Pearce v. Schriro et al

Filing 136

ORDER ADOPTING REPORT AND RECOMMENDATION, adopting the Report and Recommendation of the magistrate judge 120 ; denying Petitioner's Objections 130 ; Petitioner's First Amended Petition 15 is dismissed with prejudice; the Clerk shall ent er judgment for Respondents and terminate this case; denying as moot Petitioner's motion for status 135 ; a Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied because Petitioner has not made a substantial s howing of the denial of a constitutional right and because the dismissal of certain claims was justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable. Signed by Senior Judge Stephen M McNamee on 3/31/15. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Eric Brian Pearce,
Petitioner,

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v.

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Charles L. Ryan, et al.,

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Defendants.

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No. CV-06-2841-PHX-SMM (JR)

ORDER

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Pending before the Court is Petitioner’s First Amended Petition for Habeas Corpus.

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(Doc. 15.) The matter was referred to Magistrate Judge Jacqueline M. Rateau for a Report

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and Recommendation, who filed a Report and Recommendation with this Court

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recommending that Petitioner’s First Amended Petition be denied on its merits. (Doc. 120.)

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Petitioner then filed his objections to the Report and Recommendation, Respondents

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responded, and Petitioner submitted a reply. (Docs. 130-132.) After considering the Report

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and Recommendation, the arguments raised in Petitioner’s Objections and his reply, the

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Court will deny Petitioner’s First Amended Petition for Habeas Corpus.

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STANDARD OF REVIEW

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When reviewing a Magistrate Judge’s Report and Recommendation, this Court “shall

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make a de novo determination of those portions of the report . . . to which objection is made,”

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and “may accept, reject, or modify, in whole or in part, the findings or recommendations

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made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); see also Baxter v. Sullivan, 923

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F.2d 1391, 1394 (9th Cir. 1991) (citing Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452,

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454 (9th Cir. 1983)).
DISCUSSION1

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Magistrate Judge Rateau filed a thorough fifty page Report and Recommendation

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(“R&R”) recommending denial of habeas relief for Petitioner’s First Amended Petition for

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Habeas Corpus. (Doc. 120.) Petitioner filed eleven objections to the R&R. (Doc. 130.)

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Respondents responded to each objection and Petitioner replied in support. (Docs. 131, 132.)

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First, Petitioner raises several arguments regarding the R&R’s statement of the

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standard of review under the AEDPA, the standard of review regarding application of

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Arizona’s procedural default rules, the standard of review regarding cause and prejudice, and

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the standard of review regarding fundamental miscarriage of justice. The Court has reviewed

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the R&R’s statements of the standards of review objected to by Petitioner. The Court finds

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that the R&R’s statements of the standards of review is correct and overrules Petitioner’s

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objection number one.

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Moreover, to the extent that Petitioner’s objection is but a general objection, the Court

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is relieved of any obligation to review a general objection to the R & R. See Thomas v. Arn,

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474 U.S. 140, 149 (1985) (stating that no review at all is required for “any issue that is not

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the subject of an objection.”); United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir.

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2003) (same).

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Petitioner’s second objection to the R&R’s Blakely v. Washington, 542 U.S. 296

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(2004), analysis stating that “retroactivity is irrelevant,” is overruled because, as the R&R

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correctly determines, Blakely was decided over one year after Petitioner’s conviction had

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become final, and was determined under Teague v. Lane, 489 U.S. 288 (1989), not to apply

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retroactively.

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Petitioner’s third objection that none of his ineffective assistance of counsel (“IAC”)

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claims were waived or defaulted is overruled because the R&R properly found that Petitioner

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The factual and procedural history of this case is set forth in the Magistrate Judge’s
Report and Recommendation. (Doc. 120.)
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failed to exhaust all of his IAC claims in state court by failing to present them to the Arizona

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Court of Appeals.

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Petitioner’s fourth objection that proper exhaustion is shown on the record and

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therefore the R&R mistakenly conducted a cause and prejudice analysis and a fundamental

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miscarriage of justice analysis is overruled. The R&R properly found that Petitioner did not

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exhaust all of his claims in state court and properly considered cause and prejudice and

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fundamental miscarriage of justice arguments.

