Date v. Schriro

Decision Date26 November 2008
Docket NumberNo. CV 07-368-PHX-MHM (LOA).,CV 07-368-PHX-MHM (LOA).
Citation619 F.Supp.2d 736
PartiesTracy Dale DATE, Petitioner, v. Dora B. SCHRIRO, et al., Respondents.
CourtU.S. District Court — District of Arizona

Tracy D. Date, Winslow, AZ, pro se.

Kent E. Cattani, Office of the Attorney General, Phoenix, AZ, for Respondents.

ORDER

MARY H. MURGUIA, District Judge.

Petitioner Tracy Dale Date ("Petitioner"), pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on February 20, 2007; the Petition raises 24 claims for relief. (Dkt. #1). The Court referred the matter to United States Magistrate Judge Lawrence O. Anderson, who issued a 68-page Report and Recommendation on July 22, 2008, recommending that the Court deny all 24 claims of Petitioner's Petition for Writ of Habeas Corpus. (Dkt. # 19). Petitioner filed a written objection to the Report and Recommendation on September 19, 2008. (Dkt. # 22).

I. STANDARD OF REVIEW

A district court must review de novo the legal analysis in a Magistrate Judge's Report and Recommendation. See 28 U.S.C. § 636(b)(1)(C). In addition, a district court must review de novo the factual analysis in the Report and Recommendation for those facts to which objections are filed. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc); see also 28 U.S.C. § 636(b)(1)(C) ("A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made."). "Failure to object to a magistrate judge's recommendation waives all objections to the judge's findings of fact." Jones v. Wood, 207 F.3d 557, 562 n. 2 (9th Cir.2000).

II. BACKGROUND

Petitioner is currently serving a sentence of life imprisonment with the possibility of parole after serving 25 calendar years for conspiracy to commit first degree murder, A.R.S. §§ 13-1003, 1105. (Dkt. # 19, pp. 9-12). After direct appeal and post-conviction review, Petitioner filed the instant Petition for Writ of Habeas Corpus, raising 24 claims for relief. (id., p. 15). After reviewing the Petition, Respondents' Answer, and Petitioner's Traverse, Magistrate Judge Anderson issued a detailed Report and Recommendation, recommending that the Court deny the Petition. (id., p. 68). Petitioner subsequently objected to the Report and Recommendation on all 24 claims for relief in his Petition. (Dkt. # 22).

In his objection, Petitioner simply restates most of his claims for relief and then states that he objects to the Magistrate Judge's denial of his claims and relies on his Traverse to the State's Answer to his Petition for Writ of Habeas Corpus. (id.). However, Petitioner provides substantive objections with respect to two of his claims for relief: (1) that his conviction violates the Fourteenth Amendment because there was insufficient evidence to prove that he and his co-conspirators intended to cause the death of another person (Dkt. # 22, pp. 2-7), and (2) that his trial counsel was ineffective in violation of the Sixth Amendment because he advised Petitioner that Petitioner could not be found guilty of conspiracy to commit first degree murder based on conditional intent (id., pp. 12-17).

III. DISCUSSION

Petitioner makes a number of objections to Magistrate Judge Anderson's Report and Recommendation without giving any explanation as to why he believes that the Magistrate Judge's legal or factual analysis is incorrect. Specifically, Petitioner gives no explanation for his objections to Grounds II through X and Grounds XI(B) through XXIV. After a thorough and independent review of those issues as presented, the Court finds itself in agreement with Magistrate Judge Anderson's Report and Recommendation. As such, the Court will adopt the Report and Recommendation on those claims without further discussion and deny Petitioner's Petition for Writ of Habeas Corpus with respect to Grounds II through X and XI(B) through XXIV.

However, Petitioner substantively objects to the Magistrate Judge Anderson's Report and Recommendation on Grounds I and XI(A) in his Petition for Writ of Habeas Corpus. As such, the Court will now turn to those claims for relief.

A. Ground I—Fourteenth Amendment

In Ground I of his Petition for Writ of Habeas Corpus, Petitioner alleges that his conviction violates the Fourteenth Amendment because there was insufficient evidence to prove that he and his co-conspirators intended to cause the death of another person. (Dkt. # 1, p. 15). In his Report and Recommendation, Magistrate Judge Anderson found that Petitioner's Fourteenth Amendment claim is unexhausted and procedurally barred from federal habeas review, and in the alternative fails on the merits because Petitioner has not established that the state court's resolution of his claim was contrary to or resulted in an unreasonable application of federal law. (Dkt. # 19, pp. 27, 31).

