Scott 310338 v. Shinn ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Raymond J Scott, No. CV-20-02343-PHX-DWL 10 Petitioner, ORDER 11 v. 12 David Shinn, et al., 13 Respondents. 14 15 On December 2, 2020, Petitioner filed a petition for a writ of habeas corpus under 16 28 U.S.C. § 2254 (the “Petition”). (Doc. 1.) On September 7, 2021, Magistrate Judge 17 Metcalf issued a Report and Recommendation (“R&R”) concluding the Petition should be 18 denied and dismissed with prejudice. (Doc. 12.) Afterward, Petitioner filed objections to 19 the R&R (Doc. 22) and Respondents filed a response (Doc. 23). For the following reasons, 20 the Court overrules Petitioner’s objections, adopts the R&R, and terminates this action. 21 I. Background 22 The Crime. On December 25, 2013, “[w]hile his ex-wife and three children were 23 visiting him . . . , Petitioner forced his ex-wife into the bedroom, and at gun point and later 24 knife point, attempted to rape [her]. At one point the victim escaped the bedroom, 25 intending to leave with the child still in the apartment, but Petitioner drug her back in and 26 threatened to kill everyone if she did not cooperate. At one point in the struggle, one of 27 the children came into the room, and the ex-wife threw her phone to her and sent her to get 28 help. She did so, taking one of the other children with her.” (Doc. 12 at 1.) 1 Trial Court Proceedings. On December 26, 2013, following his arrest, Petitioner 2 made an initial appearance in Maricopa County Superior Court. (Id. at 2.) 3 On January 2, 2014, Petitioner was indicted on charges of aggravated assault, sexual 4 assault, attempted sexual assault, kidnapping, public sexual indecency to a minor, and 5 threatening and intimidating. (Id.) 6 During trial, the prosecution introduced evidence that Petitioner had sexually 7 assaulted a former girlfriend in 1999. (Id.)1 Additionally, the prosecution amended Count 8 13 of the indictment (attempted sexual assault) to refer to “penile anal intercourse” rather 9 than “penile vaginal intercourse.” (Id.) 10 The jury ultimately convicted Petitioner of three counts of aggravated assault, one 11 count of attempted sexual assault, two counts of kidnapping, one count of public sexual 12 indecency to a minor, and one count of threatening and intimidating. (Id.) Petitioner was 13 acquitted of the remaining charges, including the charge in Count 13. (Id.) Petitioner was 14 sentenced to 25 years in prison. (Id.) 15 Direct Appeal. During his direct appeal, Petitioner was represented by counsel. 16 (Id.) Petitioner’s counsel “filed an opening brief arguing [1] the two kidnapping 17 convictions violated double jeopardy, and [2] admission of the prior sexual assault was 18 error. Beyond a parenthetical notation to a state case citation, Petitioner cited no federal 19 authority.” (Id.) Afterward, Petitioner attempted to file his own “Supplemental Opening 20 Brief,” in which he sought to raise additional claims of “error in amendment of the 21 Indictment, introduction of the prior sexual misconduct, and jury determination of 22 aggravation of sentence when not charged in the indictment.” (Id.) However, “[t]he 23 Arizona Court of Appeals struck the brief as improperly filed given Petitioner’s 24 1 See also State v. Scott, 403 P.3d 595, 597 (Ariz. Ct. App. 2017) (“In 1999, Scott 25 sexually assaulted C.T., a former girlfriend with whom he was living in Pennsylvania. Shortly after C.T. had ended their romantic relationship, Scott forced C.T. into her bedroom 26 in their shared apartment, restrained her with duct tape, and sexually assaulted her. Scott then immediately released C.T., gave her his gun, and threatened to stab her with a scalpel 27 if she did not kill him. After C.T. refused to shoot him, Scott allowed her to get dressed and leave, but threatened to kill himself if she spoke to the police. C.T. left and called the 28 police, who arrested Scott. Scott was found guilty of aggravated indecent assault and sentenced to prison.”). 