Gwen 332970 v. Shinn

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Gerald Vaughn Gwen, No. CV-22-08140-PCT-JAT 10 Petitioner, ORDER 11 v. 12 David Shinn, et al., 13 Respondents. 14 15 Pending before the Court is Petitioner’s Petition for Writ of Habeas Corpus 16 (“Petition”). The Magistrate Judge to whom this case was referred issued a Report and 17 Recommendation (“R & R”) recommending that this Court deny the Petition. (Doc. 61). 18 Petitioner filed objections to the R & R. (Doc. 67). Respondent filed a Reply to the 19 Objections. (Doc. 68). The R & R further recommended that this Court deny a certificate 20 of appealability. (Doc. 61). 21 I. Review of R & R 22 This Court “may accept, reject, or modify, in whole or in part, the findings or 23 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that 24 the district judge must review the magistrate judge’s findings and recommendations de 25 novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 26 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263 F.Supp.2d 27 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that de novo 28 review of factual and legal issues is required if objections are made, ‘but not otherwise.’”); 1 Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 1027, 1032 (9th 2 Cir. 2009) (the district court “must review de novo the portions of the [Magistrate Judge’s] 3 recommendations to which the parties object.”). District courts are not required to conduct 4 “any review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 5 474 U.S. 140, 149 (1985) (emphasis added); see also 28 U.S.C. § 636(b)(1) (“the court 6 shall make a de novo determination of those portions of the [report and recommendation] 7 to which objection is made.”). 8 II. Review of the Petition 9 The Petition in this case was filed under 28 U.S.C. § 2254 because Petitioner is 10 incarcerated based on a state conviction. With respect to any claims that Petitioner 11 exhausted before the state courts, under 28 U.S.C. §§ 2254(d)(1) and (2) this Court must 12 deny the Petition on those claims unless “a state court decision is contrary to, or involved 13 an unreasonable application of, clearly established Federal law” or was based on an 14 unreasonable determination of the facts. See Lockyer v. Andrade, 538 U.S. 63, 71 (2003). 15 To determine whether a state court ruling was “contrary to” or involved an “unreasonable application” of federal law, courts look exclusively to the 16 holdings of the Supreme Court that existed at the time of the state court’s 17 decision. Greene v. Fisher, 565 U.S. 34, 38 (2011). A state court’s decision is “contrary to” federal law if it applies a rule of law “that contradicts the 18 governing law set forth in [Supreme Court] cases or if it confronts a set of 19 facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] 20 precedent.” Mitchell v. Esparza, 540 U.S. 12, 14 (2003) (citations omitted). 21 A state court decision is an “unreasonable application of” federal law if the court identifies the correct legal rule, but unreasonably applies that rule to 22 the facts of a particular case. Brown v. Payton, 544 U.S. 133, 141 (2005). “A 23 state court’s determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree on the correctness of the 24 state court’s decision.’” Richter, 562 U.S. at 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). 25 26 Amaral v. Ryan, No. CV16-00594-PHX-JAT-BSB, 2018 WL 6931889, at *5 (D. Ariz. 27 June 26, 2018) (Report and Recommendation accepted 2018 WL 6695951, at *1 (D. Ariz. 28 Dec. 20, 2018)). 1 An unreasonable application of law must be “objectively unreasonable, not merely 2 wrong; even clear error will not suffice.” White v. Woodall, 572 U.S. 415, 419 (2014) 3 (internal quotation marks and citation omitted). A petitioner must show that the State 4 court’s ruling was “so lacking in justification that there was an error well understood and 5 comprehended in existing law beyond any possibility for fairminded disagreement.” Id. 6 at 419–20 (citation omitted). 7 Finally, “[a]n application for a writ of habeas corpus may be denied on the merits, 8 notwithstanding the failure of the applicant to exhaust the remedies available in the courts 9 of the State.” 