Sanchez v. Attorney Gen.

• Decision Date: 29 March 2021
• Docket Number: No. CV-17-00224-TUC-RM,CV-17-00224-TUC-RM
• Parties: Michael Isidoro Sanchez, Petitioner, v. Attorney General of the State of Arizona, et al., Respondents.
• Court: U.S. District Court — District of Arizona

Michael Isidoro Sanchez, Petitioner, v. Attorney General of the State of Arizona, et al., Respondents.

No. CV-17-00224-TUC-RM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

March 29, 2021

ORDER

Pending before the Court is Magistrate Judge D. Thomas Ferraro's Report and Recommendation ("R&R") (Doc. 65), recommending that this Court dismiss Petitioner's Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Petitioner filed an Objection (Doc. 74) and a Supplement to the Objection (Doc. 76); Respondents filed a Response to the Objection and Supplement (Doc. 84); and Petitioner filed a Reply (Doc. 85). For the following reasons, Petitioner's Objection will be partially sustained and partially overruled, the R&R will be partially rejected and partially adopted, and the Amended Petition will be partially granted and partially denied.

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).

Where objections raised "are repetitive of the arguments already made to the magistrate judge, a de novo review is unwarranted." Vega-Feliciano v. Doctors' Ctr. Hosp., Inc., 100 F. Supp. 3d 113, 116 (D.P.R. 2015) (internal citation omitted); see also Camardo v. Gen. Motors Hourly-Rate Employees Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992) ("It is improper for an objecting party to . . . submit[] papers to a district court which are nothing more than a rehashing of the same arguments and positions taken in the original papers submitted to the Magistrate Judge. Clearly, parties are not to be afforded a 'second bite at the apple' when they file objections to a R&R.")).

A district court "has discretion, but is not required, to consider evidence presented for the first time in a party's objection to a magistrate judge's recommendation." United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000).

II. Background

In 2014, Petitioner pled guilty in Cochise County Superior Court to one count of sexual conduct with a minor and one count of attempted sexual conduct with a minor. (Doc. 51 at 26-49.) He was sentenced in accordance with the terms of his plea agreement to 25 years of imprisonment followed by a lifetime of probation. (Doc. 51 at 26-32.) Petitioner unsuccessfully sought state post-conviction relief through three rounds of post-conviction review ("PCR") proceedings. (See Doc. 65 at 1-4.) The details of Petitioner'sstate trial and PCR proceedings are set forth in the R&R and adopted herein.

On May 16, 2017, Petitioner filed a Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254. (Doc. 1.) On June 5, 2019, he filed an Amended Petition, alleging nineteen grounds for relief. (Doc. 41.) Respondents filed a Response to the Amended Petition (Doc. 50; see also Docs. 51 to 58) and Petitioner filed a Reply (Doc. 60).

Magistrate Judge Ferraro's R&R finds that the original § 2254 Petition was timely under the one-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), and that the Amended Petition relates back to the original and is thus also timely. (Doc. 65 at 5.) However, the R&R finds that the Amended Petition should be dismissed because the majority of the claims alleged therein are procedurally defaulted, waived, or non-cognizable on federal habeas review, and the remaining claims fail on the merits. (Id. at 6-28.)

In his Objection to the R&R, Petitioner raises general challenges to the R&R's procedural default findings and also makes specific arguments pertaining to the R&R's analysis of Grounds One, Two, Three, Four, Eight, Eleven, and Twelve of his Amended Petition. (Doc. 74.)

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, the writ will not be granted "with respect to any claim that was adjudicated on the merits" in state court unless the prior adjudication of the claim:

(1) 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; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). A state court decision is contrary to federal law "if the state court arrives at a conclusion opposite to that reached by [the United States Supreme Court] ona question of law or if the state court decides a case differently than [the Supreme Court] on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). A state court decision involves an unreasonable application of federal law "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id.

Federal habeas claims are subject to the "exhaustion rule," which requires that the factual and legal basis of a claim be presented first to the state court. 28 U.S.C. § 2254(b)(1)(A); Weaver v. Thompson, 197 F.3d 359, 363-64 (9th Cir. 1999). If the petitioner is in custody as a result of a judgment imposed by the State of Arizona, and the case does not involve a life sentence or the death penalty, he must fairly present his claims to the Arizona Court of Appeals in order to satisfy the exhaustion requirement. See Castillo v. McFadden, 399 F.3d 993, 998 n.3 (9th Cir. 2005); Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999). In order to properly exhaust a claim for purposes of federal habeas review, the petitioner must identify the federal nature of the claim to the state court by citing federal law or precedent. Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), as amended by 247 F.3d 904.

A claim is exhausted but procedurally defaulted if it was presented in state court but the state court rejected it based on an independent and adequate state procedural bar. Bennett v. Mueller, 322 F.3d 573, 583 (9th Cir. 2003); Franklin v. Johnson, 290 F.3d 1223, 1230-31 (9th Cir. 2002). A claim is also technically exhausted but implicitly procedurally defaulted if the petitioner failed to raise it in state court and a return to state court to exhaust it would be futile considering state procedural rules. Franklin, 290 F.3d at 1230-31; see also O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999) (finding claims procedurally defaulted because habeas petitioner was time-barred from presenting his claims in state court); Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991) (noting that claims are barred from habeas review when not first raised before state courts and those courts "would now find the claims procedurally barred").

A federal habeas court may not review a procedurally defaulted claim unless "theprisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.'" Coleman, 501 U.S. at 750. To establish "cause," a petitioner must demonstrate that "some objective factor external to the defense impeded counsel's efforts to comply with the state's procedural rule." Id. at 753. To establish "prejudice," a petitioner must demonstrate actual, not possible, harm resulting from the alleged violation. Murray v. Carrier, 477 U.S. 478, 494 (1986); see also United States v. Frady, 456 U.S. 152, 170 (1982) (to show prejudice, a petitioner must demonstrate that the alleged constitutional violation worked to the prisoner's "actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions."). To establish a "fundamental miscarriage of justice," a petitioner must "show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." Schlup v. Delo, 513 U.S. 298, 327 (1995).

IV. Discussion

The Court will first discuss Petitioner's general objections to the R&R's procedural default findings and then discuss Petitioner's objections to the R&R's analysis of specific claims.¹

A. Procedural Default

Petitioner argues that Respondents waived their procedural default arguments by not raising them during pre-Answer briefing related to a motion to stay. (Doc. 74 at 3-4.) Magistrate Judge Ferraro considered this argument and rejected it, finding that Respondents were not required to raise their procedural default arguments at that time and that the exhaustion requirement can only be expressly waived. (Doc. 65 at 9-10.)

Because Petitioner merely raises the same arguments considered and rejected by the magistrate judge, de novo review is unnecessary. See Vega-Feliciano, 100 F. Supp. 3d at 116. Even applying de novo review, the Court finds that Magistrate Judge Ferrarocorrectly rejected Pet...