Wiggins v. Ryan et al

Filing 18

ORDER that Magistrate Judge Mark E. Aspey's 16 R & R is accepted. Petitioner's 1 Petition for Writ of Habeas Corupus is denied. The Clerk of Court is directed to terminate this action. Signed by Judge David G Campbell on 10/24/2012. (LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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No. CV-12-00388-PHX-DGC

Leroy Wiggins
Petitioner,

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v.

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ORDER

Charles L. Ryan, et al.
Respondents.

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On May 1, 2003, Petitioner pled guilty in Maricopa County Superior Court to

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three counts of sale or transportation of narcotic drugs, all class two felonies, and

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admitted two prior felony convictions in exchange for having the remaining 16 felony

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counts against him dismissed and a third prior felony conviction not counted towards his

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sentence. Doc. 16 at 1-2. On December 10, 2004, the state court sentenced Petitioner to

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the presumptive term of 15.75 years in prison for each of the three counts, with the first

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two terms to run concurrently and the third to run consecutively, for a total of 31.5 years.

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Id. at 2.

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On October 25, 2011, more than six years after the deadline for filing an action for

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state post-conviction relief, Petitioner filed a notice of post-conviction relief under

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Arizona Rule of Criminal Procedure 32, asserting that (1) he was coerced into a plea

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agreement in violation of his Sixth, Eighth, and Fourteenth Amendment rights, (2) his

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counsel was ineffective because she knew he was coerced and she failed to file a timely

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action seeking post-conviction relief, and (3) the untimeliness of his notice should be

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excused because he had new information and the untimeliness was not his fault. Id. at 2-

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3; see Doc. 14-1 at 62-64. The state court summarily dismissed Petitioner’s action as

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untimely on November 1, 2011, finding that Petitioner had not asserted new facts or

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shown any diligence in filing his petition. Doc. 16 at 3.

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On February 2, 2012, Petitioner filed a petition for review with the Arizona Court

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of Appeals that reasserted his claims and also argued that he suffered prosecutorial

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misconduct in violation of his Fifth, Sixth, Eighth, and Fourteenth Amendment rights. Id.

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at 3-4. The Arizona Court of Appeals denied the petition as untimely, and Petitioner did

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not seek review by the Arizona Supreme Court. Id. at 4.

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On February 23, 2012, Petitioner filed a pro se action seeking federal habeas relief

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under 28 U.S.C. § 2254. Doc. 1. Petitioner asserts that (1) the Arizona Court of Appeals

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erred when it dismissed his petition for review as untimely, (2) he was coerced into

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accepting a plea agreement, (3) he was subjected to prosecutorial misconduct in violation

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of his Fifth, Sixth, Eighth, and Fourteenth Amendment rights, (4) the trial court abused its

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discretion when it sentenced him using “double-counting” of his prior conviction in

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violation of Arizona law, (5) he was subjected to ineffective assistance of counsel in

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violation of his Sixth Amendment rights, (6) the Arizona Court of Appeals violated his

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right to due process when it dismissed his petition for review as untimely, and (7) the trial

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court violated his due process rights when it dismissed his notice of post-conviction

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relief. Docs. 1 at 6-12; 1-1 at 9-15.

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On August 14, 2012, United States Magistrate Judge Mark E. Aspey issued a

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Report and Recommendation (“R&R”). Doc. 16. The R&R recommends that the Court

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deny the petition with prejudice because it is barred by the applicable statute of

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limitations for federal habeas relief, Petitioner’s untimely filing of the state court action

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for post-conviction relief did not re-start the already-expired statute of limitations, and

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Petitioner has not met the standard for equitable tolling because he has not shown that

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extraordinary circumstances prevented him from timely filing or that he was actually

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innocent of the crimes. Doc. 16 at 5-10. Judge Aspey also found that Petitioner’s claims

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are procedurally defaulted because Petitioner did not first present them in a timely
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manner before the state court, and that he has not shown cause or prejudice arising from

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his failure to present his claims or that he is factually innocent so that a fundamental

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miscarriage of justice would result if his claims are not heard. Id. at 10-18. Judge Aspey

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additionally found that Petitioner’s fourth claim, that he was over-sentenced under state

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law due to “double-counting,” is not a cognizable claim in any event because federal

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habeas relief is not available for alleged errors in the application of state law. Id. at 18.

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Petitioner filed objections to the R&R on August 27, 2012. Doc. 17. For the reasons that

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follow, the Court will accept the R&R and deny Petitioner’s petition.

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II.

Standard of Review.

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A party may file specific written objections to an 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 the

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findings or recommendations in the R&R. Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1).

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III.

Analysis.

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Petitioner objects to Judge Aspey’s findings “for the reasons already stated in the

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Habeas Petition as well as in the Reply to Respondent’s Limited Answer.” Doc. 17 at 2-

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4. He makes no specific objections. In effect, Petitioner asks the Court to conduct a de

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novo review of his claims, thereby duplicating the work of the magistrate judge. This

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defeats Congress’ purpose in providing for magistrate judges to assist the district courts

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in discharging the heavy workload of the federal judiciary. Thomas v. Arn, 474 U.S. 140,

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147-152 (1985); see Sullivan v. Schriro, No. CV-04-1517, 2006 WL 1516005 (D. Ariz.

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May 30, 2006). Judge Aspey has addressed each of Petitioner’s claims and thoroughly

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discussed the reasons they are untimely and procedurally defaulted and why claim four

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presents an invalid ground for federal habeas relief. Judge Aspey addressed Petitioner’s

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failure to show that he is entitled to equitable tolling or that he meets the requirements for

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having his claims heard on the merits despite his procedural default.

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Because Petitioner does not make specific objections to Judge Aspey’s findings

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and recommendations as required by 28 U.S.C. ' 636(b)(1), the Court will deem his
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objection ineffective and will accept the R&R. This ruling comports with the clear

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language of Rule 72(b) that a district judge “shall make a de novo determination . . . of

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any portion of the magistrate judge's disposition to which specific written objection has

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been made[.]”

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1516005 at *1. The Court is relieved of any obligation to review a general objection to

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the R&R. See Thomas, 474 U.S. 140, 149 (no review at all is required for “any issue that

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is not the subject of an objection.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1121

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(9th Cir. 2003) (same).

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Fed. R. Civ. P. 72(b)(2) (emphasis added); see Sullivan, 2006 WL

IT IS ORDERED:

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1.

Magistrate Judge Mark E. Aspey’s R&R (Doc. 16) is accepted.

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2.

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

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3.

The Clerk of Court is directed to terminate this action.

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Dated this 24th day of October, 2012.

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