Pember v. Ryan et al

Filing 28

MEMORANDUM OF DECISION AND ORDER ADOPTING REPORT AND RECOMMENDATION. The Court adopts the Report and Recommendation of the Magistrate Judge 23 ; Petitioner's Amended Petition for Writ of Habeas Corpus 4 is denied and this action is dismissed with prejudice; a Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied because dismissal is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable, and because Petitioner has not made a substantial showing of the denial of a constitutional right. Signed by Senior Judge Stephen M McNamee on 10/3/12. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jay Lynn Pember,

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Petitioner,
vs.

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Charles L. Ryan, et al.,
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Respondents.
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No. CV-11-1600-PHX-SMM (LOA)

MEMORANDUM OF DECISION AND
ORDER

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Pending before the Court is Magistrate Judge Lawrence O. Anderson’s Report and

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Recommendation advising this Court that Petitioner’s Amended Petition for Writ of Habeas

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Corpus (Doc. 4) pursuant to 28 U.S.C. § 2254 be denied and dismissed with prejudice. (Doc.

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23.) Petitioner has filed objections to the Report and Recommendation (Doc. 24), and

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Respondents have filed a Response (Doc. 27). After considering the Report and

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Recommendation and the arguments raised in Petitioner’s Objections thereto, the Court will

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deny Petitioner’s objections and affirm Judge Anderson’s Report and Recommendation.

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STANDARD OF REVIEW

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When reviewing a Magistrate Judge’s Report and Recommendation, this Court “shall

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make a de novo determination of those portions of the report . . . to which objection is made,”

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and “may accept, reject, or modify, in whole or in part, the findings or recommendations

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made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(c); see also Baxter v. Sullivan, 923

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F.2d 1391, 1394 (9th Cir. 1991) (citing Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452,

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454 (9th Cir. 1983)).
DISCUSSION1

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Petitioner claims four grounds for relief in his Petition. (Doc. 4.) In Ground One,

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Petitioner alleges that the trial court violated his rights under the 5th, 6th, and 14th

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Amendments by dismissing a prospective juror outside of Petitioner’s presence before voir

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dire. (Id.) In Ground Two, Petitioner alleges that the trial court violated his 5th, 6th, and 14th

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Amendment rights by requiring him to wear leg shackles during trial, and by not granting a

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mistrial after a juror heard Petitioner get handcuffed on one occasion. (Id.) In Ground Three,

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Petitioner alleges that his 5th, 6th, 8th, and 14th Amendment rights were violated due to both

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ineffective assistance of counsel (“IAC”) on his direct appeal, and the court of appeals’

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rulings clarifying his sentence. (Id.) Finally, in Ground Four, Petitioner alleges that the trial

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court violated his 5th, 6th, 8th, and 14th Amendment rights by amending its sentencing minute

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entry to require that Petitioner perform community service following his release, without

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giving notice to Petitioner. (Id.)

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After conducting a thorough legal analysis, the Magistrate Judge concluded that

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Petitioner’s claims are all procedurally barred or without merit. (Doc. 23.) As to Ground One,

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the Magistrate Judge determined that to the extent Petitioner was raising federal claims which

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he did not properly present to the state court, Petitioner’s claims were procedurally barred.

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(Id.) Reviewing the portion of Petitioner’s claims in Ground One which were not barred, the

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Magistrate Judge concluded that the claims were without merit. (Id.) The Magistrate Judge

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came to the same conclusions as to Petitioner’s claims in Ground Two. (Id.)

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As to Ground Three, the Magistrate Judge determined that Petitioner’s claim of IAC

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was procedurally barred, based on adequate and independent state law grounds. (Id.) The

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Magistrate Judge similarly concluded that Petitioner’s claim concerning the court of appeals’

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ruling was procedurally barred because Petitioner failed to properly present it to the state

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courts. (Id.)

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The factual and procedural history of this case is set forth in the Magistrate
Judge’s Report and Recommendation (Doc. 23).

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Finally, the Magistrate Judge concluded that Petitioner’s claim in Ground Four was

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procedurally barred because it was rejected in the state court on adequate and independent

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state law grounds, in that Petitioner failed to raise the claim on direct appeal. (Id.)

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Petitioner raises objects to the Report and Recommendations, which are identified and
discussed as follows. (Doc. 27.)

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A.

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Petitioner contends that his two claims in Ground Three are not procedurally barred.

