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Finger v. Ryan

United States District Court, D. Arizona

January 23, 2019

Stephen Paul Finger, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          ORDER

          David G, Campbell Senior United States District Judge

         Pending before the Court are the petition for writ of habeas corpus filed by pro se Petitioner Stephen Paul Finger (Doc. 1) and the Report and Recommendation (“R&R”) issued by Magistrate Judge Bridget S. Bade (Doc. 11). The R&R recommends that the petition be denied because Petitioner's claims are procedurally barred. Doc. 11. Petitioner has not requested oral argument. For the reasons that follow, the Court will accept the R&R and deny the petition.

         I. Background.

         Petitioner pleaded guilty in Maricopa County Superior Court to trafficking in stolen property and theft of a means of transportation. Doc. 11 at 1-2. He was sentenced to a ten-year term of imprisonment for the trafficking conviction and three years' probation for the theft conviction. Id. His § 2254 petition raises four grounds for relief.[1] In Ground One, Petitioner claims he received ineffective assistance of counsel. Doc. 1 at 43. In Ground Two, he asserts a due process violation based on missing transcripts and other evidence. Id. at 49. In Ground Three, Petitioner appears to allege that there was no evidence or factual basis for his guilty plea. Id. at 51. In Ground Four, he appears to challenge the evidence in his case, asserting that new evidence showed the alleged victim did not own the stolen motorcycle and that there was no victim of his crime. Id. at 65.

         II. Legal Standard.

         The Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by a magistrate judge in a habeas case. See 28 U.S.C. § 636(b)(1). The Court must undertake a de novo review of those portions of the R&R to which specific objections are made. See id.; Fed.R.Civ.P. 72(b)(3); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).

         III. Analysis.

         Judge Bade recommends that Petitioner's writ be denied because Petitioner failed to “fairly present” his claims to the state courts. Doc. 11 at 3-10. Judge Bade also found that Petitioner failed to show cause and prejudice or a fundamental miscarriage of justice. Doc. 11 at 10-13.

         In his objection, Petitioner reiterates several arguments from his § 2254 petition: (1) there was insufficient evidence supporting his plea; (2) counsel did not provide Petitioner's transcripts in violation of Rule 32.4(d); and (3) Petitioner's counsel was ineffective because counsel did not provide a factual basis for Petitioner's plea agreement, did not order “the transcripts” in preparation for a PCR, and did not go to trial after learning that Petitioner's crime had no victim. Id. at 3-7.

         Petitioner also makes several undeveloped arguments that are not directed at any portion of the R&R: (1) the State admitted to violating Petitioner's constitutional rights and that there was insufficient evidence to warrant a conviction; (2) Arizona Rules of Criminal Procedure 39(f)(3) provides that the Court may not proceed without a victim; (3) Rule 32.9(3) and 13-4231(a)-(f) apply as stipulated by Judge Bruce Cohen; and (4) in its response briefing, the State admitted that there was insufficient evidence to support his conviction. Doc. 13 at 2.

         These arguments are improper objections to the R&R. Under Rule 72(b), objections must be “specific . . . to the proposed findings and recommendations.” Id.; see 28 U.S.C. § 636(b)(1). An obvious purpose of this requirement is judicial economy - to permit magistrate judges to hear and resolve matters not objectionable to the parties. See Thomas v. Arn, 474 U.S. 140, 149 (1985). Because de novo review of an entire R&R would defeat the efficiencies intended by Congress, a general objection “has the same effect as would a failure to object.” Warling v. Ryan, No. CV 12-01396-PHX-DGC, 2013 WL 5276367, at *2 (D. Ariz. Sept. 19, 2013). Because Petitioner did not object to the R&R's procedural bar analysis, the Court will adopt it without further discussion. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).

         In his reply, Petitioner appears to argue that he had cause to default on his state claims because he had limited access to legal resources and knowledge of the law, and he was hindered by ADHD, SMI, and PTSD. Doc. 17 at 2. Petitioner also asserts that the various errors committed in the case, including improper sentencing, amount to a fundamental miscarriage of justice. Id. at 2-3. Generally, the Court does not consider arguments made for the first time in a reply brief. Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007). Regardless, Petitioner's arguments do not establish any of the exceptions for procedurally defaulted claims.

         A federal court may review the merits of a procedurally defaulted claim if a petitioner shows “cause for the default” and “actual prejudice.” Coleman v. Thompson, 501 U.S.722, 750 (1991). For “cause, ” a petitioner must establish that “some objective factor external to the defense impeded his efforts to comply with the State's procedural rule[s].” Murray v. Carrier, 477 U.S. 478, 488 (1986). For prejudice, a habeas petitioner must show that errors worked an actual and substantive disadvantage, infecting his entire trial with errors of constitutional dimension. United States v. Frady, 456 U.S. 152, 170 (1982).

         Petitioner's lack of legal acumen, limited access to legal resources, and other impairments are not objective external factors to establish cause. See Doc. 11 at 11-12; see also Schneider v. McDaniel, 674 F.3d 1144, 1154 (9th Cir. 2012) (“[A] pro se petitioner's mental condition cannot serve as cause for a procedural default, at least when the petitioner on his own or with assistance remains ‘able to apply for post-conviction relief to a state court.'”); Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 909 (9th Cir. 1986) (illiteracy not a sufficient factor ...


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