28 U.S.C. § 2254(b)(2). 10 III. Factual and Procedural Background 11 The R & R recounted the factual and procedural background of Petitioner’s 12 conviction in state court at pages 1–3. Neither party appears to object to this recounting 13 and the Court hereby accepts it. In short summary, Petitioner—who represented himself 14 pro se—was convicted by jury trial for fraudulent schemes, car theft with intent to deprive, 15 and car theft by conversion. (Doc. 61 at 1–2). In 2021, Petitioner was sentenced to 16 concurrent1 prison terms, the longest of which is 10 years. (Id. at 2). 17 IV. Claims in the Petition 18 The R & R broke the Petition down into thirty-four separate claims. They are as follows: 19 1. Malicious prosecution in violation of the fifth and fourteenth amendments where: (a) the prosecution was undertaken in bad faith; (b) the indictment 20 was defective; (c) the prosecutor knew or should have known the 21 evidence before the grand jury was insufficient to show probable cause; (d) the indictment contained duplicitous charges; (e) the indictment failed 22 to provide adequate notice, was misleading and/or failed to sufficiently 23 state the conduct for which he was charged; and (f) insufficient evidence supported his conviction. 24 2. A denial of due process in the trial court’s evidentiary rulings because: 25 (a) the court and prosecutor failed to conduct “evidentiary procedures” on admissibility; (b) inadmissible evidence was admitted; (c) a copy of 26 the car rental agreement was admitted; and (d) police failed to disclose 27 the original rental agreement in violation of Brady v. Maryland, 373 U.S. 28 1 Petitioner was also convicted of other charges in Arizona state court, leading to concurrent prison terms. 1 83 (1963). 3. His right to a speedy trial was violated . . . . 2 4. He was denied his Eighth Amendment right to bail. 3 5. He was denied due process because he did not receive a preliminary hearing. 4 6. He was denied a Fourteenth Amendment right “to be free from unfair 5 prejudice” where: (a) other-act evidence was improperly admitted during trial; (b) the “prosecutor’s conduct deprived [Gwen] of his right to a jury 6 verdict of guilt beyond a reasonable doubt”; (c) there was instructional 7 error regarding other-act evidence. 7. He was denied his Sixth Amendment confrontation right . . . . 8 8. He was denied due process and fundamental fairness because: 9 (a) the State failed to timely disclose all evidence and withheld evidence in violation of Brady; 10 (b) the trial court abused its discretion in (i) denying “access to 11 evidentiary procedures”; (ii) denying “important pretrial motions”; (iii) suspended the right to habeas corpus; (iv) interfered with a change of 12 judge; and (v) interfered with “the orderly delivery of U.S. mail”; 13 (c) the appellate courts’ rulings denied him fundamental fairness when it: (i) denied special action jurisdiction; (ii) did not “adequately adjudicate 14 all claims presented on direct appeal”; and (iii) the Arizona Supreme Court denied review of his petition for review without stating why; 15 (d) he is actually innocent; and 16 (e) the state court process was inadequate because it allegedly did not have a sufficient process to challenge the admissibility of evidence or 17 correct erroneous legal rulings, and because appellate procedures did not 18 entitle Gwen to an evidentiary hearing. 9. His Eighth Amendment right to be free from cruel and unusual 19 punishment were [sic] violated when: (a) the trial court failed to decide 20 sentencing issues; (b) the PCR court failed to adjudicate his constitutional claims; (c) his sentences violate double jeopardy because the indictment 21 was duplicitous. 22 10. He was denied his right to a fair trial where: (a) the prosecutor called Gwen’s expert to testify because the prosecutor “knew there exists no 23 expert testimony to rebut”; and (b) the trial court abused its discretion 24 allowing the expert witness to be called. 