Struebing 130522 v. Shinn ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Charles Struebing, No. CV-18-04888-PHX-DWL 10 Petitioner, ORDER 11 v. 12 Charles L Ryan, et al., 13 Respondents. 14 15 On December 26, 2018, Petitioner initiated this action by filing a petition for a writ 16 of habeas corpus under 28 U.S.C. § 2254. (Doc. 1.) Petitioner eventually filed a third 17 amended petition (the “Petition”). (Doc. 22.) On September 23, 2020, Magistrate Judge 18 Boyle issued an amended Report and Recommendation (“R&R”) concluding the Petition 19 should be denied and dismissed with prejudice. (Doc. 35.) Afterward, Petitioner filed 20 objections to the R&R (Doc. 42) and Respondents filed a response (Doc. 43). For the 21 following reasons, the Court will overrule Petitioner’s objections, adopt the R&R, and 22 terminate this action. 23 I. Background 24 The Underlying Charges. In April 2009, Petitioner was charged with various felony 25 offenses, including armed robbery. (Doc. 35 at 2.) The charges were later expanded to 26 include first-degree murder with the possibility of a death sentence. (Id.) 27 The Pretrial Proceedings Related To Competency And Self-Representation. In 28 October 2010, Petitioner filed an “Omnibus Motion for Pro Per Status” in which he asserted 1 his “inalienable human rights” and withdrew consent “for any services [the court] may 2 have to offer.” (Id.) The following month, during a case management conference, 3 Petitioner requested self-representation but agreed to defer ruling on his request until the 4 next hearing. (Id.) 5 In January 2011, during a status conference, Petitioner reiterated his wish to 6 represent himself. (Id.) In response, the trial court ordered a Rule 11 evaluation to 7 determine whether Petitioner was competent to stand trial and to represent himself. (Id.) 8 In July 2011, Petitioner was found incompetent to stand trial and ordered to receive 9 treatment to restore competency. (Id.) 10 In June 2012, Petitioner was ordered competent to stand trial. (Id.) During the same 11 hearing, the trial court denied Petitioner’s request to represent himself, explaining that 12 Petitioner “would not follow relevant rules of procedure and the law of State of Arizona,” 13 would “engage in seriously disruptive behavior while in court,” and had “at times refused 14 to be transported and refused to participate when directly addressed by the bench on 15 occasion.” (Id.) 16 In November 2013, Petitioner filed a motion renewing his request to represent 17 himself. (Id.) 18 The Guilty Plea And Sentencing. In April 2014, Petitioner pleaded guilty to first- 19 degree murder and armed robbery. (Id. at 3.) 20 In May 2014, pursuant to the plea agreement, Petitioner was sentenced to life with 21 the possibility of parole after 25 years for the murder and 21 years of concurrent 22 imprisonment for the armed robbery. (Id.) 23 PCR Proceeding. In May 2014, Petitioner filed a timely notice for post-conviction 24 relief (“PCR”). (Id.) 25 In June 2015, Petitioner’s counsel filed a notice explaining that counsel was “unable 26 to find a tenable issue to submit to this Court” on Petitioner’s behalf. (Id.) 27 In January 2016, Petitioner filed an initial pro per PCR petition in which he alleged 28 that (1) his guilty plea was unlawfully induced and (2) the sentencing court lacked 1 jurisdiction. (Id.) 2 In July 2018, Petitioner filed a supplemental PCR petition. (Id.) In the supplemental 3 petition, Petitioner alleged (1) his right to self-representation was violated; (2) an unlawful 4 sentence pursuant to his plea agreement; (3) ineffective assistance due to counsel’s failure 5 to investigate forensics of the shooting and failure to consult medical experts; (4) 6 ineffective assistance due to counsel’s conflict of interest; and (5) ineffective assistance 7 due to counsel’s failure to investigate or present evidence of Petitioner’s “mental 8 retardation, organic brain damage and other emotional and mental impairments.” (Id.) 9 In October 2018, the trial court summarily dismissed the PCR petition. (Id.) 10 The PCR Appeal. In October 2018, Petitioner filed a timely petition for review. 11 (Id.) 12 On June 23, 2019, the Arizona Court of Appeals granted review but denied relief. 13 State v. Struebing, 2019 WL 3297252 (Ariz. Ct. App. 2019). 14 On April 3, 2020, Petitioner filed a petition for review in the Arizona Supreme 15 Court. (Doc. 35 at 4.) 16 On September 8, 2020, the Arizona Supreme Court denied review. (Id.) 17 The Habeas Claims. On December 26, 2018, Petitioner filed his initial habeas 18 petition. (Doc. 1.) In the operative Petition, Petitioner alleges four grounds for relief: “(1) 19 Petitioner’s Fifth and Fourteenth Amendment rights were violated when the Superior Court 20 refused to allow him to proceed pro per; (2) Petitioner’s Fifth and Fourteenth Amendment 21 rights were violated when Petitioner was offered a plea agreement that was not supported 22 by the current statute and was not made aware that the statute regarding parole would 23 change; (3) Petitioner’s Fifth, Sixth, and Fourteenth Amendment rights were violated 24 through ineffective assistance of counsel (“IAC”) when counsel “testified against 25 [Petitioner] in open court”; and (4) Petitioner’s Fifth, Sixth, and Fourteenth Amendment 26 rights were violated through ineffective assistance of counsel when counsel failed to secure 27 relevant evidence.” (Doc. 35 at 5.) 