McDowell v. Richardson et al

Filing 25

ORDER granting 17 Petitioner's Motion for Reconsideration. Magistrate Judge Mark E. Aspey's R&R (Doc. 14) is accepted. Petitioner's petition for writ of habeas corpus (Doc. 1) is denied. The Clerk is directed to terminate this action. Signed by Judge David G Campbell on 2/7/12.(LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Theodore Cush McDowell,
Plaintiff,

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No. CV-11-0716-PHX-DGC
ORDER

vs.
Shelton Richardson,
Defendant.

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Petitioner Theodore Cush McDowell filed a motion for reconsideration of the

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Court’s order of October 31, 2011 (Doc. 15) accepting Magistrate Judge Mark A.

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Aspey’s Report and Recommendation (“R&R”) and denying Petitioner’s petition for a

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writ of habeas corpus. Doc. 17. The Court noted in that order that Petitioner had filed no

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objections to the R&R and accepted without review Judge Aspey’s recommendation to

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deny the petition. Doc. 15 at 1. Petitioner has provided documentation showing to the

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Court’s satisfaction that he filed objections to the R&R on October 6, 2011.

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Doc. 17.

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Petitioner’s objections to the R&R.

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I.

See

The Court will grant Petitioner’s motion for reconsideration and review

Background.

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On October 17, 2007, Petitioner was tried with four co-defendants before a pro

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tem Superior Court Judge and found guilty of one count of possession of marijuana for

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sale and one count of possession of drug paraphernalia. See R&R, Doc. 14 at 1-2. The

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trial court sentenced Petitioner to the five year presumptive term on the possession for

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sale offense and, after he refused to sign terms and conditions of probation on the drug

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paraphernalia offense, sentenced him to the presumptive one year term on that offense, to

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be served concurrently with the possession for sale offense. Id. at 2. Petitioner appealed

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his convictions and sentences, asserting that (1) he did not knowingly and intelligently

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waive his right to trial counsel; (2) the trial court erred by sentencing Petitioner to a term

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of imprisonment for possession of paraphernalia because Arizona statutes mandated a

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sentence of probation; (3) the trial court erred by not establishing it had jurisdiction over

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Petitioner’s case because the court commissioners did not have authority to issue search

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warrants or preside over criminal trials and also failed to have loyalty oaths on file with

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the Arizona Secretary of State. Id. at 2-3. On June 4, 2009, the Arizona Court of

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Appeals denied Petitioner’s claims on the merits, and on October 27, 2009, the Arizona

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Supreme Court denied review. Id. at 3.

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On April 11, 2011, Petitioner filed a petition for federal habeas relief. Doc. 1.

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Petitioner raised the same three grounds he raised in state court, and he raised as a fourth

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ground that the trial court committed structural or fundamental error when it erroneously

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instructed the jury that it could convict him on coconspirator liability. Doc. 1 at 6-9.

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Petitioner also argued that his petition, though untimely, was not barred by the one year

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statute of limitations because at the time he was booked into prison he was unable to

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bring his legal papers or court transcripts with him. Id. at 14.

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Judge Aspey recommended in the R&R that the Court deny the petition with

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prejudice because it is barred by the applicable statute of limitations and, in the

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alternative, because each of Petitioner’s claims fails on the merits. Doc. 14 at 18. For the

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reasons that follow, the Court will accept the R&R and deny the petition.

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I.

Standard of Review.

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A party may file specific written objections to the R&R’s proposed findings and

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recommendations. The Court must undertake de novo review of those portions of the

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R&R to which specific objections are made. The Court may accept, reject, or modify, in

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whole or in part, the findings or recommendations made by the Magistrate Judge. Fed. R.

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Civ. P. 72(b); 28 U.S.C. § 636(b)(1).
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III.

Analysis.

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Petitioner has made no specific objections to the R&R’s findings of fact and law.

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Though labeled “Objections to Report and Recommendation,” Petitioner’s objections

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never refer substantively to the R&R at all. Instead, Petitioner makes the same arguments

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for equitable tolling of the statute of limitations that he made in his original petition and

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reply. Compare Doc. 1 at 11 and Doc. 13 at 2-4 with Doc. 17 at 5-6. Similarly, for each

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of Petitioner’s substantive claims, Petitioner’s objections merely incorporate – with some

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added details for claims one and three – the same arguments he made in his original

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petition and reply. Compare Docs. 1 at 6-9 and Doc. 12 at 4-6 with Doc. 15 at 6-10.

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Even considering the added detail Petitioner adds from the pre-trial transcript with regard

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to his mental state when he waived his right to counsel (see Doc. 17 at 3-4), the Court

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finds that Petitioner is not entitled to relief because Judge Aspey determined that the state

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Court of Appeals had already conducted a “thorough and well-reasoned review” of this

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claim, including the facts of the case and relevant law, and that the state court’s decision

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to deny relief was “was not clearly contrary to nor an unreasonable application of federal

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law.” Doc. 14 at 8-11. The Court agrees with this conclusion. Similarly, Petitioner’s

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added detail with regard to his claim that the trial court had not established its jurisdiction

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is unavailing because, as stated in the R&R, the Court of Appeals found that Petitioner

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had conceded he was incorrect with regard to whether the named commissioners had

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correct documentation on file to exercise jurisdiction, and that court’s findings of fact –

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unless shown to be incorrect by clear and convincing evidence – are binding on this

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Court. Id. at 9, 12. Judge Aspey has already addressed all of the remaining issues raised

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in the petition. Merely reasserting the grounds of the petition as an objection provides

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this Court with no guidance as to what portions of the R&R Petitioner considers to be

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incorrect.

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The Court will deem Petitioner's mere recitation of his earlier arguments

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ineffective. This ruling comports with the clear language of Rule 72(b) that a district

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judge “shall make a de novo determination . . . of any portion of the magistrate judge's
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disposition to which specific written objection has been made[.]” Fed.R.Civ.P. 72(b)(2)

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(emphasis added); see Sullivan v. Schriro, No. CV-04-1517, 2006 WL 1516005 (D. Ariz.

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May 30, 2006). The Court is relieved of any obligation to review a general objection to

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the R&R. See Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985)

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(stating that no review at all is required for “any issue that is not the subject of an

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objection.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.2003) (same).

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IT IS ORDERED:

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1.

Petitioner’s motion for reconsideration is granted.

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2.

Magistrate Judge Mark E. Aspey’s R&R (Doc. 14) is accepted.

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3.

Petitioner’s petition for writ of habeas corpus (Doc. 1) is denied.

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4.

The Clerk of Court is directed to terminate this action.

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Dated this 7th day of February, 2012.

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