Nichols v. Jensen ( 2021 )

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Rayphe Daniel Nichols, No. CV-20-01295-PHX-DWL 10 Petitioner, ORDER 11 v. 12 Edward Jensen, et al., 13 Respondents. 14 15 On June 29, 2020, Petitioner filed a petition for a writ of habeas corpus under 28 16 U.S.C. § 2254 (the “Petition”). (Doc. 1.) On May 20, 2021, Magistrate Judge Bibles issued 17 a Report and Recommendation (“R&R”) concluding the Petition should be denied. (Doc. 18 10.) Afterward, Petitioner filed objections to the R&R (Doc. 11), Respondents filed a 19 response (Doc. 13), and Petitioner filed a motion for a certificate of appealability (“COA”) 20 (Doc. 12). For the following reasons, the Court overrules Petitioner’s objections, adopts 21 the R&R, denies a COA, and terminates this action. 22 I. Background 23 The Underlying Crime. In February 2015, around 2:00 a.m., Petitioner broke into a 24 home in South Phoenix and attacked the residents, a man and a woman, while they 25 attempted to guard the bedroom where their infant daughter was sleeping. (Doc. 10 at 1.) 26 During the struggle, the man hit Petitioner in the head several times with a baseball bat, 27 causing Petitioner to sustain severe head injuries. (Id. at 1-2.) Petitioner eventually fled 28 and was found by the police in a nearby parking lot, where he had collapsed. (Id. at 2.) 1 Trial Court Proceedings. Petitioner was charged with one count of second-degree 2 burglary and two counts of aggravated assault. (Id.) At trial, Petitioner did not testify and 3 the jury was instructed on self-defense, but only as it related to the assault charges. (Id. at 4 2 & n.2.) The jury voted to convict on all counts. (Id. at 2.) 5 At sentencing, the trial court found that Petitioner had eight prior felony convictions 6 and was on probation at the time of the offense. (Id.) The court sentenced Petitioner to 7 concurrent terms totaling 15 years for the new offenses and concurrent terms of 1.5 years 8 for the probation violations. (Id.) 9 Direct Appeal. Petitioner timely appealed his convictions and sentence. (Id.) In 10 his direct appeal, Petitioner asserted claims of (1) prosecutorial misconduct and (2) 11 instructional error. (Id.) The Arizona Court of Appeals affirmed and the Arizona Supreme 12 Court denied Petitioner’s petition for review. (Id.) 13 PCR Proceedings. Petitioner thereafter filed a timely notice of post-conviction 14 relief (“PCR”). (Id.) Afterward, Petitioner’s court-appointed counsel notified the court 15 that, having reviewed the record, he could not identify any colorable issues. (Id.) 16 Petitioner then filed a pro per PCR petition. (Id.) It included the following claims: 17 (1) his conviction and sentence were in violation of his constitutional rights; (2) the trial 18 court did not have jurisdiction to render judgment or impose sentence; (3) his sentence was 19 in excess of that authorized by the law; (4) his continued detention was unlawful; (5) 20 judicial bias; (6) instructional error; (7) juror bias; and (8) ineffective assistance of trial and 21 appellate counsel (“IAC”). (Id. at 2-3.) 22 On March 20, 2019, the trial court dismissed Petitioner’s Rule 32 petition, finding 23 that his claims of judicial bias, juror bias, and error in the jury instructions were precluded 24 as waived by his failure to present them on appeal. (Id. at 3.) As for the IAC claims, the 25 trial court rejected them on the merits because they were conclusory and speculative and 26 because Petitioner had failed to demonstrate deficient performance or prejudice. (Id.) 27 Afterward, the Arizona Court of Appeals granted review but summarily denied relief and 28 the Arizona Supreme Court denied review. (Id.) 1 The Petition. As noted, Petitioner filed the Petition in June 2020. (Doc. 1.) It raises 2 four grounds for relief: (1) violation of the right to an impartial judge (id. at 5-7); (2) due 3 process and Sixth Amendment violations arising from instructional and evidentiary errors 4 and the absence of an impartial jury (id. at 7-8); (3) violation of the right to an impartial 5 jury “due to its structurally deficient racial constitution” (id. at 8-10); and (4) IAC (id. at 6 10-13). 