28 The R&R. The R&R concludes that Petitioner is not entitled to relief. As for 1 Petitioner’s first ground (denial of right of self-representation), the R&R concludes that, 2 because there is a split of authority among federal Circuit courts as to whether a defendant 3 waives any challenge to the denial of a self-representation request by pleading guilty, and 4 because the Supreme Court has not addressed this issue, the Arizona courts’ finding of 5 waiver was not contrary to, or an unreasonable application of, clearly established federal 6 law. (Id. at 8-10.) As for Petitioner’s second ground (plea agreement called for sentence 7 not available under Arizona law), the R&R concludes this claim is procedurally defaulted 8 because Petitioner only characterized it as a state-law claim in his PCR petition, that 9 Petitioner also defaulted any challenge premised on the availability of in-person hearings, 10 and that Petitioner has failed to demonstrate cause to excuse the procedural default. (Id. at 11 11-14.) As for Petitioner’s third ground (IAC—testifying against Petitioner), the R&R 12 concludes this claim is unexhausted because Petitioner did not raise it in his PCR petition 13 and that Petitioner has failed to demonstrate cause to excuse the procedural default. (Id. at 14 14-15.) As for Petitioner’s fourth ground (IAC—secure relevant evidence), the R&R 15 concludes that this “claim is unexhausted because he did not raise this claim in PCR 16 petition . . . or to the Arizona Court of Appeals in his petition for review” and that Petitioner 17 again failed to excuse the procedural default of this claim. (Id. at 15.) 18 II. Legal Standard 19 A party may file written objections to an R&R within fourteen days of being served 20 with a copy of it. Rules Governing Section 2254 Cases 8(b) (“Section 2254 Rules”). Those 21 objections must be “specific.” See Fed. R. Civ. P. 72(b)(2) (“Within 14 days after being 22 served with a copy of the recommended disposition, a party may serve and file specific 23 written objections to the proposed findings and recommendations.”). 24 District courts are not required to review any portion of an R&R to which no specific 25 objection has been made. See, e.g., Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (“It does 26 not appear that Congress intended to require district court review of a magistrate’s factual 27 or legal conclusions, under a de novo or any other standard, when neither party objects to 28 those findings.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) 1 (“[T]he district judge must review the magistrate judge’s findings and recommendations 2 de novo if objection is made, but not otherwise.”). Thus, district judges need not review 3 an objection to an R&R that is general and non-specific. See, e.g., Warling v. Ryan, 2013 4 WL 5276367, *2 (D. Ariz. 2013) (“Because de novo review of an entire R & R would 5 defeat the efficiencies intended by Congress, a general objection ‘has the same effect as 6 would a failure to object.’”) (citations omitted); Haley v. Stewart, 2006 WL 1980649, *2 7 (D. Ariz. 2006) (“[G]eneral objections to an R & R are tantamount to no objection at all.”).1 8 III. Analysis 9 Petitioner’s objections to the R&R (Doc. 42) are not a model of clarity. At the 10 outset, Petitioner seeks to raise a general objection “covering over all issue[s].” (Id. at 1.) 11 But as discussed above, such general objections are ineffective in the R&R context. 12 Next, Petitioner clarifies that he is only specifically objecting to the R&R’s rejection 13 of his IAC-based grounds for relief. (Id. [“[I] ask this court to accept Petitioner’s 14 Objections argued focusing on the merits of counsel was Ineffective . . . .”].) Thus, there 15 is no need to review the R&R’s rejection of Petitioner’s non-IAC grounds for relief. 16 As for the IAC-based claims, Petitioner’s primary argument is that “Counsel[’]s 17 failure to advise Petitioner of parole conflict, and that plea would not define parole 18 conditions as written law did at the time,” “[d]eprived Petitioner of information he needed 19 to make a fully informed dicission [sic] in the plea agreement.” (Id. at 1-4.) The problem 20 with this argument is that, as the R&R notes, it is different from the IAC theories Petitioner 21 attempted to raise during the state-court PCR proceedings. Petitioner makes no effort to 22 address the R&R’s finding of procedural default without excuse. 23 … 24 … 25 … 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 Accordingly, IT IS ORDERED that: 2 (1) Petitioner’s objections to the R&R (Doc. 42) are overruled. 3 (2) The R&R’s recommended disposition (Doc. 35) is accepted. 4 (3) The Petition (Doc. 22) is denied and dismissed with prejudice. 5 (4) A Certificate of Appealability and leave to proceed in forma pauperis on 6 || appeal are denied because Petitioner has not made a substantial showing of the denial of a || constitutional right and because dismissal is justified by a plain procedural bar and 8 || reasonable jurists would not find the procedural ruling debatable. 9 (5) | The Clerk shall enter judgment accordingly and terminate this action. 10 Dated this 12th day of January, 2021. 11 12 om ee 13 } ——— Dominic W. Lanza 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6-