1 representation, lack of right to a meaningful relationship with counsel, and counsel’s lack 2 of obligation to raise every claim requested.” (Id. at 2-3.) 3 In a published decision issued on September 12, 2017, the Arizona Court of Appeals 4 affirmed Petitioner’s convictions and sentence. State v. Scott, 403 P.3d 595 (Ariz. Ct. App. 5 2017). As for Petitioner’s first assignment of error (double jeopardy), the court held as 6 follows: 7 [W]hether [Petitioner] was properly convicted of two counts of kidnapping turns entirely on whether he restrained [the victim] continuously throughout 8 the entire ordeal, or released her and restrained her anew. . . . Here, [the 9 victim] briefly escaped [Petitioner] midway through the ordeal, when she ran from the bedroom to the living room . . . . [The victim] was momentarily 10 free, but chose not to run directly out of the residence, instead pausing to grab 11 her daughter. [The victim’s] choice of action and freedom of movement during that period showed [Petitioner] did not continue to restrain her, albeit 12 briefly, after he initially forced her into his bedroom. [Petitioner] then 13 committed a second act of kidnapping, separate from the first, when he grabbed [the victim] anew and pulled her back into the bedroom for the 14 purpose of sexual assault. For these reasons, [Petitioner’s] convictions for 15 two counts of kidnapping were not multiplicitous. 16 Id. at 598-99 (citations omitted). As for Petitioner’s second assignment of error (admission 17 of the prior conviction), the court held that it was properly admitted under Rule 404(b) of 18 the Arizona Rules of Evidence because, “[b]y raising the defenses of consent and no 19 specific intent, [Petitioner] brought into contention his own intent. [Petitioner’s] prior 20 sexual assault, strikingly similar in character to the current crime, was relevant to prove his 21 intent and lack of mistake as to [the victim’s] purported consent. In each crime, [Petitioner] 22 assaulted a previous partner, restrained her in a bedroom, menaced her with a weapon, and 23 threatened to kill himself if she called the police. Evidence of the previous similar crime 24 was not a mere inflammatory accusation against [Petitioner]; it was evidence that tended 25 to prove he was not acting under a mistaken understanding that [the victim] consented to 26 his acts.” Id. at 599-600. 27 Petitioner did not seek review by the Arizona Supreme Court. (Doc. 12 at 3.) 28 PCR Proceedings. On October 26, 2017, Petitioner initiated his post-conviction 1 relief (“PCR”) proceeding by filing a timely PCR notice. (Id. at 3.) However, Petitioner’s 2 court-appointed counsel subsequently filed a notice asserting an inability to find a 3 “colorable” issue for review. (Id.) 4 Afterward, “Petitioner filed his pro per PCR Petition, arguing: (1) constitutional 5 error in the amendment of the indictment and ineffective assistance of trial counsel in 6 objecting; (2) ineffective assistance of appellate counsel in failing to raise the challenge to 7 the amendment; (3) a denial of due process from the prosecution admitting improper or 8 inaccurate evidence; and (4) various constitutional errors in the supervening indictment 9 proceedings. (Id., citations omitted.) 10 The PCR court denied relief without holding an evidentiary hearing. (Id. at 3-4.) 11 As for Petitioner’s first, third, and fourth claims, the court concluded they were precluded 12 under Rule 32.2(a)(3) of the Arizona Rules of Criminal Procedure because Petitioner could 13 have raised them (but failed to raise them) during his direct appeal. (Id.) As for the second 14 claim (ineffective assistance of counsel (“IAC”)), the court rejected it on the merits “for 15 failing to show deficient performance or prejudice.” (Id.) 16 Petitioner sought further review in the Arizona Court of Appeals and Arizona 17 Supreme Court, but both courts rejected Petitioner’s requests for relief. (Id. at 4.) 18 The Petition. As noted, Petitioner filed the Petition in December 2020. (Doc. 1.) 