McIntosh v. Richardson et al

Filing 13

ORDER that Magistrate Judge Mark E. Aspey's 10 R&R is accepted. Petitioner's 1 petition for writ of habeas corpus is denied. A certificate of appealability is denied because McIntosh has made no substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). The Clerk of Court is directed to terminate this action. Signed by Judge David G Campbell on 12/13/11. (ESL)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Samora McIntosh,
Petitioner,

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No. CV11-0826-PHX-DGC
ORDER

vs.
Shelton Richardson, et. al.,
Respondents.

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On October 17, 2007, Petitioner Samora McIntosh and four co-defendants, each

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representing himself, were tried on drug charges before a pro tem Superior Court judge.

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Doc. 8, Exh. B. McIntosh was found guilty of one count of possession of marijuana for

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sale and one count of possession of drug paraphernalia. Id., Exh. E. On December 4,

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2007, McIntosh was sentenced to the five year presumptive term of imprisonment on the

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first offense, and, after he refused to sign the terms of probation for the second offense,

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was sentenced to the one year presumptive term of imprisonment on that offense, to be

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served concurrently with the five year term. Id., Exh. F. McIntosh appealed, and the

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Arizona Court of Appeals affirmed his convictions and sentences. Id., Exhs. H & I. On

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October 27, 2009, the Arizona Supreme Court denied review. Id., Exh. K.

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On April 8, 2011, McIntosh filed a petition for writ of habeas corpus pursuant to

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the

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28 U.S.C. § 2254. Doc. 1. Respondents filed a limited answer to the petition (Doc. 8),

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and McIntosh did not file a reply. McIntosh asserts five bases for habeas relief: (1) he

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Antiterrorism

and

Effective

Death

Penalty

Act

of

1996

(AAEDPA@),

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did not knowingly and intelligently waive his Sixth Amendment right to counsel; (2) the

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trial court erred in sentencing him to imprisonment for possession of drug paraphernalia

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because Arizona law mandates a sentence of probation; (3) the trial court did not have

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jurisdiction over his criminal proceedings because the court commissioner did not have

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authority to issue search warrants or preside over criminal trials and the court

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commissioner did not have a loyalty oath on file; (4) there was insufficient evidence to

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support his conviction for possession of marijuana for sale, as he was merely present in

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the house where the marijuana was found; and (5) his due process rights were violated

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when the trial court erroneously instructed the jury that it could convict him on

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coconspirator liability. Doc. 1 at 7-12.

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United States Magistrate Judge Mark E. Aspey issued a Report and

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Recommendation (AR&R@) on October 14, 2011. Doc. 10. The R&R recommends that

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the Court deny McIntosh’s petition with prejudice because it is barred by the applicable

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statute of limitations and, in the alternative, because the state court appropriately denied

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the first three of McIntosh’s claims on the merits, and McIntosh did not exhaust claims

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four and five in the state courts and they are now procedurally foreclosed. Doc. 10 at 16.

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McIntosh filed objections to the R&R on November 21, 2011.1 For the reasons that

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follow, the Court will accept the R&R and deny McIntosh’s 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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Petitioner exceeded the 14 day deadline for objections (see Fed. R. Civ. P.
72(b)). The Court may consider late filing a waiver to review. United States v. ReynaTapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Because McIntosh is proceeding pro se,
however, the Court will excuse this delay.
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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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II.

Analysis.

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A.

Statute of Limitations.

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McIntosh makes no specific objections to the R&R’s finding that his claims are

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barred by the statute of limitations. Instead, by recounting the same facts that he asserted

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in his original petition, McIntosh argues that the statute of limitations does not bar his

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petition because his confinement in prison interfered with his ability to file the petition

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Compare Doc. 1 at 15 with Doc. 11 at 2-3. McIntosh does assert new facts regarding his

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hardship in accessing legal records – facts which this Court has discretion to consider.

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See United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000). The Court finds,

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however, that McIntosh has not shown how deprivation of specific legal materials made

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it impossible for him to file his petition on time. See, e.g., Ramirez v. Yates, 571 F.3d

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993, 997 (9th Cir. 2009); Chaffer v. Prosper, 592 F.3d 1046, 1048-49 (9th Cir. 2010).

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Even considering the new facts, the Court agrees with Judge Aspey that McIntosh has not

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met the high burden of showing “impossibility” of timely filing required to show that he

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is entitled to equitable tolling. See Doc. 10 at 6, 16.

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B.

Substantive Claims.

