Montgomery v. Jacobs et al

Filing 23

ORDER that U.S. Magistrate Judge Logan's 21 Report and Recommendation is ADOPTED; the 1 Petition for Writ of Habeas Corpus is DENIED; Plaintiff's 18 Motion for Discovery is DENIED; a Certificate of Appealability and leave to proceed in forma pauperis on appeal is DENIED; and the Clerk of Court shall enter judgment in accordance with this Order DISMISSING this petition WITH PREJUDICE. Signed by Senior Judge Robert C Broomfield on 7/27/2012.(LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Donald A. Montgomery,

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Petitioner,
vs.
Deputy Warden Anna Jacobs,
et al.,

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Respondents.
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No. CIV 11-01467-PHX-RCB(SPL)
O R D E R

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Pending before this court is a Petition for Writ of Habeas

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Corpus relief brought pursuant to 28 U.S.C. § 2254 filed by

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petitioner pro se Donald A. Montgomery (Doc. 1).

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seeking a “remand” to Arizona state court for re-sentencing

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without taking into account any prior convictions.

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Pet. (Doc. 1) at 12.

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discovery (Doc. 18), filed on April 19, 2012, while the petition

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was pending before Magistrate Judge Steven P. Logan.

Petitioner is

See, e.g.,

Also pending is petitioner’s motion for

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In his Report and Recommendation (“R & R”) filed June 27,

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2012, the Magistrate Judge recommends: (1) denying the petition

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with prejudice; (2) denying the discovery motion; (3) denying

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the

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leave to proceed in forma pauperis on appeal.

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at 9:10-16.

On July 6, 2012, petitioner timely filed objections

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(Doc. 22).

Respondents did not file any objections.

Certificate of Appealability; and (4) denying petitioner
R & R (Doc. 21)

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In accordance with 28 U.S.C. § 636(b)(1), when reviewing a

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R & R, this court “may accept, reject or modify, in whole or in

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part, the findings or recommendations made by the [M]agistrate.”

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28 U.S.C. § 636(b)(1).

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district judge must review the magistrate judge’s findings and

That statute “makes it clear that the

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recommendations

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otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121

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(9 th Cir. 2003) (en banc) (emphasis in original).

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U.S.C. § 636(b)(1)(C) requires, this court has made

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determination of those portions of the report . . . to which”

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petitioner objected.

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conducted such a review, for the reasons set forth below, the

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court adopts the Report and Recommendation in its entirety.

de

novo

if

objection

is

made,

but

not

Thus, as 28
“a de novo

See 28 U.S.C. § 636(b)(1)(C).

Having

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Background

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The background as recited in the R & R is uncontested.

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such, the court incorporates that background by reference and

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adopts the same as if fully set forth herein.

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As

Discussion

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When the Magistrate Judge issued the R & R, petitioner’s

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petition for post-conviction relief as to his re-sentencing was

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pending before the Arizona Court of Appeals, where it remains

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pending as July 27, 2012, the date of the filing and entry of

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this order.

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11-0051

PRPC

http://apps.supremecourt.azgov/aacc/1ca - 1CA-CR
(last

visited

July
-2-

27,

2012).

Under

these

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circumstances, the Magistrate Judge correctly stated:

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federal court may deny an unexhausted petition on the merits

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only when it is perfectly clear that the applicant does not

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raise even a colorable claim.’” R & R (Doc. 21) at 4:18-19

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(quoting Cassett v. Stewart, 406 F.3d 614, 623-24 (9 th Cir.

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2005)).

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may only be granted when state court proceedings:

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in a decision that was contrary to, or involved an unreasonable

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application of, clearly established Federal law, as determined

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by the Supreme Court of the United States; or (2) resulted in

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a decision that was based on an unreasonable determination of

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the facts in light of the evidence presented in the State court

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proceeding.”

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U.S.C. § 2251(d)).

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Magistrate Judge further pointed out, that even an erroneous or

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incorrect application of clearly established federal law does

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not support a habeas grant, unless the state court’s application

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was “objectively unreasonable.”

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63, 75-76, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003).

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I.

“‘[A]

The R & R also accurately recites federal habeas relief

See

“(1) resulted

id. at 4:24-5:1 (citing, inter alia, 28
The Supreme Court has clarified, as the

Lockyer v. Andrade, 538 U.S.

Ineffective Assistance of Counsel

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Guided by these standards, the Magistrate Judge recommends

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denying petitioner’s first ground for habeas relief, wherein

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petitioner claims ineffective assistance of counsel in violation

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of

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assistance of counsel because at his sentencing hearing, and

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without

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convictions.

the

Sixth

his

Amendment.

consent,

his

Petitioner

trial

counsel

claims

ineffective

stipulated

to prior

In seeking habeas relief on this basis, petitioner

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does not take into account, as the Magistrate Judge soundly and

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accurately reasoned, that petitioner has

“already received the

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relief

his

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ineffective assistance at his first sentencing hearing.”

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R (Doc. 21) at 6:10-11.

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In

to

which

he

particular,

was

entitled

after

his

for

trial

sentencing,

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successful in seeking post-conviction relief.

