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)
1
WO
2
3
4
5
6
7
IN THE UNITED STATES DISTRICT COURT
8
FOR THE DISTRICT OF ARIZONA
9
10
11
12
Donald A. Montgomery,
13
14
15
Petitioner,
vs.
Deputy Warden Anna Jacobs,
et al.,
16
Respondents.
17
)
)
)
)
)
)
)
)
)
)
)
No. CIV 11-01467-PHX-RCB(SPL)
O R D E R
18
Pending before this court is a Petition for Writ of Habeas
19
Corpus relief brought pursuant to 28 U.S.C. § 2254 filed by
20
petitioner pro se Donald A. Montgomery (Doc. 1).
21
seeking a “remand” to Arizona state court for re-sentencing
22
without taking into account any prior convictions.
23
Pet. (Doc. 1) at 12.
24
discovery (Doc. 18), filed on April 19, 2012, while the petition
25
was pending before Magistrate Judge Steven P. Logan.
Petitioner is
See, e.g.,
Also pending is petitioner’s motion for
26
In his Report and Recommendation (“R & R”) filed June 27,
27
2012, the Magistrate Judge recommends: (1) denying the petition
28
with prejudice; (2) denying the discovery motion; (3) denying
1
the
2
leave to proceed in forma pauperis on appeal.
3
at 9:10-16.
On July 6, 2012, petitioner timely filed objections
4
(Doc. 22).
Respondents did not file any objections.
Certificate of Appealability; and (4) denying petitioner
R & R (Doc. 21)
5
In accordance with 28 U.S.C. § 636(b)(1), when reviewing a
6
R & R, this court “may accept, reject or modify, in whole or in
7
part, the findings or recommendations made by the [M]agistrate.”
8
28 U.S.C. § 636(b)(1).
9
district judge must review the magistrate judge’s findings and
That statute “makes it clear that the
10
recommendations
11
otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121
12
(9 th Cir. 2003) (en banc) (emphasis in original).
13
U.S.C. § 636(b)(1)(C) requires, this court has made
14
determination of those portions of the report . . . to which”
15
petitioner objected.
16
conducted such a review, for the reasons set forth below, the
17
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
18
Background
19
The background as recited in the R & R is uncontested.
20
such, the court incorporates that background by reference and
21
adopts the same as if fully set forth herein.
22
As
Discussion
23
When the Magistrate Judge issued the R & R, petitioner’s
24
petition for post-conviction relief as to his re-sentencing was
25
pending before the Arizona Court of Appeals, where it remains
26
pending as July 27, 2012, the date of the filing and entry of
27
this order.
28
11-0051
PRPC
http://apps.supremecourt.azgov/aacc/1ca - 1CA-CR
(last
visited
July
-2-
27,
2012).
Under
these
1
circumstances, the Magistrate Judge correctly stated:
2
federal court may deny an unexhausted petition on the merits
3
only when it is perfectly clear that the applicant does not
4
raise even a colorable claim.’” R & R (Doc. 21) at 4:18-19
5
(quoting Cassett v. Stewart, 406 F.3d 614, 623-24 (9 th Cir.
6
2005)).
7
may only be granted when state court proceedings:
8
in a decision that was contrary to, or involved an unreasonable
9
application of, clearly established Federal law, as determined
10
by the Supreme Court of the United States; or (2) resulted in
11
a decision that was based on an unreasonable determination of
12
the facts in light of the evidence presented in the State court
13
proceeding.”
14
U.S.C. § 2251(d)).
15
Magistrate Judge further pointed out, that even an erroneous or
16
incorrect application of clearly established federal law does
17
not support a habeas grant, unless the state court’s application
18
was “objectively unreasonable.”
19
63, 75-76, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003).
