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)

Download PDF
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?