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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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Gary Thomas Kelley, 9 10 Petitioner, vs. 11 12 Laura Escapule, et al., Respondents. 13 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV-14-02130-PHX-SPL ORDER 15 Before the Court are Petitioner Gary Thomas Kelley’s Petition for Writ of Habeas 16 Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) and Motion for Stay (Doc. 11). The 17 Honorable Bridget S. Bade, United States Magistrate Judge, has issued a Report and 18 Recommendation (“R&R”) as to each (Docs. 18, 26), recommending that they be denied. 19 Petitioner has objected to both R&Rs. (Docs. 23, 27). For the reasons that follow, the 20 Court accepts and adopts the R&Rs, and denies the petition and motion. 21 I. Background 22 On May 13, 2010, Petitioner was indicted for one count of second-degree murder 23 and one count of aggravated assault in the Maricopa County Superior Court, Case No. 24 CR2010-123572. (Doc. 16-1, Exh. B.) Following a second jury trial, the first having 25 resulted in a mistrial by a hung jury, Petitioner was found guilty on both charges. (Doc. 26 16, Exhs. C and D.) Petitioner was sentenced to an aggravated 25-year term of 27 imprisonment for the second-degree murder conviction, and a consecutive 7.5-year term 28 of imprisonment for the aggravated assault conviction on July 5, 2011. (Doc. 16-1, Exh. 1 E.) Petitioner sought direct review of his convictions and sentences, which were 2 ultimately affirmed by the Arizona Supreme Court on March 27, 2013. (Docs. 16-1, 3 Exhs. A, F, G; 16-2, Exhs. H, I.) Petitioner filed a Rule 32 Petition for Post-Conviction 4 Relief and a State Petition for Writ of Habeas Corpus, which were denied in 2014. (Doc. 5 16-2, Exhs. J-O.) 6 Petitioner filed the instant federal habeas petition on September 24, 2014, raising 7 four claims for relief. (Doc. 1.) In Ground One, Petitioner claims the Arizona Supreme 8 Court violated his due process rights by failing to consider the merits of the claims raised 9 in his state petition for writ of habeas corpus. In Ground Two, Petitioner claims the trial 10 court interfered with his ability to obtain transcript excerpts and the state appellate court 11 denied him counsel, both in violation of Petitioner’s Fifth, Sixth, and Fourteenth 12 Amendment rights. In Ground Three, Petitioner claims this first trial court denied him 13 due process by constructively amending the indicted charge by giving a “defective jury 14 instruction on the charge of second-degree murder excising its two clauses for the 15 consideration of self-defense, which confounded the jurors and caused their inability to 16 reach a verdict.” In Ground Four, Petitioner claims the first trial court improperly 17 declared a mistrial in violation of his due process rights. (Doc. 1 at 6-9.) Respondents 18 filed a Limited Answer (Doc. 16), in which they argue that Petitioner’s claims are 19 procedurally barred. (Doc. 16.) 20 II. Standard of Review 21 The Court may accept, reject, or modify, in whole or in part, the findings or 22 recommendations made by a magistrate judge. See 28 U.S.C. § 636(b)(1). The Court 23 must undertake a de novo review of those portions of the R&R to which specific 24 objections are made. See id.; Fed. R. Civ. P. 72(b)(3); United States v. Reyna–Tapia, 328 25 F.3d 1114, 1121 (9th Cir. 2003). However, a petitioner is not entitled as of right to de 26 novo review of evidence and arguments raised for the first time in an objection to the 27 R&R, and whether the Court considers the new facts and arguments presented is 28 discretionary. United States v. Howell, 231 F.3d 615, 621-622 (9th Cir. 2000). 2 1 III. Discussion 2 A. Respondents’ Answer 3 First, in his reply in support of his petition, Petitioner moves to strike 4 Respondents’ limited answer as nonresponsive to a rule or order under Rule 12(f) of the 5 Federal Rules of Civil Procedure, for failure to comply with Rule 5 of the Rules 6 Governing Section 2254 Cases, and because it is a disguised motion to dismiss. (Doc. 22 7 at 1.) Petitioner has objected to the Magistrate Judge’s ruling denying this request. 8 The Court agrees with the Magistrate Judge and finds Petitioner’s arguments are 9 without merit. As addressed by the Magistrate Judge, this Court’s October 30, 2014 10 Order (Doc. 4) specifically permitted Respondents to file an answer limited to affirmative 11 defenses, including procedural bar. As cited by Petitioner (Doc. 27 at 3-4), Rule 5 of the 12 Rules Governing § 2254 Cases requires “[t]he answer [to] respond to the allegations of 13 the petition.” Respondents’ Limited Answer (Doc. 16) did just that by “fram[ing] the 14 issues in dispute.” Williams v. Calderon, 52 F.3d 1465, 1482 (9th Cir. 1995). 15 Further, Petitioner’s objections concerning the Attorney General’s conflict of 16 interest are also rejected. Petitioner previously moved for disqualification of the Attorney 17 General’s Office from this case because Attorney General Mark Brnovich is married to 18 Judge Susan Brnovich, who presided over Petitioner’s criminal proceedings. (Doc. 10.) 19 First, as the Magistrate Judge noted, Mark Brnovich was not the Attorney General at the 20 time of Petitioner’s conviction, as he was sworn in on January 5, 2015. (Doc. 19 at 4.) 21 Nevertheless, the Magistrate Judge specifically ordered that Attorney General Brnovich 22 be screened from personally participating or discussing this matter. (Doc. 19 at 6.) Thus, 23 the Court finds that there are sufficient safeguards in place to protect Petitioner’s interests 24 in light of any possible conflict that would arise in this action. Therefore, the Court 25 adopts the Magistrate Judge’s denial of Petitioner’s request to strike the answer. 