United States District Court, D. Arizona
Murray Snow Chief United States District Judge
before the Court are Petitioner Jenghiz Kn Stewart's
Petition for Writ of Habeas Corpus (Doc. 1) and United States
Magistrate Judge John Z. Boyle's Report and
Recommendation (“R&R”), which recommends that
the Court deny the Petition. (Doc. 16). Stewart timely filed
objections to the R&R. (Doc. 17). 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 set
forth therein. (Doc. 16 at 2-3).
Judge Boyle recommends that Stewart's petition be denied
and dismissed with prejudice. (Doc. 16 at 16). Stewart timely
objects to three of the Magistrate Judge's conclusions.
(Doc. 17). He argues that Ground Three is not procedurally
defaulted. (Id. at 7). He also argues that the
Magistrate Judge incorrectly determined that Grounds One and
Two lack merit. (Id. at 15). Because the R&R
correctly analyzed Stewart's claims, his petition for
habeas corpus will be denied.
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
initially argues that the Magistrate Judge incorrectly
determined that Ground Three of his petition, the vindictive
prosecution claim, was procedurally defaulted. (Doc. 17 at
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
(“AEDPA”). 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.”
Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir.
2004) (citations 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. Id. at 998.
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 ...