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Montiel v. Hacked-Agnew

United States District Court, D. Arizona

December 6, 2018

Kenneth Allen Montiel, Petitioner,
v.
Carla Hacked-Agnew, et al., Respondents.

          ORDER

          James A. Teilborg Senior United States District Judge

         Pending before the Court is Petitioner's Petition for Writ of Habeas Corpus. (Doc. 1). The Magistrate Judge to whom this case is assigned issued a Report and Recommendation (“R&R”) recommending that the Petition be denied and dismissed with prejudice. (Doc. 16). Petitioner filed an objection to the R&R. (Doc. 17).

         I. REVIEW OF R&R

         This 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). The district court must review the Magistrate Judge's findings de novo only if a party objects to the Magistrate Judge's findings or recommendations. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). However, if no party objects to any fact or issue, the district court is not required to engage in “any review at all . . . .” Thomas v. Arn, 474 U.S. 140, 149 (1985). Accordingly, the Court will review the portions of the R&R to which Petitioner has objected de novo.

         II. PETITION FOR WRIT OF HABEAS CORPUS

         In his habeas petition, Petitioner raises four grounds for relief, each claiming a violation of Petitioner's due process rights under the Fourth, Fifth, and Fourteenth Amendments: (1) judicial vindictiveness, (2) judicial breach of verbal agreement during settlement conference, (3) the court's refusal to hold a suppression hearing, and (4) ineffective assistance of counsel. (Doc. 1).

         The Magistrate Judge found that the state court's determination related to Petitioner's first ground for relief was not contrary to, nor an unreasonable application of, federal law. (Doc. 16 at 11). The Magistrate Judge consequently recommended that the ground be denied and dismissed. (Id.) Petitioner objects to the Magistrate Judge's recommendation, alleging that the state court's decision “was/is contrary to or an unreasonable application of federal law.” (Doc. 17 at 3).

         With regard to Petitioner's remaining grounds for relief, the Magistrate Judge found that each of the grounds were procedurally barred because Petitioner had not fairly presented them in state court. (Doc. 16 at 12). The Magistrate Judge subsequently found no excuse for Petitioner's procedural default. (Id. at 12-13). Petitioner objects to the Magistrate Judge's findings, alleging that he “ha[d] fulfilled every requirement to properly exhaust [his] federal claims according to the law.” (Doc. 17 at 3).

         III. FACTUAL AND PROCEDURAL BACKGROUND

         The R&R recounts the factual and procedural background of this case, based primarily on the record from state court. (Doc. 16 at 1-3). Petitioner ostensibly “disagrees with the [Magistrate Judge's] . . . factual findings, ” but fails to address any specific factual inadequacies or discrepancies. (Doc. 17 at 2). Petitioner has failed to show that the state court record, relied on by the Magistrate Judge, was based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). Accordingly, the Court adopts that portion of the R&R.

         IV. DISCUSSION

         A. Ground One: Judicial Vindictiveness

         Petitioner's first ground for relief is under a theory of judicial vindictiveness. (Doc. 1 at 6). Petitioner claims that the state court judge was vindictive when sentencing him to a 13.5-year sentence after previously mentioning that a sentence of five years would probably be imposed if Petitioner lost at trial. (Id.). Petitioner asserts that “when a . . . judge[']s ultimate goal is a substantial ‘time increase, '” this leads to a “presumption of vindictiveness violating due process, Fourth, Fifth, and Fourteenth Constitutional Amendments.” (Id.). The Arizona Court of Appeals held that there was no judicial vindictiveness. (Doc. 16 at 1-2). The Magistrate Judge recommended that Petitioner's first ground be denied and dismissed because state court's decision was neither contrary to established federal law nor based on an unreasonable factual determination. (Doc. 16 at 11).

         i. ...


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