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vacated

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sentencing hearing.

petitioner’s

original

sentence

counsel’s

petitioner

R &

was

The trial court

conducted

a

new

After the re-sentencing hearing, where

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there was no stipulation to prior convictions, petitioner was

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sentenced to the same sentence previously imposed, i.e., an

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aggravated term of 12 years on the class 4 felony and the

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presumptive term of 3.75 years on each of the remaining three

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offenses, all to be served concurrently.

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thereto (Doc. 1-2) at 59:9-15. 1

See Pet., exh. I

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Not only has petitioner already received the relief which

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he is seeking in the pending petition, but as the R & R also

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notes, in petitioner’s direct appeal after re-sentencing, the

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Arizona Court of Appeals held, based upon state law, that its

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review was limited to the re-sentencing proceedings.

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(Doc. 21) at 6:14-16 (citing Doc. 12 [Ans.], Exh. BBB (Doc. 12-

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3) at 6-8).

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arguments

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sentencing.

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¶ 11.

R & R

Therefore, that Court did not address petitioner’s

which

“focus[ed]

entirely

on

his

trial

and first

Ans. (Doc. 12), exh. BBB (Doc. 12-3) thereto at 7

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The Arizona Court of Appeals, Division One, affirmed petitioner’s
sentences. Ans., exh. BBB thereto (Doc. 12-3). No petition for review was
filed in the Arizona Supreme Court.

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The R & R recognizes that “the Court of Appeals relied on

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state

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resentencing proceedings[.]” Id. at 6:17-18; see also Ans., exh.

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BBB thereto (Doc. 12-3) at 7, ¶ 11.

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R & R correctly states that:

law

to

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conclude

that

its

review

was

limited

to

the

Significantly, however, the

Petitioner has presented nothing in
his reply to show that the Court
of Appeals decision is contrary
to or an unreasonable application of United
States Supreme Court law. . . . Nor has
Petitioner shown that the decision was
based on an unreasonable determination
of the facts given the evidence presented
in the state court.

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R & R (Doc. 21) at 6:18-21 (citation omitted).

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R & R found that “[b]ecause Petitioner has already been granted

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relief on the claim raised in ground one, and has failed to show

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that he is entitled to any further relief,” it recommend denial

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of habeas relief based upon ground one.

Concluding, the

Id. at 6:22-24.

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Petitioner

lists

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recommendation.

None

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apparent.

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Court

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assistance of counsel cliam’s [sic] on direct appeal[].”

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(Doc. 22) at 3:20-21.

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not shown that declining such a review somehow entitles him to

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habeas relief under 28 U.S.C. § 2254.

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not in any way expand upon the basis for this objection, which

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on its face has no validity.

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of

have

objections
merit,

as

to

will

this

first

readily

become

Initially, petitioner complains that the Arizona
Appeals

Second,
Amendment

four

“chose

[to]

review

[his]

ineffective
Obj.

As explained above though, petitioner has

petitioner

violations

not

are

objects
properly

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Moreover, petitioner does

stating

only

raise[d]

in

that
the

“Sixth
District

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Co[u]rt on habeas corpus.”

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The

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objection to the R & R.

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nowhere in the R & R does it indicate to the contrary, i.e.,

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that

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properly before this court.

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no

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claim.

court

fails

to

petitioner’s

merit

to

see

Id. at 3:21-24 (citation omitted).

how

this

statement

raises

a proper

This is especially so considering that

alleged

petitioner’s

Sixth

Amendment

violation

is

not

Rather, the R & R properly found

ineffective

assistance

of

counsel

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Third, petitioner objects because “the trial court applyed

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[sic] Strickland [v.] Washington, 466 U.S. at 688, 104 S.Ct.

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2052 ‘unreasonable.’” Id.

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expand in any way upon the basis for this objection, and its

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exact nature is unclear.

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re-sentencing was unreasonable.

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failed to met his burden in this regard as well.

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at

3:25-26.

Petitioner

does not

Perhaps petitioner is arguing that his
If so, petitioner has utterly

Petitioner’s fourth objection is that he “is entitled to

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further” unspecified “relief.”

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This, too, is not a valid objection to any of the Magistrate

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Judge’s findings or recommendations.

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In

short,

there

is

no

Obj. (Doc. 22) at 3 - 4:1.

merit

to

any

of

petitioner’s

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objections to the R & R’s recommendation to deny his first

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ground for habeas relief.

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II.

“Excessive and Cruel” Sentence

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The petition contains a second ground for habeas relief.

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It broadly alleges violations of “fundamental fairness, equal

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protection and due process” in violation of the Fifth, Sixth,

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Eighth, Ninth and Fourteenth amendments of the

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United States

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Constitution.

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petitioner’s

claim that his sentence was “excessive and cruel.”

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Id.

ground

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foregoing is petitioner’s claim that “his initial sentence was

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based on an erroneous stipulation of prior felony convictions.”

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See R & R (Doc. 21) at 3:23-24.

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claim

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Jeopardy Clause.