7 The R&R. The R&R concludes the Petition should be denied. (Doc. 10.) As for 8 Petitioner’s first ground for relief, the R&R concludes it is procedurally defaulted, because 9 Petitioner failed to raise it during his direct appeal, and that Petitioner has not demonstrated 10 cause or prejudice to excuse the default or asserted (let alone established) a claim of factual 11 innocence. (Id. at 9-10.) As for Petitioner’s second ground for relief, the R&R concludes 12 it should be denied on the merits because Petitioner “fail[ed] to establish that the state 13 court’s denial of this claim was an unreasonable application of United States Supreme 14 Court precedent regarding due process of law in the context of jury instructions.” (Id. at 15 10-11.) As for Petitioner’s third ground for relief, the R&R concludes it is procedurally 16 defaulted, because Petitioner failed to raise it during his direct appeal, and that Petitioner 17 has not demonstrated cause or prejudice to excuse the default or asserted (let alone 18 established) a claim of factual innocence. (Id. at 12-13.) As for Petitioner’s fourth ground 19 for relief, the R&R concludes it is procedurally defaulted in part, “[t]o the extent 20 [Petitioner] asserts different factual bases for his ineffective assistance of counsel claims 21 in his federal habeas petition than those asserted in his state habeas petition,” and otherwise 22 fails on the merits because “the state courts’ denial of relief was not an unreasonable 23 application of Strickland” and “purely speculative cursory allegations of deficient 24 performance or prejudice cannot support a claim of ineffective assistance of counsel.” (Id. 25 at 13-16.) Finally, the R&R concludes a COA should be denied because Petitioner has not 26 made a substantial showing of the denial of a constitutional right. (Id. at 17.) 27 II. Legal Standard 28 A party may file written objections to an R&R within fourteen days of being served 1 with a copy of it. Rules Governing Section 2254 Cases 8(b) (“Section 2254 Rules”). Those 2 objections must be “specific.” See Fed. R. Civ. P. 72(b)(2) (“Within 14 days after being 3 served with a copy of the recommended disposition, a party may serve and file specific 4 written objections to the proposed findings and recommendations.”). “The district judge 5 must determine de novo any part of the magistrate judge's disposition that has been 6 properly objected to. The district judge may accept, reject, or modify the recommended 7 disposition; receive further evidence; or return the matter to the magistrate judge with 8 instructions.” See Fed. R. Civ. P. 72(b)(3). 9 District courts are not required to review any portion of an R&R to which no specific 10 objection has been made. See, e.g., Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (“It does 11 not appear that Congress intended to require district court review of a magistrate’s factual 12 or legal conclusions, under a de novo or any other standard, when neither party objects to 13 those findings.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) 14 (“[T]he district judge must review the magistrate judge’s findings and recommendations 15 de novo if objection is made, but not otherwise.”). Thus, district judges need not review 16 an objection to an R&R that is general and non-specific. See, e.g., Warling v. Ryan, 2013 17 WL 5276367, *2 (D. Ariz. 2013) (“Because de novo review of an entire R & R would 18 defeat the efficiencies intended by Congress, a general objection ‘has the same effect as 19 would a failure to object.’”) (citations omitted); Haley v. Stewart, 2006 WL 1980649, *2 20 (D. Ariz. 2006) (“[G]eneral objections to an R & R are tantamount to no objection at all.”).1 21 III. Analysis 22 Petitioner’s first two objections, which are not a model of clarity, seem to touch 23 upon the issue of procedural default. Specifically, in his first objection, Petitioner “objects 24 to the [R&R] re-phrasing the claim 1-3 and then addressing only part of the claim and 25 limited answer by the State of Arizona.” (Id. at 1.) And in his second objection, Petitioner 26 1 See generally S. Gensler, 2 Federal Rules of Civil Procedure, Rules and 27 Commentary, Rule 72, at 422 (2018) (“A party who wishes to object to a magistrate judge’s ruling must make specific and direct objections. General objections that do not direct the 28 district court to the issues in controversy are not sufficient. . . . [T]he objecting party must specifically identify each issue for which he seeks district court review . . . .”). 