Petitioner appears to concede that his claim is unexhausted and procedurally barred from federal habeas review absent a showing of "cause and prejudice" or "fundamental miscarriage of justice." See Dkt. # 22, p. 2 (contending that he "meets both prongs of `cause and prejudice' as well as `fundamental miscarriage of justice'"). As discussed in the Report and Recommendation, Petitioner's mere citation to the Fourteenth Amendment on direct appeal was insufficient to exhaust the instant federal claim. See, e.g., Shumway v. Payne, 223 F.3d 982, 987 (9th Cir.2000) (insufficient for prisoner to have made "a general appeal to a constitutional guarantee"). In addition, the Court agrees with the Magistrate Judge's finding that Petitioner's claim is procedurally barred from federal habeas review; the Court disagrees with Petitioner's assertion that "[i]t is a fundamental miscarriage of justice to affirm a conviction for conspiracy to commit first degree murder based on something less than the required mens rea element of specific intent in this case." (Dkt. #22, p. 2). However the Court will first turn to the merits of Petitioner's claim, and specifically Petitioner's assertion that the Arizona Court of Appeals's use of Holloway v. United States, 526 U.S. 1, 119 S.Ct. 966, 143 L.Ed.2d 1 (1999), was "misplaced" and the Court's holding that conditional intent is sufficient to establish the mens rea for conspiracy to commit first degree murder violates the Fourteenth Amendment. (Id., p. 7).

At the time of Petitioner's trial, first degree murder under A.R.S. § 13-1105 was considered a "specific intent" crime, requiring the specific intent to kill another person. See Dkt. # 19, p. 28; State v. Murray, 184 Ariz. 9, 32, 906 P.2d 542 (1995). However, Arizona courts had not yet addressed the question of whether "conditional intent" was sufficient to satisfy the mens rea requirement of a "specific intent" crime. See id. at p. 29. The Arizona Court of Appeals considered that question on appeal and relied on Holloway and People v. Vandelinder, 192 Mich.App. 447, 481 N.W.2d 787 (Mich.1992), to hold that Petitioner's claim failed because conditional intent was in fact sufficient under Arizona law to establish the mens rea for conspiracy to commit first degree murder. See Dkt. # 19, p. 29. Petitioner argues that Court of Appeals's conclusion is based on an improper extension of the principle espoused in Holloway and is contrary to the Arizona Supreme Court's ruling in Evanchyk v. Stewart, 202 Ariz. 476, 47 P.3d 1114 (2002).

As the Magistrate Judge clearly stated, the appropriate standard of review applicable to Petitioner's request for federal habeas relief is whether the state court's adjudication of Petitioner's federal claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1) (emphasis added). As such, to the extent that Petitioner challenges the Arizona Court of Appeals's application of state law, e.g., Evanchyk, his claim is not cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.").

However, in rejecting Petitioner's Fourteenth Amendment claim, the Arizona Court of Appeals also cited to the U.S. Supreme Court's decision in Holloway for the proposition that "a defendant may not negate a proscribed intent by requiring a victim to comply with a condition he has no right to impose; an intent to kill, in the alternative, is nevertheless, an intent to kill." 526 U.S. at 9, 119 S.Ct. 966. In Holloway, the Supreme Court found that conditional intent satisfied the intent requirement in the federal car-jacking statute, 18 U.S.C. § 2119, which required the defendant to have the requisite intent to commit the crime. Thus, because Arizona's statute governing conspiracy to commit first-degree murder also required the defendant to have the requisite intent to commit the crime, the Arizona Court of Appeals drew an analogy between the two statutes to find that conditional intent satisfied the intent requirement under A.R.S. § 13-1005.

Despite Petitioner's etymological foray into the uses and misuses of the word "intent," Petitioner offers no sufficient explanation for why the Arizona Court of Appeals's application of the principle espoused in Holloway to Arizona's statute governing conspiracy to commit first-degree murder was contrary to or resulted in an unreasonable application of federal law. Petitioner merely states that "Holloway is a completed offense under a federal car-jacking statute (18 U.S.C. § 2119) whereas the instant case is an Arizona conspiracy (a...

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