26 B. Habeas Petition 27 Next, Petitioner has objected to the R&R’s finding that his claims are procedurally 28 defaulted and barred from review. Petitioner’s objection however, does not point to any 3 1 specific flaw in the Magistrate Judge’s analysis or findings. Instead, he offers only 2 general objections. To that end, these objections largely consist of criticisms of the justice 3 system and a general reiteration of the complaints that were addressed by the Magistrate 4 Judge, but without any reference to the Magistrate Judge’s findings with regard to those 5 complaints. 6 Under Rule 72 of the Federal Rules of Civil Procedure, the district judge must 7 review de novo those portions of the R&R that have been “properly objected to.” 8 Fed.R.Civ.P. 72(b). A proper objection requires “specific written objections to the 9 proposed findings and recommendations.” Id.; see 28 U.S.C. § 636(b)(1) (emphasis 10 added). The inherent purpose of this requirement is judicial economy. See Thomas v. Arn, 11 474 U.S. 140, 149 (1985); Reyna-Tapia, 328 F.3d at 1121. Because de novo review of an 12 entire R&R would defeat this purpose, a general objection serves to have the same effect 13 as if Petitioner had failed to object entirely. As a result, the Court has no obligation to 14 review Petitioner’s general objection to the R&R. See Thomas, 474 U.S. at 149 (no 15 review at all is required for “any issue that is not the subject of an objection.”). Thus, the 16 Court could summarily adopt the R&R in full. However, out of an abundance of caution, 17 the Court will review de novo the R&R’s conclusion on each of Petitioner’s claims. 18 The Court finds that the Magistrate Judge correctly concluded that Ground One 19 fails because it is not cognizable on federal habeas corpus review. See Lewis v. Jeffers, 20 497 U.S. 764, 780 (1990) (federal habeas corpus relief is not available for errors of state 21 law). Petitioner challenges the Arizona Supreme Court’s application of Arizona law to 22 dismiss his state petition for writ of habeas corpus. This claim turns on the interpretation 23 and application of state law, and Petitioner’s due process characterization does not 24 transform it into a federal claim. 25 The Court further finds that the Magistrate Judge correctly found that Petitioner 26 did not exhaust his claims in Grounds Two, Three, and Four, and they are procedurally 27 barred from review. See Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005) 28 (addressing the full and fair presentation of claims in state court for purposes of the 4 1 exhaustion requirement). Petitioner did not appeal the denial of his Rule 32 Petition, and 2 thereby did not present his claims in Ground Two to the Arizona Court of Appeals. 3 Petitioner did not present his claims in Grounds Three or Four on direct appeal or in post- 4 conviction relief proceedings. Petitioner’s subsequent state habeas petition, which was 5 dismissed because it was not the proper mechanism for presenting his claims, did not 6 serve to fairly present Petitioner's claims for purposes of the exhaustion requirement. See 7 Castille v. Peoples, 489 U.S. 346, 351 (1989); Roettgen v. Copeland, 33 F.3d 36, 38 (9th 8 Cir. 1994). Therefore, Petitioner did not exhaust these claims and they are procedurally 9 barred. 10 While Petitioner challenges the fairness of the legal system, believing among other 11 things that its officers have been infected with “legal glaucoma” (Doc. 27 at 9), he does 12 not assert any basis to establish cause for the procedural default of his claims, nor does he 13 maintain a claim of actual innocence. See Coleman v. Thompson, 501 U.S. 722, 731 14 (1991) (discussing “cause” and “prejudice”); Schlup v. Delo, 513 U.S. 298, 327 (1995) 15 (discussing “fundamental miscarriage of justice”). Therefore, the Court will adopt the 16 R&R recommending that the petition be denied. 17 C. Motion to Stay 18 Lastly, Petitioner has filed a Motion to Stay State Court Civil Proceeding (Doc. 19 11), in which he requests that this Court stay the wrongful death action pending in the 20 Maricopa County Superior Court, Case No. CV2012-093251, which arises from the death 21 of the victim at issue in Petitioner’s underlying convictions. 22 Assuming, without deciding, that 28 U.S.C. § 2251 authorizes this Court to stay 23 his state court civil proceeding, which Petitioner argues, he fails to show that such a stay 24 is justified. Petitioner primarily objects to the R&R on the basis that if he were to prevail 25 on the instant habeas petition, it would foreclose the availability of civil remedies against 26 him for the death of the victim. This argument fails. While Petitioner’s federal habeas 27 petition challenges the validity of his conviction, he does not claim that he is innocent of 28 the crime. The outcome of this action therefore has little bearing on any wrongful death 5 1 action pursued against Petitioner. And, for the reasons above, the Court concludes that 2 Petitioner is not entitled to habeas relief. Thus, the Court will also adopt the R&R 3 recommending that Petitioner’s Motion to Stay be denied. Accordingly, 4 IT IS ORDERED: 5 1. 6 That Magistrate Judge’s Reports and Recommendations (Docs. 18, 26) are accepted and adopted by the Court; 7 2. That the Motion to Stay (Doc. 11) is denied; 8 3. That the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 9 10 (Doc. 1) is denied and dismissed with prejudice; 4. That a Certificate of Appealability and leave to proceed in forma pauperis 11 on appeal are denied because the dismissal of the Petition is justified by a plain 12 procedural bar and jurists of reason would not find the procedural ruling debatable and 13 because Petitioner has not made a substantial showing of the denial of a constitutional 14 right; and 15 5. That the Clerk of Court shall terminate this action. 16 Dated this 31st day of August, 2015. 17 18 Honorable Steven P. Logan United States District Judge 19 20 21 22 23 24 25 26 27 28 6

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