1 argues the R&R erred by finding “that certain issues are procedural[ly] barred for not 2 raising claims on direct appeal.” (Doc. 11 at 2-5.) According to Petitioner, it was sufficient 3 for him to raise certain claims for the first time during his PCR proceeding. (Id. at 5 [“The 4 notion that a defendant [has] to raise a claim on direct appeal is a matter of interpretation 5 which the United States District Court is not bound and jurisdictional.”].) These objections 6 lack merit for the reasons identified by Respondents in their response—the R&R addressed 7 the merits of Ground 2, rather than rejecting it on procedural-default grounds, and correctly 8 found that Grounds 1 and 3 are procedurally defaulted because Petitioner failed to present 9 them in his direct appeal in state court. (Doc. 13 at 1-2 & n.1.) 10 In his third and fourth objections, Petitioner argues the R&R erred in rejecting his 11 IAC claim because “trial counsel were ineffective during critical stage . . . when he failed 12 to get the petitioner re-evaluate[d] for competency and ability to understand and participate 13 in his defense after going through a major brain surgery,” because “his attorney fail[ed] to 14 sup[p]ress his statement while still incoherent under heavy pain medication and still 15 recovering, . . . fail[ed] to raise the issue of self defense and [did] not represent[] his 16 objectives on appeal,” and because “counsel[’s] failures . . . subjected him to be convicted 17 of a higher offense and a more severe sentence imposed.” (Doc. 11 at 5-10.) These 18 objections lack merit. As noted, the R&R concluded that Petitioner’s IAC claim (to the 19 extent it is not procedurally defaulted) should be denied for the independent reasons that 20 he failed to develop his criticisms with any specificity, he failed to show deficient 21 performance, and he failed to show prejudice. Petitioner’s objections represent more of 22 the same. Petitioner does not, for example, explain why his counsel’s alleged failure to 23 raise the issue of self-defense resulted in a “higher offense” or “more severe sentence” in 24 a case where Petitioner (who had eight prior felony convictions) broke into a home at 2:00 25 a.m., engaged in a physical altercation with the residents, and was found outside soon 26 afterward by the police. 27 Finally, in his fifth and sixth objections, Petitioner argues he is entitled to a COA, 28 for the reasons stated in his separate COA-related motion, and raises a general objection to the entirety of the R&R. (/d. at 10.) The former objection lacks merit because, as the R&R correctly found, Petitioner has not made a substantial showing of the denial of a 3 || constitutional right and the latter objection lacks merit because general objections are 4|| impermissible under Rule 72. 5 Accordingly, IT IS ORDERED that: 6 (1) Petitioner’s objections to the R&R (Doc. 11) are overruled. 7 (2) The R&R’s recommended disposition (Doc. 10) is accepted. 8 (3) The Petition (Doc. 1) is denied. 9 (4) A Certificate of Appealability and leave to proceed in forma pauperis on || appeal are denied because Petitioner has not made a substantial showing of the denial of a 11 || constitutional right. 12 (5) Petitioner’s motion for a COA (Doc. 12) is denied. 13 (6) The Clerk shall enter judgment accordingly and terminate this action. 14 Dated this 8th day of July, 2021. 15 16 Lam a’ 17 f t _ oc Dominic W. Lanza 18 United States District Judge 19 20 21 22 23 24 25 26 27 28 -6-