Bastian v. Ryan

          ORDER

          G. MURRAY SNOW CHIEF UNITED STATES DISTRICT JUDGE.

         Pending before the Court are Petitioner Thomas O. Bastian's Petition for Writ of Habeas Corpus (Doc. 1) and United States Magistrate Judge Bridget S. Bade's Report and Recommendation (“R&R”), which recommends that the Court deny the Petition. (Doc. 120). Bastian timely filed objections to the R&R. (Doc. 125). For the following reasons, the Court denies the Petition and accepts the R&R.

         BACKGROUND

         Because no party has objected to the procedural background as set forth in the R&R, the Court adopts the background as an accurate account. (Doc. 51 at 2-3).

         Magistrate Judge Bade recommends that Bastian's petition be denied and dismissed with prejudice. (Doc. 120 at 57). Bastian timely objects to ten of the Magistrate Judge's conclusions. (Doc. 125). He argues that Ground Four is not procedurally defaulted, because of the Supreme Court's decision in Martinez v. Ryan, and because he was denied access to his legal documents at the time of his first petition for post-conviction review. He also argues that the Magistrate Judge incorrectly determined that the adjudication of his Fifth Amendment claims in state court did not result in in an unreasonable application of Supreme Court precedent. (Doc. 53 at 5-7). Because the R&R correctly analyzed Bastian's claims, his petition for habeas corpus will be denied.

         STANDARD OF REVIEW

         This court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). “[T]he 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). 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).

         DISCUSSION

         I. Procedural Bar and Exhaustion of State Remedies

          Bastian does not object to Magistrate Judge Bade's determination that Grounds 2(a), 3, and 4 are procedurally barred from review by this Court. (Doc. 125 at 3-4). Instead, Bastian argues that his procedural default on Ground Four should be excused. (Id.).

         The writ of habeas corpus affords relief to persons in custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(c)(3). Review of Petitions for Habeas Corpus is governed by the Antiterrorism and Effective Death Penalty Act of 1996. 28 U.S.C. § 2244 et seq. For a state prisoner to obtain review of his federal claims in federal court, he must first exhaust all available state remedies. 28 U.S.C. § 2254(b)(1)(A).

         To exhaust state remedies, a prisoner must “fairly present” his claims to the appropriate state court. See Coleman v. Thompson, 501 U.S. 722, 731 (1991) (holding that “a state prisoner's federal habeas petition should be dismissed if the prisoner has not exhausted available state remedies as to any of his federal claims”). A prisoner must describe “both the operative facts and the federal legal theory on which his claim is based so that the state courts have a ‘fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim.” Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003) (citations and internal quotation marks omitted). In Arizona, for non-capital cases, a petitioner does not exhaust a claim for purposes of federal review unless he has presented it to the Arizona Court of Appeals. Castillo v. McFadden, 399 F.3d 993, 998 (9th Cir. 2004).

         Procedural default occurs when a petitioner has not exhausted a federal habeas claim by first presenting the claim in state court, and is now barred from doing so by the state's procedural rules (including rules regarding waiver and preclusion). Castille v. Peoples, 489 U.S. 346, 351 (1989). If a state court properly applies a state procedural bar during post-conviction proceedings that prevents the state court from considering the merits, those claims are also procedurally defaulted. Davila v. Davis, 137 S.Ct. 2058, 2064 (2017).

         In the event of procedural default, habeas review is foreclosed absent a showing of “cause and prejudice.” Reed v. Ross, 468 U.S. 1, 11 (1984). To demonstrate cause, a petitioner must show that “some objective factor external to the defense” impeded his efforts to raise the claim in state court. Davila v. Davis, 137 S.Ct. at 2065 (internal citations and quotations omitted); McCleskey v. Zant, 499 U.S. 467, 493 (1991). “Prejudice is actual harm resulting from the alleged constitutional violation.” Thomas v. Lewis, 945 F.2d 1119, 1123 (9th Cir.1992) (internal quotation omitted).

         A petitioner may also overcome procedural default for a single kind of claim- ineffective assistance of counsel at trial-by demonstrating “(1) ‘counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland,' and (2) ‘the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.'” Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 2012) (citing Martinez v. Ryan, 566 ...