Bustamante #124984 v. Ryan et al

Filing 44

ORDER: The Report and Recommendation 42 is ADOPTED and the petition for writ of habeas corpus is DENIED and DISMISSED. Petitioner's objections 43 are OVERRULED. Petitioner's Motion for Judgment 34 is DENIED. A Certificate of Appealabi lity 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. Signed by Senior Judge Roslyn O Silver on 9/11/2017. (REK)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Martin Abel Bustamante,
Petitioner,

10
11

ORDER

v.

12

No. CV-16-01515-PHX-ROS

Charles L Ryan, et al.,

13

Respondents.

14
15

Petitioner Martin Bustamante was convicted by a jury in Maricopa County

16

Superior Court of kidnapping, theft by extortion, aggravated assault, and misconduct

17

involving weapons. (Doc. 32-1 at 14-15.) Petitioner filed a habeas petition where he

18

raised four grounds for relief: (1) insufficient evidence for conviction and malicious

19

prosecution1; (2) equal protection violation; (3) excessive sentences, particularly

20

regarding the consecutive sentences, and (4) ineffective assistance of counsel for not

21

moving to sever the case and not objecting to the indictment based on Petitioner’s mere

22

presence defense. (Doc. 1 at 6-10.) On February 8, 2017, Petitioner filed a Motion for

23

Judgment where he asked the Court to answer his habeas petition in favor of Petitioner

24

and grant a writ of habeas corpus. (Doc. 34.)

25

Deborah M. Fine issued a Report and Recommendation (“R&R”) recommending the

26

petition for writ of habeas corpus be denied and dismissed with prejudice. (Doc. 42.)

On May 2, 2017, Magistrate Judge

27
28

1

It appears Petitioner alleged two arguments in Ground One, and the R&R
analyzes both.

1

Regarding the first part of Ground One, Petitioner argued the evidence was

2

insufficient to sustain his guilty verdict. (Doc. 1 at 6.) The R&R found this claim lacked

3

merit because the Arizona Court of Appeals’ denial of this claim on direct appeal did not

4

rest on unreasonable factual determinations, nor did it unreasonably apply clearly

5

established federal law. (Doc. 42 at 11-16.) The R&R concluded Petitioner did not

6

exhaust the second part of Ground One, the malicious prosecution claim, as well as

7

Grounds Two through Four because Petitioner did not raise these grounds on direct

8

appeal or as part of properly brought post-conviction relief proceedings. (Id. at 8-9.) The

9

R&R found there is no malicious prosecution claim in the record at any stage of his

10

appeal or PCR proceedings, and Petitioner admitted he did not raise grounds Two and

11

Four in the Arizona Court of Appeals. (Id. at 9; see Doc. 1 at 8, 10.) Although

12

Petitioner’s habeas petition asserted he raised Ground Three in his second PCR petition,

13

(id. at 9), the trial court dismissed the proceeding after Petitioner failed to file the second

14

PCR petition by the deadline. (Doc. 42 at 9.) And although Petitioner’s habeas petition

15

argued in Ground Three that his sentence is excessive, his first PCR petition did not argue

16

whether his sentence was excessive, but rather it argued an ineffective assistance of

17

counsel claim based on the trial counsel’s failure to adequately make this challenge.

18

(Doc. 32-2 at 3.) Further, the R&R concluded Petitioner has not established cause and

19

prejudice for the default or established actual innocence. (Doc. 42 at 1.)

20

The R&R thus recommended the insufficiency of evidence claim in Ground One

21

be dismissed, and the malicious prosecution claim in Ground One as well as Grounds

22

Two, Three, and Four be dismissed because these unexhausted claims are procedurally

23

defaulted. (Id.) The R&R also recommended the Motion for Judgment be denied for the

24

same reasons.

25

A district judge “may accept, reject, or modify, in whole or in part, the findings or

26

recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). Where any party

27

has filed timely objections to the R&R, the district court’s review of the part objected to

28

must be de novo. Id. If, however, no objections are filed, the district court need not

-2-

1

conduct such a review. Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz.

2

2003).

3

Here, Petitioner’s objections were limited to three bases: the doctrine of laches, he

4

was prejudiced when his appointed counsel on appeal lacked qualifications, and he has

5

acted with reasonable diligence. (Doc. 43 at 1-2.) First, the Court does not see how the

6

doctrine of laches is a valid basis for objecting to any recommendation of dismissal

7

contained in the R&R. Second, Petitioner’s objections regarding prejudice and diligence

8

appear to be related to procedural default.

9

reasonable diligence and that his previous appellate counsel lacked qualifications, these

10

assertions do not sufficiently establish cause to excuse the procedural default and

11

prejudice from a violation of federal law. Petitioner has not shown an objective factor

12

external to the defense that he was prevented from properly raising his claims in state

13

court, especially when he previously raised other claims. See Murray v. Carrier, 477

14

U.S. 478, 488 (1986). Nor has Petitioner established that his appellate counsel made an

15

error which amounted to a deprivation of a constitutional right to counsel in order to

16

provide cause for excusing the procedural default. Thus, Petitioner has not provided

17

valid objections to the R&R, and the Court agrees with the R&R’s finding that Petitioner

18

failed to establish cause and prejudice for default.

Although he stated that he acted with

19

Accordingly,

20

IT IS ORDERED the Report and Recommendation (Doc. 42) is ADOPTED and

21
22
23
24
25

the petition for writ of habeas corpus is DENIED and DISMISSED.
IT IS FURTHER ORDERED Petitioner’s objections (Doc. 43) are
OVERRULED.
IT IS FURTHER ORDERED Petitioner’s Motion for Judgment (Doc. 34) is
DENIED.

26

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

27

in forma pauperis on appeal are DENIED because the dismissal of the petition is justified

28

by a plain procedural bar and jurists of reason would not find the procedural ruling

-3-

1
2

debatable.
Dated this 11th day of September, 2017.

3
4
5

Honorable Roslyn O. Silver
Senior United States District Judge

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-4-