19 The Court previously construed it as raising six grounds for relief: 20 In Ground One, Petitioner appears to claim that his rights to due process and confrontation were violated when the state was permitted to amend his 21 indictment after the close of evidence. In Ground Two, he claims that he 22 received ineffective assistance of counsel when his appellate attorney failed to raise on appeal the issue identified in Ground One. In Ground Three, 23 Petitioner claims that the state “knowing[ly]” relied on “improper or 24 inaccurate” information to obtain his conviction, in violation of due process. In Ground Four, Petitioner appears to contend that the trial court’s probable 25 cause determination violated his rights to due process and to confront 26 witnesses against him. In Ground Five, Petitioner claims that his kidnapping convictions and sentences violate the Fifth Amendment prohibition on 27 double jeopardy and constitute multiple punishments for a single offense. In 28 Ground Six, Petitioner alleges the trial court improperly admitted evidence of a prior sexual assault. 1 (Doc. 6 at 2.) 2 The R&R. The detailed, 33-page R&R concludes the Petition should be denied and 3 dismissed with prejudice. (Doc. 12.) First, the R&R concludes that five of the six claims— 4 all but the IAC claim in Ground Two—are procedurally defaulted or procedurally barred 5 on independent and adequate state grounds. (Id. at 11-18.) Second, the R&R concludes 6 that Petitioner cannot establish “cause and prejudice” to overcome these procedural bars to 7 Grounds 1 and 2-6. (Id. at 18-23.) Third, the R&R concludes that Petitioner cannot invoke 8 the “actual innocence” exception to the applicable exhaustion requirements because he 9 “fails to offer anything to show new reliable evidence that would preclude any reasonable 10 juror from convicting him.” (Id. at 23-24.) Fourth, the R&R concludes that, putting aside 11 the issue of exhaustion, Petitioner would not be entitled to habeas relief because his claims 12 fail on the merits. (Id. at 24-31.) Finally, the R&R concludes that a certificate of 13 appealability (“COA”) should be denied. (Id. at 32.) 14 II. Legal Standard 15 A party may file written objections to an R&R within fourteen days of being served 16 with a copy of it. Rules Governing Section 2254 Cases 8(b) (“Section 2254 Rules”). Those 17 objections must be “specific.” See Fed. R. Civ. P. 72(b)(2) (“Within 14 days after being 18 served with a copy of the recommended disposition, a party may serve and file specific 19 written objections to the proposed findings and recommendations.”). “The district judge 20 must determine de novo any part of the magistrate judge’s disposition that has been 21 properly objected to. The district judge may accept, reject, or modify the recommended 22 disposition; receive further evidence; or return the matter to the magistrate judge with 23 instructions.” See Fed. R. Civ. P. 72(b)(3). 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.”).2 8 III. Analysis 9 Petitioner’s objections to the R&R lack merit. As Respondents correctly note in 10 their response, “Petitioner’s objections largely amount to his repeating the same arguments 11 he raised in his habeas petition and reply.” (Doc. 23 at 1.) Indeed, the discussion in the 12 lengthy “Introduction” portion of Petitioner’s filing (Doc. 22 at 3-7) does not seem to be 13 tethered to the R&R at all. This approach is impermissible—at this stage of the 14 proceedings, Petitioner must identify specific flaws in the R&R’s reasoning, not simply 15 repeat his earlier arguments. For similar reasons, Petitioner’s attempt to raise a blanket 16 objection “to all of the recommendations” in the R&R (id. at 2) fails because it is 17 insufficiently specific. 