United States District Court, D. Arizona
G. Campbell, United States District Judge
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. 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.
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.
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.
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
Doc. 43 at 20 (internal citation omitted).
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.
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
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).
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 ...