25 (Doc. 61 at 5–6). V. Petitioner’s Objections 26 27 A. General or Global Objection 28 As a preliminary matter, Petitioner states that he “cannot address or object to every 1 [unreadable] in report . . . and his objection not address [sic] are not an expressed waiver 2 as to any [unreadable] issue raised in R&R.” (Doc. 67 at 6). The Court construes this 3 statement as a global objection by Petitioner. 4 Respondents correctly note that general, global objections do not trigger de novo 5 review of the entire case. (Doc. 68 at 1–2). Warling v. Ryan, 2013 WL 5276367, *2 (D. 6 Ariz. Sept. 19, 2013)); Howard v. Sec'y of HHS, 932 F.2d 505, 509 (6th Cir. 1991); Haley 7 v. Stewart, 2006 WL 1980649, * 2 (D. Ariz. July 11, 2006)); accord Martin v. Ryan, CV- 8 13-00381-PHX-ROS, 2014 WL 5432133, *2 (D. Ariz. October 24, 2014) (“... when a 9 petitioner raises a general objection to an R & R, rather than specific objections, the Court 10 is relieved of any obligation to review it.”) (collecting cases). Thus, the Court will not 11 review this general objection. See Warling, 2013 WL 5276367, at 2 (“the Court has no 12 obligation to review Petitioner’s general objections to the R & R”) (citing Thomas v. Arn, 13 474 U.S. 140, 149 (1985)). 14 B. Ground 1 15 Petitioner first states in Ground 1 that “he is privileged from Respondents[’] unfair 16 conversion of facts in support of claim of malicious prosecution into separate independent 17 claims for relief, that by themselves are non-cognizable.” Further, he states that “the report 18 misrepresents or misunderstands constitutional requirement to establish malicious 19 prosecution” and “the report misquoted Heck v. Humphrey.” 20 First, Petitioner appears to misunderstand the R & R. The R & R states “[t]he 21 undersigned construes Ground 1 as not only asserting a multipart claim of malicious 22 prosecution based on the facts in the various subparts, but (like Respondents) to also assert 23 each subpart as underlying direct violations.” (Doc. 61 at 24). Thus, the Magistrate Judge 24 analyzed Petitioner’s malicious prosecution claim as a single claim supported by 25 Petitioner’s version of the facts and then also interpreted the supporting facts to be direct 26 habeas claims. 27 It is not clear that malicious prosecution claims are cognizable on federal habeas 28 review. See Jaime v. Almager, No. SACV 08-cv-0093-JVS (JTL), 2009 WL 2390853, 1 at *15 (C.D. Cal. Aug. 3, 2009) (“[T]he Supreme Court has never found that a malicious 2 prosecution claim is cognizable on habeas review.”) Even assuming this claim is 3 cognizable, an essential element of malicious prosecution is “termination of the prior 4 criminal proceeding in favor of the accused.” Heck v. Humphrey, 512 U.S. 477, 484 (1004). 5 Petitioner argues that because Heck was a § 1983 claim, the standard for malicious 6 prosecution iterated by the Supreme Court in that case is not applicable here. However, the 7 Supreme Court took the standard used from common law. The Court has not found, and 8 Petitioner has not identified, a malicious prosecution claim—in habeas proceedings or 9 otherwise—that does not require termination of the prior criminal proceeding in favor of 10 the accused. Petitioner did not allege a primary element of a malicious prosecution claim— 11 termination of the prior criminal proceeding in favor of the accused—nor does he in his 12 objections. Thus, the Court accepts and adopts the R & R’s conclusion that Petitioner failed 13 to adequately state a claim of malicious prosecution. Relief on Ground 1 is denied. 14 C. Ground 2 15 Petitioner’s next “objects to [the] R & R on ground [sic] it unfairly modify [sic] the 16 claim for relief, or misrepresents material facts.” Upon review of the R & R as well as the 17 Petition, the Court agrees with the way in which the R & R split up Petitioner’s Ground 2 18 claims. There is no evidence of misrepresentation of material facts or a modification of the 19 claim for relief, beyond a recharacterization of the claim to a cognizable legal theory. Even 20 so, as stated in the R & R, Petitioner did not cite to any relevant federal authority to support 21 Ground 2(a) that he was deprived