United States District Court, D. Arizona
ORDER
HONORABLE RANER C. COLLINS SENIOR UNITED STATES DISTRICT
JUDGE.
On July
10, 2019, Magistrate Judge Bruce G. Macdonald issued a Report
and Recommendation (“R&R”) in which he
recommended that this Court deny Petitioner Michael Allen
Hawkins' Petition Under 28 U.S.C. § 2254 for a Writ
of Habeas Corpus by a Person in State Custody (Doc. 1). (Doc.
28.) Petitioner filed an objection (Doc. 28) and Respondents
filed a response (Doc. 31). Upon review, the Court adopts the
Magistrate Judge's R&R and denies the § 2254
Habeas Petition.
I.
Report and Recommendation: Standard of Review
The
standard the District Court uses when reviewing a magistrate
judge's R&R is dependent upon whether a party
objects: where there is no objection to a magistrate's
factual or legal determinations, the district court need not
review the decision “under a de novo or any
other standard.” Thomas v. Arn, 474 U.S. 140,
150 (1985). However, when a party objects, the district court
must “determine de novo any part of the
magistrate judge's disposition that has been properly
objected to. The district judge may accept, reject, or modify
the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with
instructions.” Fed.R.Civ.P. 72(b)(3); see also
28 U.S.C. § 636(b)(1). Moreover, “while the
statute does not require the judge to review an issue de
novo if no objections are filed, it does not preclude
further review by the district judge, sua sponte or
at the request of a party, under a de novo or any
other standard.” Thomas, 474 U.S. at 154.
II.
Factual and Procedural Background
Petitioner
does not dispute the R&R's factual and procedural
history, as such the Court adopts the facts as stated in the
R&R and will not reiterate them here.
III.
Magistrate Judge's Conclusions
The
Magistrate Judge organized Petitioner's numerous
arguments into six categories alleging constitutional
violations. The first two claims concern (1) a violation of
Petitioner's speedy trial rights and (2) alleged coerced
testimony. The last four assert various claims of ineffective
assistance of counsel.
a.
Speedy Trial Calculation
First,
Judge Macdonald found that Petitioner's claim that his
Federal constitutional rights were violated when his trial
was prolonged past that required under the speedy trial
provisions was not properly presented in the State court.
This was because his speedy trial argument was never before
the state court as a Federal constitutional claim; instead
Petitioner asserted that it violated the Arizona state
procedural rules. The Magistrate Judge found the claim was
technically exhausted and procedurally defaulted.
b.
Coerced Testimony
Second,
the judge determined that Petitioner's claim that certain
testimony was coerced was expressly denied by the Arizona
Court of Appeals as procedurally barred. As such, the Court
could not consider this claim. Furthermore, Petitioner
presented his claim as newly-discovered evidence, not a
constitutional claim. Judge Macdonald noted that a claim may
only be heard in federal habeas if the state court was made
aware of the constitutional argument. Although Petitioner
mentioned the words Due Process, they were raised
superficially in the context of his state claim. Moreover, he
did not raise the issue to the Court of Appeals, but simply
told the appellate court to look at the argument in his
post-conviction petition. His failure to do more than mention
the constitution and Due Process issues meant the state
courts were not granted the opportunity to fairly review
these claims. Like the first claim, the Magistrate Judge
found this argument was procedurally barred.
c.
Ineffective Assistance of Counsel: Exculpatory
Voicemails
In
Plaintiff's first ineffective assistance of counsel
claim, he alleges that trial counsel was ineffective for
failing to admit and elicit exculpatory voicemail evidence.
The Magistrate Judge decided that since Plaintiff had merely
referred the state appellate court to his arguments in his
filing for post-conviction relief, he had not fairly
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