United States District Court, D. Arizona
G, Campbell Senior United States District Judge
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
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. 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.
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).
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.
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.
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.
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).
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.
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
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 ...