of due process. As stated in the R & R, Petitioner cited 22 to State v. Hocker, 556 P.2d 784, 789–90 (Ariz. 1976), to support the notion that he should 23 have had his legal objections addressed outside the hearing of the jury, but that case does 24 not address due process concerns or a federal basis for mandating evidentiary hearings on 25 admissibility issues. Between his reliance on Hocker and Arizona Rule of Criminal 26 Procedure Rule 16.2 and his far departed general reliance on federal due process, the Court 27 finds Petitioner failed to present to the state court his federal due process claim in Ground 28 2(a) and adopts the R & R’s conclusion. Gray v. Netherland, 518 U.S. 152, 163 (1996) 1 (“We have also indicated that it is not enough to make a general appeal to a constitutional 2 guarantee as broad as due process to present the ‘substance’ of such a claim to a state 3 court.). 4 Regarding Grounds 2(b)/(c), the R & R found that Petitioner properly exhausted the 5 claim that the trial court improperly admitted computer-generated copies of Petitioner’s 6 rental agreement for the rental car, resulting in undue prejudice. (Doc. 61 at 68). Although 7 the trial court did not make an explicit ruling on Petitioner’s due process claim, the Court 8 agrees with the R & R that there is no reason to conclude that the claim was disposed of 9 other than on the merits. (Id.) Thus, it is subject to deferral review under 28 U.S.C. 10 § 2254(d). Without reiterating the entire factual record associated with this objection—as 11 done by the Magistrate Judge in the R & R—Petitioner fails to point out how he was unduly 12 prejudiced by admission of copies of the agreement. Indeed, Petitioner appears to have 13 agreed to such copies being used at trial and was permitted to show witnesses the original 14 copies to ensure adequate due process: 15 THE COURT: Okay. So that we don’t get confused tomorrow, can we simply not use Exhibit Number 8? 16 MR. ASAY: Yes, Your Honor. 17 THE COURT: Okay. Mr. Gwen, would you agree with that, that we’re not going to use Exhibit Number 8? 18 MR. GWEN: Yes, Your Honor. That’s agreeable to me. 19 * * * THE COURT: For now the Clerk’s going to hold on to these originals. I’m 20 not going to mark them in any way because they’re relatively small and I 21 don’t want to put a sticker on them because we don’t need to. We have copies of those. 22 As long as the parties agree that these copies are true and accurate copies of 23 the originals, then this is what we can use throughout the trial. But again, Mr. Gwen, if you want to -- want the original to be shown to a witness or 24 something like that, that’s fine. We can do that. Okay? Everybody satisfied with that? 25 MR. GWEN: Yes, Your Honor. 26 (Exh. BB, RT 1/5/21 at 23–26). Upon de novo review, the Court is not persuaded 27 that any error was committed, much less a trial error of federal law that had “substantial 28 and injurious effect or influence in determining the jury’s verdict.” O’Neal v. McAninch, 1 513 U.S. 432, 436 (1995). Accordingly, the Court adopts the R & R’s conclusion and 2 analysis as to Ground 2(b)/(c). Relief on Ground 2 is denied. 3 D. Ground 3 4 In his third objection, Petitioner “objects to R & R for Ground [3] (speedy trial 5 violation) on ground its procedural ruling violates due process and equal protection, or is 6 inconsistent or contrary to relevant decisions of Supreme Court [sic].” (Doc. 67 at 9). 7 Petitioner argues that the Magistrate Judge did not have authority under 28 U.S.C. § 636 8 to order supplemental briefing and this Court erred in its application of Federal Rule of 9 Civil Procedure 15.1. (Id.) First, there is no Federal Rule of Civil Procedure 15.1. The 10 Court assumes Petitioner intended to object under Rule 15(a)(1) or (2) because he mentions 11 that Respondents did not petition to amend their answer. This objection has already been 12 addressed by this Court in the Court’s July 10, 2023, Order at Document 36. As stated in 13 the Court’s previous Order, the Magistrate Judge was well within his discretion in ordering 14 supplemental briefing to address the speedy