Wentworth 319638 v. Shinn ( 2020 )

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Andrew Christopher Wentworth, No. CV-19-01551-PHX-JJT (MHB) 10 Petitioner, ORDER 11 v. 12 Charles L. Ryan, et al., 13 Respondents. 14 15 Andrew Wentworth (“Petitioner”) filed a pro se Petition for Writ of Habeas Corpus 16 pursuant to 28 U.S.C. § 2254. (Doc. 1, “Petition.”) At issue now is United States Magistrate 17 Judge Michelle Burns’s Report and Recommendation (Doc. 13, “R&R”) in which she 18 recommends denying and dismissing the Petition with prejudice, upon her conclusion on 19 the merits that Petitioner is not entitled to habeas relief. Petitioner timely filed an Objection 20 to the R&R (Doc. 14), and David Shinn (“Respondent”) filed a Response thereto. 21 (Doc. 15.) Although not permitted under the applicable rules of practice or procedure, and 22 without leave of the Court, Petitioner filed a Reply to Objection (Doc. 16), which the Court 23 nonetheless considered. 24 Thereafter, Petitioner filed a Motion to Stay the habeas proceeding to allow him 25 time to raise and exhaust “new grounds” at the state level, which he would seek to add to 26 this matter via an amended Petition. (Doc. 17.) Respondent opposes that Motion. (Doc. 18.) 27 The Court considers the Motion here as well. 28 . . . . 1 In the R&R, Judge Burns correctly concluded that Petitioner’s due process claim 2 fails to meet the AEDPA requirements. The absence in A.R.S. § 13-1410—Arizona’s 3 criminal molestation statute—of an element requiring the state to prove sexual motivation 4 for a defendant’s act, and the trial court’s decision not to instruct the jury that it had to find 5 such intent in Petitioner’s case, is not “contrary to, or an unreasonable application of, 6 clearly established federal law as determined by the United States Supreme Court.” 7 28 U.S.C. §2254(d). To the extent Petitioner relied on this Court’s ruling in May v. Ryan, 8 245 F.Supp.3d 1145 (D. Ariz. 2017) to support his argument that the Arizona statute 9 provided for impermissible burden-shifting, the Ninth Circuit reversed this Court earlier 10 this year. 2020 WL 1492747 (9th Cir. March 27, 2020). Moreover, as Judge Burns correctly 11 noted, even if this question were not so clearly settled, Petitioner did not show prejudice as 12 required by O’Neal v. McAninch, 513 U.S. 432, 436, (1995). Petitioner’s Objection simply 13 repeats portions of his former arguments in conclusory fashion and does not erode or 14 challenge Judge Burns’s findings. The Court will adopt the R&R and dismiss the Petition. 15 The Court also will deny Petitioner’s Motion insofar as it seeks a stay to allow him 16 to exhaust other unspecified “new claims” at the state Court. To do so would be futile. The 17 time that has passed since his conviction became final will bar him from filing a subsequent 18 PCR request in state court, rendering his new issues unexhausted but procedurally 19 defaulted. To the extent any issue Petitioner would seek to raise at the state court would be 20 excepted from Rule 32.1’s and Rule 32.2’s time bar, he has failed to identify the issue to 21 allow the Court to evaluate it, and therefore he has failed to overcome futility. 22 IT IS ORDERED adopting in whole the R&R (Doc. 13) submitted in this matter 23 and overruling Petitioner’s Objection. (Doc. 14.) 24 IT IS FURTHER ORDERED denying and dismissing with prejudice the Petition 25 for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) 26 IT IS FURTHER ORDERED denying Petitioner’s Motion to Stay. (Doc. 17.) 27 . . . . 28 . . . . 1 IT IS FURTHER ORDERED denying a certificate of appealability and leave to proceed in forma pauperis. Petitioner has not established actual prejudice arising from any 3 || alleged constitutional error. The Clerk of Court shall close this matter. 4 Dated this 9th day of December, 2020. CN 6 wef folee— United State#District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-