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(Doc. 27.) As to his IAC claim, Petitioner contends that he raised the claim in his first

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petition for post-conviction relief (“PCR”) in state court, and tried to raise it again in his

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second petition for PCR. (Id.) Petitioner’s argument fails: Petitioner’s claim was procedurally

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defaulted because he failed to properly present this issue as a federal claim in state court, and

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because he raised the issue for the first time in his reply brief. (Doc. 23 at 11-12.) Similarly,

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because Petitioner defaulted his IAC claim in his first petition for PCR, the claim was found

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procedurally defaulted during his second petition for PCR. (Id. at 12; See ARIZ. R. CRIM. P.

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32.2(a)(3).)

Petitioner’s Objections to Procedural Bar of Ground Three Claims

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As to his Ground Three claim that the court of appeals’ ruling clarifying his sentence

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violated his rights under the federal constitution, Petitioner submits again that he did raise

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the issue properly in state court, and thus that the claim should not be procedurally barred.

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(Doc. 24.) The Court disagrees. Petitioner did not ask the appellate court for reconsideration

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which led the PCR court to procedurally default this claim on independent and adequate state

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law grounds when he tried to raise it later in his petition for PCR. (Doc. 23 at 12.)

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B.

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Petitioner contends similarly that his claim in Ground Four is not procedurally barred

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because he properly raised the issue in his first petition for post-conviction relief. (Doc. 27.)

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Petitioner failed to raise this sentencing issue on direct appeal which caused the PCR court

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to default this claim in his petition for PCR on independent and adequate state law grounds.

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(Doc. 23 at 12.)

Petitioner’s Objection to Procedural Bar of Ground Four Claim

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C.

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Finally, Petitioner contends that as to all four of his grounds for relief, state court

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procedural defaults should be excused because he can establish cause and prejudice, and

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alternatively can establish that a fundamental miscarriage of justice will result. (Doc. 24.)

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Specifically, Petitioner contends that he personally did not have adequate access to records

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from his trial for several years after his conviction, which caused the procedural defaults.

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(Doc. 24.) Petitioner fails however to establish that sufficient objective, external factors

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impeded his efforts to comply with the state’s procedural rules. See Smith v. Murray, 477

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U.S. 527, 533 (1986). Thus, the Magistrate Judge properly concluded that Petitioner could

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Petitioner’s Objections Common to All Grounds

not show sufficient cause to excuse his procedural defaults. (Doc. 23 at 13.)

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Similarly, Petitioner fails to show that the procedural defaults would result in a

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fundamental miscarriage of justice. To establish that a “fundamental miscarriage of justice”

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would result, a petitioner must present evidence showing that a “constitutional violation has

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probably resulted in the conviction of one who is actually innocent.” See Schlup v. Delo, 513

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U.S. 298, 327 (1995). While Petitioner objects to the Magistrate Judge’s determination that

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Petitioner cannot make this showing, Petitioner fails to support his objection with anything

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beyond his conclusory allegation that he was found guilty based on perjured testimony and

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a conspiracy involving the state and the Sheriff’s Office. (Doc. 24 at 7-8.) The Court finds

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that the Magistrate Judge properly concluded that Petitioner has not established a

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fundamental miscarriage of justice, in order to excuse his defaults. (Doc. 23 at 13-14.)

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Therefore, having reviewed the legal conclusions of the Report and Recommendation

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of the Magistrate Judge, and the objections made by Petitioner thereto, the Court finds that

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the Magistrate Judge adequately addressed all of Petitioner’s arguments. Petitioner’s

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objections fail to counter the factual and legal conclusions of the Magistrate Judge which

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mandate application of procedural bars to Petitioner’s claims.

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Finally, the Magistrate Judge reviewed those portions of Petitioner’s Grounds One and

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Two which were not procedurally barred, and concluded that the claims were without merit.

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(Doc. 23 at 17-27.) Petitioner does not articulate any objection to this portion of the

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Magistrate Judge’s factual or legal determinations, and after review the Court finds that the

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Magistrate Judge properly concluded that those portions of Petitioner’s claims which are not

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barred are nonetheless without merit, and thus should be denied.

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Therefore, the Court hereby incorporates and adopts the Magistrate Judge’s Report
and Recommendation. (Doc. 23.)

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CONCLUSION

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For the reasons set forth above,

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IT IS HEREBY ORDERED that the Court adopts the Report and Recommendation

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of the Magistrate Judge (Doc. 23).
IT IS FURTHER ORDERED that Petitioner’s Amended Petition for Writ of Habeas
Corpus (Doc. 4) is DENIED and this action is DISMISSED WITH PREJUDICE.

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IT IS FURTHER ORDERED that a Certificate of Appealability and leave to

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proceed in forma pauperis on appeal are DENIED because dismissal is justified by a plain

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procedural bar and jurists of reason would not find the procedural ruling debatable, and

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because Petitioner has not made a substantial showing of the denial of a constitutional right.

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DATED this 3rd day of October, 2012.

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