20
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
21
Guided by these standards, the Magistrate Judge recommends
22
denying petitioner’s first ground for habeas relief, wherein
23
petitioner claims ineffective assistance of counsel in violation
24
of
25
assistance of counsel because at his sentencing hearing, and
26
without
27
convictions.
the
Sixth
his
Amendment.
consent,
his
Petitioner
trial
counsel
claims
ineffective
stipulated
to prior
In seeking habeas relief on this basis, petitioner
28
-3-
1
does not take into account, as the Magistrate Judge soundly and
2
accurately reasoned, that petitioner has
“already received the
3
relief
his
4
ineffective assistance at his first sentencing hearing.”
5
R (Doc. 21) at 6:10-11.
6
In
to
which
he
particular,
was
entitled
after
his
for
trial
sentencing,
7
successful in seeking post-conviction relief.
8
vacated
9
sentencing hearing.
petitioner’s
original
sentence
counsel’s
petitioner
R &
was
The trial court
conducted
a
new
After the re-sentencing hearing, where
10
there was no stipulation to prior convictions, petitioner was
11
sentenced to the same sentence previously imposed, i.e., an
12
aggravated term of 12 years on the class 4 felony and the
13
presumptive term of 3.75 years on each of the remaining three
14
offenses, all to be served concurrently.
15
thereto (Doc. 1-2) at 59:9-15. 1
See Pet., exh. I
16
Not only has petitioner already received the relief which
17
he is seeking in the pending petition, but as the R & R also
18
notes, in petitioner’s direct appeal after re-sentencing, the
19
Arizona Court of Appeals held, based upon state law, that its
20
review was limited to the re-sentencing proceedings.
21
(Doc. 21) at 6:14-16 (citing Doc. 12 [Ans.], Exh. BBB (Doc. 12-
22
3) at 6-8).
23
arguments
24
sentencing.
25
¶ 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
26
27
28
1
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.
-4-
1
The R & R recognizes that “the Court of Appeals relied on
2
state
3
resentencing proceedings[.]” Id. at 6:17-18; see also Ans., exh.
4
BBB thereto (Doc. 12-3) at 7, ¶ 11.
5
R & R correctly states that:
law
to
6
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.
7
8
9
10
11
R & R (Doc. 21) at 6:18-21 (citation omitted).
12
R & R found that “[b]ecause Petitioner has already been granted
13
relief on the claim raised in ground one, and has failed to show
14
that he is entitled to any further relief,” it recommend denial
15
of habeas relief based upon ground one.
Concluding, the
Id. at 6:22-24.
16
Petitioner
lists
17
recommendation.
None
18
apparent.
19
Court
20
assistance of counsel cliam’s [sic] on direct appeal[].”
21
(Doc. 22) at 3:20-21.
22
not shown that declining such a review somehow entitles him to
23
habeas relief under 28 U.S.C. § 2254.
24
not in any way expand upon the basis for this objection, which
25
on its face has no validity.
26
27
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
28
-5-
Moreover, petitioner does
stating
only
raise[d]
in
that
the
“Sixth
District
1
Co[u]rt on habeas corpus.”
2
The
3
objection to the R & R.
4
nowhere in the R & R does it indicate to the contrary, i.e.,
5
that
6
properly before this court.
7
no
8
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
9
Third, petitioner objects because “the trial court applyed
10
[sic] Strickland [v.] Washington, 466 U.S. at 688, 104 S.Ct.
11
2052 ‘unreasonable.’” Id.
12
expand in any way upon the basis for this objection, and its
13
exact nature is unclear.
14
re-sentencing was unreasonable.
15
failed to met his burden in this regard as well.
16
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
17
further” unspecified “relief.”
18
This, too, is not a valid objection to any of the Magistrate
19
Judge’s findings or recommendations.
20
In
short,
there
is
no
Obj. (Doc. 22) at 3 - 4:1.
merit
to
any
of
petitioner’s
21
objections to the R & R’s recommendation to deny his first
22
ground for habeas relief.
23
II.
“Excessive and Cruel” Sentence
24
The petition contains a second ground for habeas relief.
25
It broadly alleges violations of “fundamental fairness, equal
26
protection and due process” in violation of the Fifth, Sixth,
27
Eighth, Ninth and Fourteenth amendments of the
28
-6-
United States
1
Constitution.