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Petitioner’s fifth objection regarding the R&R’s fundamental miscarriage of justice

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analysis is overruled. Under Schlup v. Delo, 513 U.S. 298, 321 (1995), an exception to

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procedural default is limited to habeas petitioners who can establish that new evidence shows

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that “a constitutional violation has probably resulted in the conviction of one who is actually

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innocent.” Here, Petitioner merely relitigates the evidence presented at trial. The R&R

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properly found that such arguments do not establish that a fundamental miscarriage of justice

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occurred.

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Petitioner’s sixth objection argues that the R&R improperly found that the

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requirements of Alcala v. Woodford, 334 F.3d 862 (9th Cir. 2003) (applying pre-AEDPA

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standards) were not met regarding his IAC claim that counsel failed to call beneficial

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witnesses at trial. This objection is overruled because the testimony identified by Petitioner

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of the two witnesses not called at trial, Michael Perrin and Steven Anchondo, would have

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supported the prosecution’s claim that Petitioner was the shooter by providing identification

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evidence, physical evidence of the handgun, and a motive. The R&R properly recommended

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that the state court’s ruling was not an unreasonable application of Strickland v. Washington,

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466 U.S. 668 (1984). (See R&R, Doc. 120 at 32-34.)

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Petitioner’s seventh objection argues that the R&R improperly analyzed Missouri v.

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Frye, 132 S.Ct. 1399 (2012), alleging that his counsel improperly failed to advise him of a

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plea offer. In Frye, the Court undertook the question of whether defense counsel had a duty

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to communicate the terms of a formal plea offer to his client on terms and conditions that

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may result in a lesser sentence, a conviction on lesser charges, or both. Id. The Court held
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that defense counsel has the duty to communicate formal offers from the prosecution to

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accept a plea on terms and conditions that may be favorable to the accused. Id. The Court

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overrules Petitioner’s objection because here there was no formal plea offer from the

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prosecution and the R&R properly found no Frye violation.

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Petitioner’s eighth objection argues that the R&R improperly found that counsel did

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not infringe his right to testify by failing to allow him to testify. The Court overrules this

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objection. The R&R considered the record, Petitioner’s proposed testimony, and determined

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that “the trial judge reasonably found that any error by trial counsel in advising [Petitioner]

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about his right to testify did not prejudice [Petitioner].” (Doc. 120 at 38.) The trial court

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noted that Petitioner’s testimony would not have affected the jury verdict because the

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evidence of guilt was so strong. (See id. at 36-38.)

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Petitioner’s ninth objection argues that the R&R improperly failed to consider the

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merits of his State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964), claim. The Court overrules

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this objection because the R&R properly found this claim procedurally defaulted due to

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Petitioner’s failure to exhaust this claim during state court proceedings.

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Petitioner’s tenth objection argues that the trial court gave an unconstitutionally vague

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jury instruction on premeditation, yet the R&R concluded that he had failed to satisfy the

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standard for habeas relief. Under the AEDPA, the standard for habeas relief is a state court’s

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unreasonable application of controlling U.S. Supreme Court precedent. Williams v. Taylor,

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529 U.S. 362, 399-400 (2001).The R&R properly determined that “[g]iven the lack of any

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clearly established federal authority to the contrary, the Court cannot conclude that the

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premeditation instruction given in [Petitioner’s] case was unconstitutional.” (Doc. 120 at 46.)

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The tenth objection is overruled.

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Petitioner’s final objection is also overruled.

The R&R properly found that

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Petitioner’s supplemental new evidence claim was untimely and procedurally defaulted.

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(Doc. 120 at 46-48.)

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CONCLUSION
Accordingly, on the basis of the foregoing,
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IT IS HEREBY ORDERED adopting the Report and Recommendation of the
magistrate judge. (Doc. 120.)

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IT IS FURTHER ORDERED denying Petitioner’s Objections.

(Doc. 130.)

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Petitioner’s First Amended Petition is DISMISSED WITH PREJUDICE. (Doc. 15.) The

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Clerk of Court shall enter judgment for Respondents and terminate this case.

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IT IS FURTHER ORDERED denying as moot Petitioner’s motion for status. (Doc.
135.)

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IT IS FURTHER ORDERED that a Certificate of Appealability and leave to

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proceed in forma pauperis on appeal are DENIED because Petitioner has not made a

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substantial showing of the denial of a constitutional right and because the dismissal of certain

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claims was justified by a plain procedural bar and jurists of reason would not find the

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procedural ruling debatable.

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DATED this 31st day of March, 2015.

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