United States District Court, D. Arizona
Murray Enow, Chief United States District Judge.
before the Court is a Report and Recommendation
(“R&R”) (Doc. 76) issued by Magistrate Judge
Eileen S. Willett recommending that Petitioner Richard
Gray's (“Petitioner”) Third Amended Petition
under 28 U.S.C. § 2254 for a Writ of Habeas Corpus
(“Third Amended Petition”) (Doc. 52) be dismissed
with prejudice. For the following reasons, the Court adopts
the R&R and dismisses the Third Amended Petition with
background of this case was thoroughly summarized in the
R&R and is incorporated here.
In April 2013, Petitioner entered into a plea agreement in
which Petitioner agreed to plead guilty to the following
Arizona state crimes: (i) attempted sexual conduct with a
minor, a class 3 felony and dangerous crime against children;
(ii) molestation of a child, a class 2 felony and dangerous
crime against children, and (iii) public sexual indecency, a
class 5 designated felony. (Doc. 53-1 at 6-9.) The trial
court accepted Petitioner's guilty pleas and sentenced
Petitioner to a total of ten years in prison, followed by
lifetime probation. (Id. at 12-14; Doc. 53-2 at
2-7.) In July 2013, Petitioner filed an of-right Notice of
Post-Conviction Relief (“PCR”). (Doc. 53-2 at
28-29.) The trial court appointed counsel, who could not find
any claims for relief. (Id. at 31-32.) Petitioner
thereafter filed a pro se PCR Petition. (Doc. 53-3 at 2-142.)
The trial court found that Petitioner failed to raise a
colorable claim and dismissed the proceeding. (Doc. 53-4 at
14-16.) Petitioner sought further review by the Arizona Court
of Appeals, which denied relief in January 2017.
(Id. at 41-43.)
In 2017, Petitioner initiated a second PCR proceeding.
(Id. at 45-89.) The trial court dismissed the
proceeding as untimely. (Id. at 91-94.) The Arizona
Court of Appeals affirmed the dismissal. (Id. at
It is undisputed that Petitioner timely initiated this
federal habeas proceeding in 2017. (Doc. 1.) On May 22, 2017,
Petitioner filed a First Amended Petition that raised four
habeas grounds, which the Court required Respondents to
answer. (Docs. 9, 10.) On September 26, 2017, the Court
granted Petitioner's request to file a Second Amended
Petition that raised a fifth ground for relief and
incorporated by reference the four grounds raised in
Petitioner's First Amended Petition. (Doc. 31.) In July
2018, before Respondents answered the Second Amended
Petition, Petitioner sought leave to file a Third Amended
Petition. (Doc. 49.) The Court granted the request. (Doc.
51.) The Third Amended Petition presents three grounds for
habeas relief. In their Limited Answer (Doc. 53), Respondents
address all the grounds that Petitioner raised in his First,
Second, and Third Amended Petitions. However, as Petitioner
has acknowledged, only the three grounds presented in the
Third Amended Petition are at issue. (Doc. 62 at 6)
(“Petitioner filed a Third Amended Petition and waived
his First and Second Petition as moot . . . .”).
Third Amended Petition asserts that (1) A.R.S. §
13-1407(E) unconstitutionally shifts the burden of proving
intent to the defendant; (2) A.R.S. § 13-1410 et seq is
unconstitutionally vague; and (3) trial counsel was
ineffective for failing to discover the unconstitutionality
of the Arizona statutes. The R&R agreed with Respondents
and concluded that all claims raised in the Third Amended
Petition are procedurally defaulted without excuse.
Accordingly, the Magistrate Judge recommended that the Court
dismiss the Third Amended Petition with prejudice. (Doc. 76
at 10.) The Magistrate Judge further recommended that the
Court deny a Certificate of Appealability and
Petitioner's request for leave to proceed in forma
pauperis. (Id.) Petitioner timely objects to the
Magistrate Judge's failure to consider the constitutional
question raised in the Third Amended Petition. Petitioner
asserts that the Magistrate Judge errored in not concluding
that the constitutional issue constitutes the “cause
and prejudice” required to excuse a procedural default.
Standard of Review
“district judge may refer dispositive pretrial motions,
and petitions for writ of habeas corpus, to a magistrate, who
shall conduct appropriate proceedings and recommend
dispositions.” Thomas v. Arn, 474 U.S. 140,
141 (1985); see also 28 U.S.C. § 636(b)(1)(B);
Estate of Connors v. O'Connor, 6 F.3d 656, 658
(9th Cir. 1993). Any party “may serve and file written
objections” to the R&R. 28 U.S.C. § 636(b)(1).
“A judge of the court shall make a de novo
determination of those portions of the report or specified
findings or recommendations to which objection is
made.” Id. District courts, however, are not
required to conduct “any review at all . . . of any
issue that is not the subject of an objection.”
Arn, 474 U.S. at 149. A district judge “may
accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate.” 28 U.S.C.
Petitioner's claims are procedurally defaulted.
federal habeas court generally may not review a claim if the
state court's denial of the claim rests on independent
and adequate state law grounds. See, e.g., Zichko v.
Idaho, 247 F.3d 1015, 1021 (9th Cir. 2001) (“The
independent and adequate state ground doctrine ‘applies
to bar federal habeas when a state court declined to address
a prisoner's federal claims because the prisoner had
failed to meet a state procedural requirement.'”)
(quoting Coleman v. Thompson, 501 U.S. 722, 729-30
(1991)). A state rule is “adequate” if it is
“clear, consistently applied, and well-established at
the time of petitioner's purported default.”
Zichko 247 F.3d at 1021 (quoting Petrocelli ...