18 To the extent Petitioner seeks to raise more specific objections in the latter portion 19 of his filing, those objections are unavailing. For example, in the assignments of error 20 denoted as No. 3 (“The State Knowingly Relied on Improper or Inaccurate Information to 21 Obtain [Petitioner’s] Conviction”), No. 5 (“Petitioner’s Protection from Multiple 22 Punishments under the Double Jeopardy Were Violated Because There Was Only One, 23 Continuing Kidnapping, But He Was Convicted of Two Seperate [sic] Charges of 24 Kidnapping”), and No. 6 (“The Trial Court Improperly Admitted Evidence of a Prior 25 Sexual Assault or Other Bad Acts Under Arizona Rules of Evidence 403 and 404”), 26 2 See generally S. Gensler, 2 Federal Rules of Civil Procedure, Rules and 27 Commentary, Rule 72, at 457 (2021) (“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 Plaintiff does not develop any reasoned argument at all—he merely “objects” to the R&R’s 2 analysis for unspecified reasons. (Doc. 22 at 15-16.) 3 Finally, although Petitioner’s arguments concerning the assignments of error 4 denoted (implicitly or explicitly) as No. 1 (“The Unlawful Amendments to Indictment”), 5 No. 2 (“Appellate Counsel Was Ineffective and its Errors or Omissions Was So Egregious 6 As to Amount to Incopetence [sic] or Sixth Amendment Violation”), and No. 4 7 (“Petitioner’s Due Process and Confrontation Rights Were Violated When the Preliminary 8 Hearing Was Set At His Initial Appearance Was Vacated When The Supervening 9 Indictment Was Filed”) are more detailed, he has failed to establish any error in the R&R’s 10 conclusion that habeas relief is unwarranted. For example, as to assignment of error No. 11 1, Petitioner’s arguments seemed to be premised on the notion that the amendment to the 12 indictment was not limited to Count 13 (as the R&R found) and instead pertained to other 13 counts, too. (Doc. 22 at 10-11.) But as Respondents correctly note, “Petitioner . . . does 14 not specify which additional counts of the indictment were allegedly amended in his 15 objections. And the only portions of the record he cites to come from his PCR petitions. 16 The record, however, only shows that Count 13 of the indictment was amended. 17 Furthermore, as observed in the R&R, Petitioner was acquitted of Count 13.” (Doc. 23 at 18 3.) Additionally, Petitioner’s apparent objection to the R&R’s finding of procedural 19 default as to the unlawful-amendment claim seems to be premised on the belief that, 20 because he “properly raised [this claim] in a PCR proceeding,” it is also properly preserved 21 for habeas review. (Doc. 22 at 9-10.) This ignores the R&R’s conclusion that, “[t]o the 22 extent Petitioner did fairly present [this claim] in his PCR proceedings,” it was 23 “procedurally barred on the basis of Arizona’s waiver bar” because Petitioner failed to raise 24 it during his direct appeal. (Doc. 12 at 11.) 25 Next, as for assignment of error No. 2, Respondents correctly note that “Petitioner 26 does not actually contest the R&R’s conclusion that it was without merit” and limits his 27 objections to the issue of procedural default. (Doc. 23 at 3.) 28 Finally, as for assignment of error No. 4, Respondents correctly note that 1 || Petitioner’s objections lack merit because he “does not address the R&R’s conclusion that || the claim is procedurally defaulted” and because “to the extent Petitioner is relying on an || alleged violation of State law, it does not entitle him to habeas relief.” (/d. at 4.) 4 Accordingly, IT IS ORDERED that: 5 (1) Petitioner’s objections to the R&R (Doc. 22) are overruled. 6 (2) The R&R (Doc. 12) is accepted. 7 (3) The Petition (Doc. 1) is denied and dismissed with prejudice. 8 (4) A Certificate of Appealability and leave to proceed in forma pauperis on 9|| appeal are denied because dismissal of the Petition is justified by a plain procedural bar || and jurists of reason would not find the procedural ruling debatable and because Petitioner 11 || has not made a substantial showing of the denial of a constitutional right. 12 (5) The Clerk shall enter judgment accordingly and terminate this action. 13 Dated this 9th day of December, 2021. 14 15 fm ee” 16 f t _o—— Dominic W. Lanza 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28 -8-