United States District Court, D. Arizona
ORDER
Hon.
Jennifer G. Zipps Judge
Pending
before the Court is Magistrate Judge Leslie A. Bowman's
Report recommending the Court deny Petitioner Xavier
Nixon's Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2254. (Doc. 18.) Petitioner has filed an
objection to the Report and Recommendation and Respondents
have filed a response. (Docs. 21, 23). Also pending is
Petitioner's “motion for order to provide
Petitioner and this District Court with copy of
transcripts.” (Doc. 22.)
The
Court has considered the Report and Recommendation, the
Petition, and arguments raised in Petitioner's Objection
and Respondents' Response. For the reasons set forth
below, the Court will overrule the objection and adopt
Magistrate Judge Bowman's recommendation to deny the
Petition. The Court will deny Petitioner's motion for
transcripts.
I.
STANDARD OF REVIEW
This
Court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate
judge.” 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). See
also 28 U.S.C. § 636(b)(1); Fed R. Civ. P. 72.
II.
PROCEDURAL BACKGROUND
On
November 21, 2014, Petitioner was sentenced to a 15-year term
of imprisonment and a 5-year term of probation after pleading
guilty to attempted second degree murder and aggravated
assault. (Doc. 12-1 at 52-53.) At the sentencing hearing,
Petitioner was given written notice of his right to file for
post-conviction relief (PCR), which he acknowledged. (Doc.
12-1 at 59.) The deadline for filing an “of
right” PCR notice was February 19, 2015. (Doc. 12-2 at
16.)
Almost
three years later, on February 12, 2018, Petitioner filed pro
se a notice and petition for post-conviction relief. (Doc.
12-2 at 15-16; Doc. 1 at 13-19; Doc. 1-1 at 1- 20.) The PCR
court dismissed the notice and petition as untimely,
rejecting Petitioner's argument that the untimely filing
was not Petitioner's fault. (Doc. 12-2 at 15-17.)
Petitioner appealed the dismissal to the Arizona Court of
Appeals. (Id. at 2-12.) In addition to the claims
raised in the PCR petition, Petitioner also argued the PCR
court's dismissal of his petition was an unreasonable
determination of the facts. (Id. at 4.) The Arizona
Court of Appeals accepted review but denied relief on July
12, 2018, concluding Petitioner failed to show the PCR
court's denial of the PCR petition was an abuse of
discretion. (Id. at 65- 66.) Petitioner did not seek
review in the Arizona Supreme Court. (Doc. 1 at 6-10.)
On
August 17, 2018, Petitioner filed the pending Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. §
2254.[1] (Doc. 1). The Petition contains the
following claims:
(1) Petitioner is actually innocent because the record at the
change of plea hearing failed to show that he intentionally,
not recklessly, caused physical injury to the victim;
(2) the indictment was multiplicitous and his convictions
violated double jeopardy;
(3) first trial counsel was ineffective because counsel: (a)
operated under a conflict of interest; (b) refused to file a
motion to dismiss multiplicitous counts; and (c) advised
Petitioner to dismiss counsel and file a double jeopardy
motion; and second trial counsel was ineffective because
counsel: (d) failed to file a double jeopardy motion; (e)
stated erroneously Petitioner could receive consecutive terms
totaling 40 years if he went to trial; (f) informed the
prosecutor about a conversation counsel had with Petitioner
about an inaccuracy in the plea agreement; and (g) failed to
file a PCR notice for him; and
(4) the PCR court erred in failing to excuse his untimely
filing of the PCR notice and petition in ...