United States District Court, D. Arizona
A. Teilborg, Senior United States District Judge
before the Court is Petitioner's Amended Petition for
Writ of Habeas Corpus. The Magistrate Judge to whom this case
was assigned issued a Report and Recommendation
(“R&R”) recommending that the Amended
Petition be denied. (Doc. 87). Petitioner filed objections to
the R&R. (Doc. 98).
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.”).
indicated above, Petitioner has now filed objections to the
R&R. Accordingly, the Court will review the portions of
the R&R to which there is an objection de novo.
Review of State Court Decisions
Petition in this case was filed under 28 U.S.C. § 2254
because Petitioner is incarcerated based on a state
conviction. With respect to any claims that Petitioner
exhausted before the state courts, under 28 U.S.C.
§§ 2254(d)(1) and (2) this Court must deny the
Petition on those claims unless “a state court decision
is contrary to, or involved an unreasonable application of,
clearly established Federal law” or was based on
an unreasonable determination of the facts. See Lockyer
v. Andrade, 538 U.S. 63, 71 (2003). Further, this Court
must presume the correctness of the state court's factual
findings regarding a petitioner's claims. 28 U.S.C.
§ 2254(e)(1); Ortiz v. Stewart, 149 F.3d 923,
936 (9th Cir. 1998). Additionally, “[a]n
application for a writ of habeas corpus may be denied on the
merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the
State.” 28 U.S.C. § 2254(b)(2).
R&R recounts the factual and procedural background of
this case at pages 2- 7. Other than in the context of
specific legal arguments discussed below, neither party
objects generally to this recounting; accordingly, the Court
accepts and adopts it.
Petition for Writ of Habeas Corpus
Amended Petition (Doc. 5) raises thirteen grounds for relief.
Each of the thirteen grounds for relief are premised upon a
retroactive change in Arizona law (SB 1449), which altered
the burden of proof for self-defense claims. The R&R
finds that Petitioner's claims are technically exhausted
but procedurally defaulted due to Petitioner's failure to
appropriately raise his SB 1449 self-defense claims on direct
appeal or during post-conviction relief proceedings. The
R&R then finds that Petitioner's claims of
ineffective assistance of counsel do not excuse the
procedural default. Likewise, the R&R finds the default
is not excused by a demonstration of a “fundamental
miscarriage of justice” because Petitioner failed to
demonstrate actual innocence. This Court agrees that
Petitioner's claims are procedurally defaulted without
excuse. Finally, under a merits review, the R&R concludes
that Petitioner's self-defense claims fail as a matter of
federal law and this Court agrees.
Petitioner's Claims are Procedurally Defaulted
Exhaustion and Procedural Default
district court must reject Petitions for Writs of Habeas
Corpus if a petitioner does not exhaust state remedies for
his federal claims. Castille v. Peoples, 489 U.S.
346, 349 (1989) (citing Rose v. Lundy, 455 U.S. 509
(1982)). A petitioner satisfies this requirement if he
“fairly presents” the federal claim to the state
courts. Id. at 351. Procedural default occurs when a
petitioner has never presented a federal habeas claim in
state court and is now barred from doing so by the
state's procedural rules, including rules regarding
waiver and the preclusion of claims. See Castille,
489 U.S. at 351-52; Johnson v. Lewis, 929 F.2d 460,
462 (9th Cir. 1991). Procedural default also occurs when a
petitioner did present a claim to the state courts, but the
state courts did not address the merits of the claim because
the petitioner failed to follow a state procedural rule,
including rules regarding waiver and the preclusion of
claims. See, e.g., Ylst v. Nunnemaker, 501 U.S. 797,
802 (1991); Coleman v. Thompson, 501 U.S. 722,
727-28 (1991); Ellis v. Armenakis, 222 F.3d 627, 632
(9th Cir. 2000); Szabo v. Walls, 313 F.3d 392, 395
(7th Cir. 2002).
R&R finds that Petitioner's claims are technically
exhausted but procedurally defaulted because of
Petitioner's failure to appropriately raise his SB 1449
self-defense claims on direct appeal or during his
post-conviction relief proceedings. (Doc. 87 at 10- 11).
Petitioner objects to the Magistrate Judge's conclusion
that his claims are procedurally defaulted because Petitioner
claims he properly raised the SB 1449 issues in his state
habeas corpus petition. (Doc. 98 at 14-15). In his objection
Petitioner relies on State v. Manning to argue that,
under Arizona law, issues not raised on direct appeal or
during Rule 32 post-conviction relief proceedings may be
raised independently during a state habeas corpus proceeding
if the “post-conviction attacks” are not
specified under Rule 32. (Doc. 98 at 14).
State v. Manning, the Arizona Court of Appeals held
that a “challenge to a parole revocation is not within
the scope of amended Rule 32.” 143 Ariz. 139, 140 (App.
1984). In reaching its holding, the Arizona Court of Appeals
explained that Rule 32 was amended in 1975 and the amendment
removed certain language concerning probation and parole.
Id. After holding that parole revocation was not
within the scope of Rule 32, the court concluded its opinion
by stating “if a person in such circumstances does not
assert a specific ground designated by Rule 32 . . . then his
claim falls outside the scope of a petition for
post-conviction relief and his remedy is to file a petition
for writ of habeas corpus.” Id. at 141.
However, unlike Manning, the instant case concerns
the passage of SB 1449 and its retroactive effect. A new law,
like SB 1449, would arguably fall directly under Rule 32.1(g)
as a “significant change in the law that, if applied to
the defendant's case, would probably overturn the
defendant's conviction or sentence[.]” Ariz. R.
Crim. P. 32.1(g). Moreover, Petitioner's constitutional
and jurisdictional claims related to the enactment of SB
1449, likewise, fall under Rule 32.1(a) and Rule 32.1(b).
See Ariz. R. Crim. P. 32.1(a), (b) (where grounds
for relief include “[t]he conviction or the sentence
was in violation of the Constitution of the United States or
of the State of Arizona” and “[t]he court was
without jurisdiction to render judgment or to ...