trial issue. This objection does not challenge 15 a conclusion or the analysis of the Magistrate Judge in the R & R, and the Court has already 16 addressed and overruled this objection. Thus, it will not be further considered here. 17 Addressing Petitioner’s speedy trial claim, a “showing of prejudice is required to 18 establish a violation of the Sixth Amendment Speedy Trial Clause.” Reed v. Farley, 512 19 U.S. 339, 353 (1994). Petitioner allegedly suffered anxiety and stress2 as a result of the trial 20 delay. However, he failed to present any evidence of such stress and anxiety to the Arizona 21 Court of Appeals. The Court finds that Ground 3 lacks merit and adopts the R & R’s 22 conclusion. Relief on Ground 3 is denied. 23 E. Ground 4 24 Fourth, Petitioner “objects to section (3) bail claim on ground report applies an 25 incorrect legal theory or was contrary to [sic] relevant decision of U.S. Court of Appeal 26 [sic] or Supreme Court.” (Doc. 67 at 11). Pursuant to 28 U.S.C. § 2254(a), federal courts 27 2 Petitioner actually never asserts he suffered anxiety and stress. He simply states that he was prejudiced and then cites an Arizona case as holding that “anxiety and stress can be 28 factors in determining whether Defendant was prejudiced by trial delay.” (Doc. 35 at 8). This has been liberally construed as an assertion Petitioner suffered anxiety and stress. 1 may “entertain an application for a writ of habeas corpus” only on behalf of a person who 2 is “in custody pursuant to the judgment of a State court.” In order to have jurisdiction over 3 a habeas corpus petition a petitioner must be “under the conviction or sentence under attack 4 at the time his petition is filed.” Maleng v. Cook, 490 U.S. 488, 490-91 (1989). Petitioner’s 5 custody under the pretrial detention order—the custody at issue in the bail claim— 6 terminated upon his conviction. After that, Petitioner has been in custody only under the 7 conviction and sentence, and it was during his ongoing post-conviction custody that he 8 filed the instant petition. Thus, the Court has no jurisdiction over Petitioner’s claim 9 challenging his detention under the pretrial detention order. Relief on Ground 4 is denied. 10 F. Ground 5 11 Petitioner alleges in his fifth objection that the R & R summarizes his fifth ground 12 inaccurately. (Doc. 67 at 12). He states that he “did not assert right to have held [sic] a 13 preliminary hearing under federal law, but rather he was, by state law, denied a process 14 due that would have ultimately led to [sic] hearing.” Petitioner appears to misunderstand 15 the nature of habeas proceedings. As previously mentioned, “a federal court may grant 16 habeas relief when a state court decision ‘involved an unreasonable application of clearly 17 established Federal law, as determined by the Supreme Court of the United States’ or 18 ‘resulted in a decision that was based on an unreasonable determination of the facts.” 19 Saesee v. McDonald, 725 F.3d 1045, 1047–48 (9th Cir. 2013) (quoting 28 U.S.C. 20 § 2254(d)). Regardless of state law, Petitioner has no federal constitutional right to a 21 pretrial determination of probable cause by preliminary hearing (or by grand jury 22 indictment). Lem Woon v. State of Oregon, 229 U.S. 586, 590 (1913); Jeffries v. Blodgett, 23 5 F.3d 1180, 1188 (9th Cir. 1993). By Petitioner failing to offer any federal legal support 24 for his arguments, the Court must either deny relief with no analysis, or determine whether 25 there is any legal support for the factual theories presented. There is no due process 26 violation in the Court researching the claims to the best of its ability. As an additional point, 27 any state law defect or denial of due process in the denial of a preliminary hearing did not 28 result in Petitioner’s conviction or sentence, and thus does not state a cognizable habeas 1 claim. Relief on Ground 5 is denied. 2 G. Ground 6 3 Petitioner’s sixth objection relates to his sixth ground for relief in the Petition. 