Kelley v. Escapule et al

Filing 29

ORDER ADOPTING REPORTS AND RECOMMENDATIONS. Magistrate Judge's Reports and Recommendations 18 , 26 are accepted and adopted by the Court; the Motion to Stay 11 is denied; the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2 254 1 is denied and dismissed with prejudice; a Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied because the dismissal of the Petition 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 onstitutional right; the Clerk shall terminate this action. Signed by Judge Steven P Logan on 8/31/15. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Gary Thomas Kelley,

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Petitioner,
vs.

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Laura Escapule, et al.,
Respondents.

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No. CV-14-02130-PHX-SPL
ORDER

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Before the Court are Petitioner Gary Thomas Kelley’s Petition for Writ of Habeas

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Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) and Motion for Stay (Doc. 11). The

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Honorable Bridget S. Bade, United States Magistrate Judge, has issued a Report and

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Recommendation (“R&R”) as to each (Docs. 18, 26), recommending that they be denied.

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Petitioner has objected to both R&Rs. (Docs. 23, 27). For the reasons that follow, the

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Court accepts and adopts the R&Rs, and denies the petition and motion.

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I.

Background

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On May 13, 2010, Petitioner was indicted for one count of second-degree murder

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and one count of aggravated assault in the Maricopa County Superior Court, Case No.

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CR2010-123572. (Doc. 16-1, Exh. B.) Following a second jury trial, the first having

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resulted in a mistrial by a hung jury, Petitioner was found guilty on both charges. (Doc.

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16, Exhs. C and D.) Petitioner was sentenced to an aggravated 25-year term of

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imprisonment for the second-degree murder conviction, and a consecutive 7.5-year term

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of imprisonment for the aggravated assault conviction on July 5, 2011. (Doc. 16-1, Exh.

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E.) Petitioner sought direct review of his convictions and sentences, which were

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ultimately affirmed by the Arizona Supreme Court on March 27, 2013. (Docs. 16-1,

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Exhs. A, F, G; 16-2, Exhs. H, I.) Petitioner filed a Rule 32 Petition for Post-Conviction

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Relief and a State Petition for Writ of Habeas Corpus, which were denied in 2014. (Doc.

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16-2, Exhs. J-O.)

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Petitioner filed the instant federal habeas petition on September 24, 2014, raising

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four claims for relief. (Doc. 1.) In Ground One, Petitioner claims the Arizona Supreme

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Court violated his due process rights by failing to consider the merits of the claims raised

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in his state petition for writ of habeas corpus. In Ground Two, Petitioner claims the trial

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court interfered with his ability to obtain transcript excerpts and the state appellate court

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denied him counsel, both in violation of Petitioner’s Fifth, Sixth, and Fourteenth

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Amendment rights. In Ground Three, Petitioner claims this first trial court denied him

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due process by constructively amending the indicted charge by giving a “defective jury

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instruction on the charge of second-degree murder excising its two clauses for the

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consideration of self-defense, which confounded the jurors and caused their inability to

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reach a verdict.” In Ground Four, Petitioner claims the first trial court improperly

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declared a mistrial in violation of his due process rights. (Doc. 1 at 6-9.) Respondents

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filed a Limited Answer (Doc. 16), in which they argue that Petitioner’s claims are

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procedurally barred. (Doc. 16.)

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II.

Standard of Review

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The Court may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by a magistrate judge. See 28 U.S.C. § 636(b)(1). The Court

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must undertake a de novo review of those portions of the R&R to which specific

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objections are made. See id.; Fed. R. Civ. P. 72(b)(3); United States v. Reyna–Tapia, 328

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F.3d 1114, 1121 (9th Cir. 2003). However, a petitioner is not entitled as of right to de

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novo review of evidence and arguments raised for the first time in an objection to the

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R&R, and whether the Court considers the new facts and arguments presented is

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discretionary. United States v. Howell, 231 F.3d 615, 621-622 (9th Cir. 2000).
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III.

Discussion

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A.

Respondents’ Answer

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First, in his reply in support of his petition, Petitioner moves to strike

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Respondents’ limited answer as nonresponsive to a rule or order under Rule 12(f) of the

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Federal Rules of Civil Procedure, for failure to comply with Rule 5 of the Rules

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Governing Section 2254 Cases, and because it is a disguised motion to dismiss. (Doc. 22

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at 1.) Petitioner has objected to the Magistrate Judge’s ruling denying this request.

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The Court agrees with the Magistrate Judge and finds Petitioner’s arguments are

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without merit. As addressed by the Magistrate Judge, this Court’s October 30, 2014

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Order (Doc. 4) specifically permitted Respondents to file an answer limited to affirmative

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defenses, including procedural bar. As cited by Petitioner (Doc. 27 at 3-4), Rule 5 of the

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Rules Governing § 2254 Cases requires “[t]he answer [to] respond to the allegations of

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the petition.” Respondents’ Limited Answer (Doc. 16) did just that by “fram[ing] the

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issues in dispute.” Williams v. Calderon, 52 F.3d 1465, 1482 (9th Cir. 1995).

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Further, Petitioner’s objections concerning the Attorney General’s conflict of

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interest are also rejected. Petitioner previously moved for disqualification of the Attorney

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General’s Office from this case because Attorney General Mark Brnovich is married to

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Judge Susan Brnovich, who presided over Petitioner’s criminal proceedings. (Doc. 10.)

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First, as the Magistrate Judge noted, Mark Brnovich was not the Attorney General at the

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time of Petitioner’s conviction, as he was sworn in on January 5, 2015. (Doc. 19 at 4.)