2
petitioner’s
claim that his sentence was “excessive and cruel.”
3
Id.
ground
4
foregoing is petitioner’s claim that “his initial sentence was
5
based on an erroneous stipulation of prior felony convictions.”
6
See R & R (Doc. 21) at 3:23-24.
7
claim
8
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
9
As to the petitioner’s arguments regarding his initial
10
sentence, and “how it was based on an erroneous stipulation to
11
prior felony convictions[,]” the Magistrate Judge found “those
12
arguments [to be] irrelevant in light of the relief [petitioner]
13
was granted.”
14
petitioner’s Double Jeopardy claim, the Magistrate Judge found
15
that
16
Arizona
17
jeopardy claims is contrary to or an unreasonable application
18
of clearly established United States Supreme Court law.”
19
at 7:22-24.
20
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
21
Double Jeopardy Clause.
22
this juncture petitioner’s only objection regarding ground two
23
is that his sentence is “excessive and cruel[.]”
24
Petitioner
25
however, and the court finds it, too, to be without merit.
26
III. Other Sentencing Issues
27
Ground
offers
three
no
of
See Obj. (Doc. 22) at 4:8-9.
basis
the
whatsoever
petition
28
-7-
is
for
Id. at 4:6.
this
another
Thus, at
objection,
iteration
of
1
petitioner’s ineffective assistance of trial counsel at his
2
initial sentencing.
3
judicial
4
initial sentencing.
and
This ground also includes allegations of
prosecutorial
misconduct,
both
related
to
his
5
After carefully reviewing both ground three of the petition
6
and the R & R addressing that ground, this court hereby adopts
7
the Magistrate Judge’s factual findings and legal conclusions
8
in that regard.
9
it agrees with the Magistrate Judge that ground three provides
10
no basis for granting habeas relief pursuant to 28 U.S.C. §
11
2254.
See R & R (Doc. 21) at 8:2-20.
Accordingly,
See id. at 8:20-21.
12
Because “it is perfectly clear that [petitioner] does not
13
raise even a colorable federal claim[,]” in his unexhausted
14
petition, the court adopts the Magistrate Judge’s R & R and
15
denies this petition with prejudice.
16
623-24.
17
IV.
18
See Cassett, 406 F.3d at
Discovery
Petitioner’s discovery motion seeks permission to propound
19
four interrogatories upon respondents.
20
5.
21
2011), the Magistrate Judge correctly stated, “[d]iscovery is
22
available in a § 2254 habeas case only in the discretion of the
23
court and upon a showing of good cause.”
24
8:24-26.
25
have no bearing on the Court’s analysis of recommendation[,]”
26
and because “[p]etitioner waited until months after briefing was
27
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
28
-8-
1
recommends denying this motion.
2
Petitioner
objects
Id. at 8:26-9:2.
asserting
that
the
“facts”
sought
3
through those interrogatories “sup[p]ort . . . his ineffective
4
assistance
5
relief.”
6
record
7
however.
8
Magistrate Judge’s factual findings and legal conclusions and
9
denies petitioner’s discovery motion.
10
V.
11
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
12
substantial showing of the denial of a constitutional right[,]”
13
the
14
appealability and denying petitioner leave to proceed in forma
15
pauperis on appeal.
16
mere disagreement with this finding, without more, does not
17
warrant a different finding by this court.
18
at 4:24-5:5.
19
recommendation in this regard.
Magistrate
Judge
22
23
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
20
21
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
24
Recommendation (Doc. 21) is ADOPTED [as the findings of fact and
25
conclusions of law by this court];
26
27
(2) the Petition for Writ of Habeas Corpus (Doc. 1) is
DENIED;
28
-9-
1
2
3
4
5
(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
6
accordance
7
PREJUDICE.
8
with
this
DATED this 27 th
Order
DISMISSING
this
petition
day of July, 2012.
9
10
11
12
13
14
15
Copies to counsel of record and petitioner pro se
16
17
18
19
20
21
22
23
24
25
26
27
28
- 10 -
WITH
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?