4 Petitioner states that he was “unfairly prejudiced from Respondents’ modification of his 5 claim by converting facts in support of claim into separate independent claims.” Thus, he 6 asserts, the R & R fails to address his claim. As before, the R & R refocuses Petitioner’s 7 claims in order to facilitate analysis. Upon the Court’s review, the R & R does not appear 8 to change Petitioner’s claims whatsoever besides giving them multipart labels. Petitioner 9 does not take issue with the Court’s analysis or conclusions beyond what appears to be a 10 generalized statement that the R & R does not address his claim. This type of objection is 11 insufficient to warrant de novo review because it is merely a repetition of Petitioner’s 12 previous argument. Nonetheless, upon de novo review of the Petition and the state court 13 record, the Court agrees with the Magistrate Judge’s conclusion in the R & R that Petitioner 14 did not fairly present any part—(a), (b), or (c)—of Ground 6 in state court. Relief on 15 Ground 6 is denied. 16 H. Ground 7 17 In his seventh objection, Petitioner “objects to section seven on ground [sic] 18 Magistrate [Judge] reasoning violated constitutional law or is opposite relevant Supreme 19 Court decision.” (Doc. 67 at 13). He goes on to say that the “state set expectation that 20 particular witness [sic] would be available at trial by its disclosure and supplemental 21 disclosure right up to the commencement of the trial” and the witness not being called was 22 a violation of his Sixth Amendment Right to Confrontation of the witnesses against him. 23 (Id.) 24 “The Confrontation Clause provides two types of protections for a criminal 25 defendant: the right physically to face those who testify against him, and the right to 26 conduct cross-examination.” Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987). Petitioner 27 does not allege that either of these protections were violated in his trial. He states that his 28 Sixth Amendment rights were violated by the state “setting an expectation” that particular 1 witnesses would be at trial but then not calling those witnesses. There were no witnesses 2 to confront because no witnesses testified. Thus, there was no Confrontation Clause 3 violation. This objection is overruled and relief on Ground 7 is denied. 4 I. Ground 8 5 Finally, Petitioner appears to make multiple objections in his eighth set of 6 objections. First, he “objects to the R & R on ground [sic] recommendation to bar relief is 7 based upon state law, state court record, or state procedures.” (Doc. 67 at 14). He argues 8 that he attached the writ and a rejection of the writ, and this amounted to proof that the 9 state violated the Arizona Suspension Clause. (Id.) The R & R correctly points to the 10 Arizona Suspension Clause which states, “[t]he privilege of the writ of habeas corpus shall 11 not be suspended by the authorities of the state.” Ariz. Rev. Stat., Const. Art 2 § 14. 12 Although Petitioner attached documentation showing the writ was denied, he offers 13 nothing to show that he was precluded from filing a state petition for writ of habeas corpus. 14 A denial of a habeas corpus petition does not amount to a suspension of the writ. Thus, 15 Petitioner’s objection on this ground is overruled. 16 Second, Petitioner alleges that “the R & R does not address ground eight on the 17 merit [sic].” Petitioner takes issue with the Magistrate Judge’s denial of his April 10, 2023, 18 motion for an evidentiary hearing. The Magistrate Judge issued an order on December 27, 19 2022, setting a deadline of January 20, 2023, for Petitioner to file a motion for an 20 evidentiary hearing. The Magistrate Judge denied Petitioner request for an evidentiary 21 hearing on April 10, 2023, because it was past the deadline. Petitioner now asserts that he 22 complied with the Court’s orders because a later order on September 1, 2023, stated that 23 he would have fourteen days from the service of Respondents’ notice identifying trial- 24 related transcripts to file a motion for an evidentiary hearing related to Ground 3 of the 25 Petition. (See Doc. 67 at 15). However, the order on September 1, 2023, related only to 26 Ground 3 of the Petition and Petitioner’s deadline to file a motion for an evidentiary hearing 27 related to all other aspects of the Petition was January 20, 2023. Petitioner also did not file 28 a motion for an evidentiary hearing after the September 1, 2023, order. Therefore, the 1 Magistrate Judge correctly denied Petitioner’s motion for an evidentiary hearing as 2 untimely. The Magistrate Judge did not err, and this objection is overruled. In light of the 3 foregoing, the Court adopts all of the R & R’s conclusions on Ground 8 and relief is denied. 