United States District Court, D. Arizona
Thomas O. Bastian, Petitioner,
Charles L. Ryan, et al., Respondents.
MURRAY SNOW CHIEF UNITED STATES DISTRICT JUDGE.
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
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).
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
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).
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.).
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).
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).
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).
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
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 ...