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Williams v. Ryan

United States District Court, D. Arizona

September 30, 2019

Macho Joe Williams, Petitioner,
v.
Charles L Ryan, et al., Respondents.

          ORDER

          Honorable Rosemary Marquez United States District Judge.

         On July 15, 2019, Magistrate Judge Leslie A. Bowman issued a Report and Recommendation (“R&R”) (Doc. 20), recommending that this Court deny Petitioner Macho Joe Williams's (“Petitioner”) Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus (Doc. 1). Petitioner filed an Objection to the R&R on July 31, 2019. (Doc. 22.) Respondents did not file a response to Petitioner's Objection.

         I. Standard of Review

         A district judge “may accept, reject, or modify, in whole or in part, ” a magistrate judge's proposed findings and recommendations. 28 U.S.C. § 636(b)(1). The district judge must “make a de novo determination of those portions” of a magistrate judge's “report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). The advisory committee's notes to Rule 72(b) of the Federal Rules of Civil Procedure state that, “[w]hen no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation” of a magistrate judge. Fed.R.Civ.P. 72(b) advisory committee's note to 1983 addition. See also Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999) (“If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error.”); Prior v. Ryan, CV 10-225-TUC-RCC, 2012 WL 1344286, at *1 (D. Ariz. Apr. 18, 2012) (reviewing for clear error unobjected-to portions of Report and Recommendation).

         II. Background

         In 2012, Petitioner was sentenced in Pima County Superior Court to an aggregate term of 51.5 years for “three counts of aggravated assault, two counts of kidnapping, and one count each of armed robbery, aggravated robbery, and weapons misconduct” after he, along with two co-defendants, was convicted of robbing a dry cleaner. (Doc. 16-3 at 95.) On direct appeal, he argued that the trial court erred “by denying his motions to sever and by failing to discharge a co-defendant's attorney who had previously represented Williams.” (Id. at 67-78, 95.) He also argued that the evidence was insufficient to support his convictions. (Id.) On December 23, 2013, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences but vacated his criminal restitution order. (Id. at 95- 105.)

         Petitioner filed a petition for post-conviction relief on June 10, 2015. (Doc. 16-3 at 114.) He argued that the trial court erred by running some sentences consecutive to others in violation of A.R.S. § 13-116. (Id. at 119.) He also argued that his prior counsel was ineffective “for failing to object to and raise the issue [of] sentencing error…” (Id. at 119.) The trial court granted relief in part, finding that the sentence for aggravated assault should run concurrently, not consecutively, to the sentences for armed robbery and aggravated robbery. (Doc. 16-4 at 75.) Defendant was resentenced thereafter. (Id. at 78-90.)

         Petitioner filed a petition for review of the trial court's post-conviction relief order on October 31, 2016. (Doc. 16-4 at 92.) The Court of Appeals granted review but denied relief on February 8, 2017 (Id. at 148-153.) The Arizona Supreme Court denied review on September 12, 2017. (Id. at 155.)

         In his timely § 2254 petition, filed on July 19, 2018, [1] Petitioner alleges four grounds for relief. (Doc. 1.) First, he claims (a) the trial court violated his constitutional rights by failing to sever his case from his co-defendant's and (b) failing to discharge his co-defendant's counsel on the grounds of a conflict of interest. (Doc. 1 at 6.) Second, Petitioner claims that his trial counsel was ineffective for various reasons, including a) failing to object to a false statement that a detective made to the grand jury, (b) failing to have his case severed from his co-defendant's or have his co-defendant's attorney removed, (c) failing to object to antagonistic defenses, and (d) failing to object to errors in sentencing. (Id. at 7.) Third, Petitioner claims that a detective lied to the grand jury that indicted him. (Id. at 8.) Fourth, Petitioner argues that there was insufficient evidence to support his convictions and sentences. (Id. at 9.)

         In the R&R, Magistrate Judge Bowman recommends that this Court deny the § 2254 Petition on the grounds that Petitioner's “claims are procedurally defaulted or not cognizable.” (Doc. 20 at 1.) The R&R finds that Claim 1(a)-that the trial court failed to protect Petitioner's constitutional rights by failing to sever his case from his co-defendants' cases-is procedurally defaulted because the Arizona Court of Appeals found it waived on direct appeal. (Id. at 5-6.) The R&R finds that Claim 1(b)-that the trial court failed to protect Petitioner's constitutional rights by failing to discharge his co-defendant's attorney on the grounds of a conflict of interest-is procedurally defaulted for the same reason. (Id. at 6.) The R&R further finds that these claims are not among those that would fall into the “sufficient constitutional magnitude” exception to the general waiver rule, and that Petitioner has not established cause and prejudice or a fundamental miscarriage of justice to excuse the procedural default of the claims. (Id. at 6-7.)

         The R&R finds that Claim 2 is procedurally defaulted because Petitioner did not raise the asserted ineffective-assistance-of-counsel arguments to the Arizona Court of Appeals, he cannot now return to state court to raise the claims in a new post-conviction relief petition, and he fails to demonstrate cause and prejudice or a miscarriage of justice. (Id. at 8.) The R&R finds that Claim 3-that a detective lied to the grand jury-is not cognizable in a habeas proceeding because Petitioner does not claim that the alleged lie “violated the Constitution or laws or treaties of the United States.” (Id. at 9.)

         Finally, the R&R finds that Claim 4 alleging insufficient evidence is unexhausted because, although Petitioner raised the issue to the Arizona Court of Appeals, he did not notify the court that he was raising a federal constitutional claim. (Id.) The R&R further finds that the claim is procedurally defaulted because Petitioner cannot now return to state court to properly present the claim, and that the procedural default cannot be excused because Petitioner fails to demonstrate cause and prejudice or a miscarriage of justice. (Id.) The R&R alternatively finds that Claim 4 fails on the merits. (Id. at 9-10.)

         In his Objection to the R&R, Petitioner argues that: (1) the trial court violated his rights by failing to remove his co-defendant's counsel due to a conflict of interest (Doc. 22 at 2); (2) the trial court should have ordered a severance of his trial (id.); (3) his trial counsel was ineffective (id. at 3); and (4) his appellate counsel was ineffective (id.). He requests that “a complete review of his entire case be made.” (Id.)

         III. Applicable Law

         The writ of habeas corpus affords relief to persons in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). If the petitioner is in custody pursuant to the judgment of a state court, ...


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