4 J. Other Objections 5 In his objections, Petitioner also raises a few other issues over the course of his brief 6 outside the enumerated sections discussed above. (See Doc. 67 at 3–6). The Court will 7 address these in turn. 8 First, Petitioner “objects to section III (A) (sufficiency of record) on ground its 9 finding is contrary to clearly established federal law, or inconsistent with [sic] reports 10 statements.” (Id. at 3). Petitioner takes issue with the Magistrate Judge allowing 11 Respondents to supplement the record with transcripts related to Petitioner’s speedy trial 12 claim after it was determined he had exhausted this claim in state court. (See Doc. 30). 13 Petitioner believes Respondents’ answer to be procedurally defaulted and thus he should 14 be granted relief as a matter of law. However, Petitioner does not point to any federal law 15 that suggests proceeding by default would be warranted as a result of improper or 16 insufficient arguments or unprovided records. As stated in the R & R, Federal Rule of Civil 17 Procedure 55(a), entry of default, and proceeding by judgment by default is possible. 18 However, default judgment is an extreme sanction in any case and “default judgments are 19 disfavored in habeas corpus cases.” Blietner vs. Wellborne, 15 F.3d 652 (7th Cir. 1994); 20 see also Gordon v. Duran, 895 F.2d 610, 612 (9th Cir. 1990) (“The failure to respond to 21 claims raised in a petition for habeas corpus does not entitle the petitioner to a default 22 judgment.”) Failure by Respondents to provide the necessary transcripts for analysis of the 23 speedy trial claim—a failure that was remedied—does not rise to the level necessary for 24 the sanction of default against Respondents. Plaintiff’s objection is overruled. 25 Second, Petitioner “objects to section (c) on ground [sic] magistrate [judge] 26 incorrectly interprets or its use of Fed. R. Civ. P. 8(d)(3) is a misapplication of law and 27 contrary to relevant decision of United States Court of Appeals.” (Doc. 67 at 3–4). 28 Petitioner asserts, without any authority, that the Magistrate Judge contradicts himself by 1 applying the Federal Rules of Civil Procedure in one instance but not for the purposes of 2 default judgment. As stated by the Magistrate Judge, Federal Rules of Civil Procedure do 3 not apply wholesale to habeas proceedings and “may be applied, when appropriate.” Rules 4 Governing § 2254 Cases, Rule 12. The Court does not find that the Magistrate Judge 5 abused his discretion by applying Rule 8 in this context. There is nothing to suggest that 6 Rule 8 only applies to § 1983 cases—as argued by Petitioner—and the language of the rule 7 is clear. Petitioner’s case law, Russell v. Rolfs, 893 F.2d 1033, 1038 (9th Cir. 1990), 8 concerns judicial estoppel due to relying on a defense on appeal that was inconsistent with 9 the trial court defense upon which dismissal had been obtained. Id. There is no similar 10 judgment on Respondents’ defenses here that makes this case similar to Russell. 11 Third, Petitioner’s argument concerning the definition of custody is moot because 12 the Court has already found that Petitioner was not “under the conviction or sentence under 13 attack at the time his petition [was] filed,” Maleng v. Cook, 490 U.S. 488, 490-91 (1989), 14 for his denial of bail claim. 