As

with

that

Pet. (Doc. 1) at 13.

one,

petitioner’s

the

Ground two also encompasses

primary

factual

basis

for the

Ground two also includes a

re-sentencing

violated

the

Double

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As to the petitioner’s arguments regarding his initial

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sentence, and “how it was based on an erroneous stipulation to

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prior felony convictions[,]” the Magistrate Judge found “those

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arguments [to be] irrelevant in light of the relief [petitioner]

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was granted.”

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petitioner’s Double Jeopardy claim, the Magistrate Judge found

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that

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Arizona

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jeopardy claims is contrary to or an unreasonable application

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of clearly established United States Supreme Court law.”

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at 7:22-24.

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Id. at 7:2-4.

petitioner
Court

Further, after correctly analyzing

“presented

of

Appeals

nothing

[sic]

to

demonstrate

decision

denying

that

his

the

double

Id.

Indeed, now petitioner concedes the inapplicability of the

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Double Jeopardy Clause.

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this juncture petitioner’s only objection regarding ground two

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is that his sentence is “excessive and cruel[.]”

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Petitioner

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however, and the court finds it, too, to be without merit.

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III. Other Sentencing Issues

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Ground

offers

three

no

of

See Obj. (Doc. 22) at 4:8-9.

basis

the

whatsoever

petition

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is

for

Id. at 4:6.

this

another

Thus, at

objection,

iteration

of

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petitioner’s ineffective assistance of trial counsel at his

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initial sentencing.

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judicial

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initial sentencing.

and

This ground also includes allegations of

prosecutorial

misconduct,

both

related

to

his

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After carefully reviewing both ground three of the petition

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and the R & R addressing that ground, this court hereby adopts

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the Magistrate Judge’s factual findings and legal conclusions

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in that regard.

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it agrees with the Magistrate Judge that ground three provides

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no basis for granting habeas relief pursuant to 28 U.S.C. §

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2254.

See R & R (Doc. 21) at 8:2-20.

Accordingly,

See id. at 8:20-21.

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Because “it is perfectly clear that [petitioner] does not

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raise even a colorable federal claim[,]” in his unexhausted

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petition, the court adopts the Magistrate Judge’s R & R and

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denies this petition with prejudice.

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623-24.

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IV.

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See Cassett, 406 F.3d at

Discovery
Petitioner’s discovery motion seeks permission to propound

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four interrogatories upon respondents.

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5.

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2011), the Magistrate Judge correctly stated, “[d]iscovery is

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available in a § 2254 habeas case only in the discretion of the

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court and upon a showing of good cause.”

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8:24-26.

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have no bearing on the Court’s analysis of recommendation[,]”

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and because “[p]etitioner waited until months after briefing was

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completed to even make the request[,]” the Magistrate Judge

See Mot. (Doc. 18) at

Citing to Sivak v. Hardison, 658 F.3d 898, 927 (9 th Cir.

R & R (Doc. 21) at

Finding “that answers to the interrogatories would

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1

recommends denying this motion.

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Petitioner

objects

Id. at 8:26-9:2.

asserting

that

the

“facts”

sought

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through those interrogatories “sup[p]ort . . . his ineffective

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assistance

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relief.”

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record

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however.

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Magistrate Judge’s factual findings and legal conclusions and

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denies petitioner’s discovery motion.

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V.

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cl[ai]m[,]”

and

his

“entitle[ment]

Obj. (Doc. 22) at 4:21-23.

before

this

court

supporting

to

further

There is nothing in the
that

bald

objection,

Consequently, the court agrees with and adopts the

Certificate of Appealability/In Forma Pauperis Status
Lastly,

“because

[p]etitioner

[did]

not

ma[k]e

a

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substantial showing of the denial of a constitutional right[,]”

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the

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appealability and denying petitioner leave to proceed in forma

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pauperis on appeal.

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mere disagreement with this finding, without more, does not

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warrant a different finding by this court.

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at 4:24-5:5.

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recommendation in this regard.

Magistrate

Judge

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denying

a

certificate

R & R (Doc. 21) at 9:14-16.

of

Plaintiff’s

See Obj. (Doc. 22)

Thus, the court agrees with the Magistrate Judge’s

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recommends

Conclusion
To summarize, and for the reasons set forth above, IT IS
HEREBY ORDERED that:
(1)

United

States

Magistrate

Judge

Logan’s

Report

and

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Recommendation (Doc. 21) is ADOPTED [as the findings of fact and

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conclusions of law by this court];

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(2) the Petition for Writ of Habeas Corpus (Doc. 1) is
DENIED;

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(3) plaintiff’s “Motion for an [sic] Request For Discovery
Habeas Corpus Cases Rule 6" (Doc. 18) is DENIED;
(4) a Certificate of Appealability and leave to proceed in
forma pauperis on appeal is DENIED; and
(5) that the Clerk of the Court shall enter judgment in

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accordance

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PREJUDICE.

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with

this

DATED this 27 th

Order

DISMISSING

this

petition

day of July, 2012.

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Copies to counsel of record and petitioner pro se

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WITH