises its discretion to consider the new evidence. See Doc. 44 at 2. In Schlup, the Supreme Court recognized the actual innocence gateway for excusing the bar of procedurally defaulted claims. 513 U.S. at 314-16. To pass through the Schlup gateway, a “petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Id. at 327; see also Gage v. Chappell, 793 F.3d 1159, 1166-67 (9th Cir. 2015) (explaining Schlup and its continued applicability after enactment of the Antiterrorism and Effective Death Penalty Act of 1996).

         The only evidence Petitioner presents in his objection is a sexual assault examination report completed by a forensic nurse examiner named Tiffany Kennedy (Doc. 44-1), and the trial testimony of Tiffany Kirby, who stated that she was the forensic nurse examiner who completed the report (Doc. 44-2 at 6-7). Petitioner argues that Ms. Kirby is not the one who completed the report and that she perjured herself by testifying that she was. Doc. 44 at 2. Petitioner further argues that Ms. Kennedy would have testified that the victim's vaginal injuries were consistent with masturbation, not forcible ...


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