15 Fourth, Petitioner “objects to section four (PCR or collateral proceeding) on ground 16 that ‘PCR proceedings in state courts are not cognizable because it is based on state law’ 17 is incorrect.” (Doc. 67 at 5). Petitioner misquotes the R & R. The R & R specifically states 18 that the above quote is the argument of Respondents, not the Magistrate Judge’s 19 conclusion. (Doc. 61 at 19–20). Petitioner is correct insofar that the Supreme Court has 20 decided that a state court might apply its own rules in a manner inconsistent with its own 21 case law and thus a federal court would not be barred from review. See Cruz v. Arizona, 22 598 U.S. 17, 27–28 (2023). However, Petitioner does not assert any analogous inconsistent 23 application of state law like the Supreme Court found in Cruz. He seems to simply state 24 that the PCR court erred in not reversing Petitioner’s conviction or imposed sentence. If he 25 is to obtain relief, he must show constitutional error. This objection is overruled. 26 Finally, Petitioner argues that the R & R misrepresents the federal standard for 27 determining cognizable or non-cognizable claims. He states that the standard for 28 determining cognizable versus non-cognizable claims can be found in Swarthout v. Cooke, 1 562 U.S. 216, 219 (2011). That case states that “[t]he habeas statute unambiguously 2 provides that a federal court may issue a writ of habeas corpus to a state prisoner ‘only on 3 the ground that he is in custody in violation of the Constitution or the laws or treaties of 4 the United States.’” Id. (quoting 28 U.S.C. § 2254 (a)). This is the standard that was used 5 by the Magistrate Judge in the R & R. (See Doc. 61 at 14). It is unclear as to what alternative 6 standard Petitioner believes the Magistrate Judge used. This objection is overruled. 7 Petitioner does not appear to object to the R & R’s other conclusions regarding 8 Ground 9 or Ground 10. Thus, the Court adopts the R & R’s recommendation as to those 9 Grounds and denies relief on both Grounds. 10 VI. Certificate of Appealability 11 Although he did not file a separate motion seeking a certificate of appealability 12 (“COA”), Petitioner seems to seek a COA asking the Court of Appeals to direct this Court 13 to hold the evidentiary hearing that was ruled as procedurally barred because Petitioner 14 filed his request too late. 15 For Petitioner to appeal, a court must issue a COA. 28 U.S.C. § 2253(c); Slack v. 16 McDaniel, 529 U.S. 473, 481-82 (2000); Valerio v. Crawford, 306 F.3d 742, 763–64 (9th 17 Cir. 2002) (en banc), cert. denied 2003 U.S. LEXIS 3190, 2003 WL 1903852 (2003). The 18 COA must specify which issues are certified for appeal. Id. 19 A judge may issue a COA “only if the applicant has made a substantial showing of 20 the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has 21 rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) 22 is straightforward: The petitioner must demonstrate that reasonable jurists would find the 23 district court’s assessment of the constitutional claims debatable or wrong.” Slack, 529 U.S. 24 at 483–84. “When the district court denies a habeas petition on procedural grounds without 25 reaching the prisoner’s underlying constitutional claim, a COA should issue when the 26 prisoner shows, at least, that jurists of reason would find it debatable whether the petition 27 states a valid claim of the denial of a constitutional right and that jurists of reason would 28 find it debatable whether the district court was correct in its procedural ruling.” Id. at 484. 1 Here, the Court finds jurists of reason would not find the Court’s procedural rulings 2|| debatable. Further, as to the claims on which the Court reached the merits, jurists of reason 3 || would not find this Court’s assessment of the constitutional claims debatable. Therefore, a certificate of appealability will not be granted. 5|| VIL. Conclusion 6 Based on the foregoing, 7 IT IS ORDERED that the Report and Recommendation (Doc. 61) is accepted and 8 || adopted; the objections (Doc. 67) are overruled. The Petition is denied and dismissed with || prejudice and the Clerk of the Court shall enter judgment accordingly. 10 IT IS FURTHER ORDERED that Petitioner’s request for a certificate of appealability is denied. 12 Dated this 22nd day of August, 2024. 13 14 A 15 James A. Teilborg 16 Senior United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 -15-