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Nevertheless, the Magistrate Judge specifically ordered that Attorney General Brnovich

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be screened from personally participating or discussing this matter. (Doc. 19 at 6.) Thus,

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the Court finds that there are sufficient safeguards in place to protect Petitioner’s interests

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in light of any possible conflict that would arise in this action. Therefore, the Court

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adopts the Magistrate Judge’s denial of Petitioner’s request to strike the answer.

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B.

Habeas Petition

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Next, Petitioner has objected to the R&R’s finding that his claims are procedurally

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defaulted and barred from review. Petitioner’s objection however, does not point to any
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specific flaw in the Magistrate Judge’s analysis or findings. Instead, he offers only

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general objections. To that end, these objections largely consist of criticisms of the justice

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system and a general reiteration of the complaints that were addressed by the Magistrate

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Judge, but without any reference to the Magistrate Judge’s findings with regard to those

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complaints.

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Under Rule 72 of the Federal Rules of Civil Procedure, the district judge must

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review de novo those portions of the R&R that have been “properly objected to.”

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Fed.R.Civ.P. 72(b). A proper objection requires “specific written objections to the

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proposed findings and recommendations.” Id.; see 28 U.S.C. § 636(b)(1) (emphasis

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added). The inherent purpose of this requirement is judicial economy. See Thomas v. Arn,

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474 U.S. 140, 149 (1985); Reyna-Tapia, 328 F.3d at 1121. Because de novo review of an

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entire R&R would defeat this purpose, a general objection serves to have the same effect

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as if Petitioner had failed to object entirely. As a result, the Court has no obligation to

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review Petitioner’s general objection to the R&R. See Thomas, 474 U.S. at 149 (no

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review at all is required for “any issue that is not the subject of an objection.”). Thus, the

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Court could summarily adopt the R&R in full. However, out of an abundance of caution,

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the Court will review de novo the R&R’s conclusion on each of Petitioner’s claims.

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The Court finds that the Magistrate Judge correctly concluded that Ground One

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fails because it is not cognizable on federal habeas corpus review. See Lewis v. Jeffers,

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497 U.S. 764, 780 (1990) (federal habeas corpus relief is not available for errors of state

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law). Petitioner challenges the Arizona Supreme Court’s application of Arizona law to

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dismiss his state petition for writ of habeas corpus. This claim turns on the interpretation

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and application of state law, and Petitioner’s due process characterization does not

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transform it into a federal claim.

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The Court further finds that the Magistrate Judge correctly found that Petitioner

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did not exhaust his claims in Grounds Two, Three, and Four, and they are procedurally

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barred from review. See Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005)

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(addressing the full and fair presentation of claims in state court for purposes of the
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exhaustion requirement). Petitioner did not appeal the denial of his Rule 32 Petition, and

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thereby did not present his claims in Ground Two to the Arizona Court of Appeals.

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Petitioner did not present his claims in Grounds Three or Four on direct appeal or in post-

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conviction relief proceedings. Petitioner’s subsequent state habeas petition, which was

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dismissed because it was not the proper mechanism for presenting his claims, did not

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serve to fairly present Petitioner's claims for purposes of the exhaustion requirement. See

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Castille v. Peoples, 489 U.S. 346, 351 (1989); Roettgen v. Copeland, 33 F.3d 36, 38 (9th

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Cir. 1994). Therefore, Petitioner did not exhaust these claims and they are procedurally

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barred.

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While Petitioner challenges the fairness of the legal system, believing among other

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things that its officers have been infected with “legal glaucoma” (Doc. 27 at 9), he does

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not assert any basis to establish cause for the procedural default of his claims, nor does he

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maintain a claim of actual innocence. See Coleman v. Thompson, 501 U.S. 722, 731

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(1991) (discussing “cause” and “prejudice”); Schlup v. Delo, 513 U.S. 298, 327 (1995)

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(discussing “fundamental miscarriage of justice”). Therefore, the Court will adopt the

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R&R recommending that the petition be denied.

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C.

Motion to Stay

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Lastly, Petitioner has filed a Motion to Stay State Court Civil Proceeding (Doc.

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11), in which he requests that this Court stay the wrongful death action pending in the

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Maricopa County Superior Court, Case No. CV2012-093251, which arises from the death

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of the victim at issue in Petitioner’s underlying convictions.

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Assuming, without deciding, that 28 U.S.C. § 2251 authorizes this Court to stay

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his state court civil proceeding, which Petitioner argues, he fails to show that such a stay

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is justified. Petitioner primarily objects to the R&R on the basis that if he were to prevail

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on the instant habeas petition, it would foreclose the availability of civil remedies against

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him for the death of the victim. This argument fails. While Petitioner’s federal habeas

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petition challenges the validity of his conviction, he does not claim that he is innocent of

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the crime. The outcome of this action therefore has little bearing on any wrongful death
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action pursued against Petitioner. And, for the reasons above, the Court concludes that

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Petitioner is not entitled to habeas relief. Thus, the Court will also adopt the R&R

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recommending that Petitioner’s Motion to Stay be denied. Accordingly,

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IT IS ORDERED:

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1.

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That Magistrate Judge’s Reports and Recommendations (Docs. 18, 26) are

accepted and adopted by the Court;

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2.

That the Motion to Stay (Doc. 11) is denied;

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3.

That the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254

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(Doc. 1) is denied and dismissed with prejudice;
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That a Certificate of Appealability and leave to proceed in forma pauperis

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on appeal are denied because the dismissal of the Petition 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

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right; and

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5.

That the Clerk of Court shall terminate this action.

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Dated this 31st day of August, 2015.

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Honorable Steven P. Logan
United States District Judge

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