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Judge Aspey found that McIntosh is not entitled to federal habeas relief on his

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claim that he did not knowingly or intelligently waive his right to counsel because the

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Arizona Court of Appeals already rejected this claim on the merits and that court’s

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finding was not contrary to or an unreasonable application of federal law. Doc. 10 at 9.

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McIntosh reiterates the arguments that he made in his petition that he did not act

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voluntarily (compare Doc. 1 at 6 with Doc. 11 at 3), but fails to make specific objections

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to Judge Aspey’s finding. The Court accepts Judge Aspey’s finding on this claim for the

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reasons stated in the R&R. See Doc. 10 at 7-9.

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Judge Aspey found that McIntosh’s claim that the trial court erred in sentencing

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him to prison rather than probation on his possession of drug paraphernalia conviction

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did not state a violation of federal law that would entitle him to federal habeas relief.

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Doc. 10 at 10. McIntosh merely argues that he is entitled to relief because he was

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imprisoned unlawfully. Doc. 11 at 3. McIntosh makes no argument that Judge Aspey

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erred in his application of the law. The Court accepts Judge Aspey’s recommendation on

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this claim for the reasons stated in the R&R. See Doc. 10 at 10.

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Judge Aspey found that McIntosh is not entitled to federal habeas relief on his

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claim that the trial court commissioner lacked authority because the Arizona Court of

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Appeals found there was no factual basis for this claim and that court’s findings of fact

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and law are binding on this Court. Doc. 10 at 10. McIntosh presents part of the trial

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transcript and reargues his position that there is a “factual basis” for his claim, but he

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does not address the Court of Appeals’ finding. Doc. 11 at 4-6. Nor does he show why

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this Court is not bound by that finding. The Court accepts Judge Aspey’s finding on this

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claim for the reasons stated in the R&R. See Doc. 10 at 10.

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Judge Aspey found that McIntosh’s claim that the trial court lacked sufficient

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evidence to convict him of possession of marijuana for sale was procedurally defaulted

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because McIntosh did not raise it on direct appeal and had not shown cause for or

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prejudice resulting from his default. Doc. 10 at 11. McIntosh does not make any

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objection to this finding. The Court will accept Judge Aspey’s recommendation for the

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reasons stated in the R&R. See id.

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Judge Aspey found that McIntosh’s claim regarding erroneous jury instructions

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was also procedurally barred because McIntosh failed to exhaust this claim in state court

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and it is now procedurally foreclosed. Doc. 10 at 16. Judge Aspey also found that

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McIntosh had not shown cause for or prejudice resulting from his default, or that a

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fundamental miscarriage of justice would occur for failure to consider this claim. Id.

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McIntosh argues, nonsensically, that the trial court’s refusal to address his challenge to

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that court’s jurisdiction was the cause of his failure to raise this claim on appeal. Doc. 11

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at 7. McIntosh also argues that prejudice and a fundamental miscarriage of justice would

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result from dismissing this claim because the jury instruction permitted his conviction

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based on co-conspirator liability when he was not charged with conspiracy. Doc. 11 at 7.

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McIntosh also argues that the trial court’s erroneous jury instruction deprived that court

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of jurisdiction and that his claim for relief is timely because a challenge to jurisdiction

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can be raised at any time. Id. McIntosh’s arguments are unavailing. The Court agrees

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with Judge Aspey that McIntosh has not shown cause for his procedural default. The

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Court also agrees that McIntosh has failed to show that a fundamental miscarriage of

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justice would result from not considering the jury instruction claim. McIntosh has only

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alleged errors related to the application of state law, not federal law or the Constitution,

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and he has not alleged facts to show that he is factually innocent. See Murray v. Carrier,

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477 U.S. 478, 485-86 (1986); Thomas v. Goldsmith, 979 F.2d 746, 749 (9th Cir. 1992)

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(showing of factual innocence is necessary to trigger manifest injustice relief). The Court

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also finds that the authority McIntosh relies upon for his jurisdictional argument is

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inapplicable and does not resolve the issue of procedural default with respect to the jury

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instruction claim. See Doc. 11 at 7. Accordingly, the Court will accept Judge Aspey’s

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recommendation on this claim for reasons stated in the R&R. See Doc. 10 at 11-18.

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IT IS ORDERED:

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1.

Magistrate Judge Mark E. Aspey=s R&R (Doc. 10) is accepted.

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2.

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

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3.

A certificate of appealability is denied because McIntosh has made no

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substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2).

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4.

The Clerk of Court is directed to terminate this action.

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Dated this 13th day of December, 2011.

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