Borrud #232719 v. Ryan et al

Filing 57

ORDER ADOPTING REPORT AND RECOMMENDATION: The Magistrate Judge's Report and Recommendation (Doc. 41 ) is accepted and adopted by the Court; the Motion for Delayed Filing (Doc. 52 ) is granted; the Motion for Clarification (Doc. 50 ) is denied as moot; the Motion for Stay and Abeyance (Doc. 44 ) and the Motion for Judicial Notice (Doc. 54 ) are denied; the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1 ) 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 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 jurists of reason would not find the court's assessment of the constitutional claim debatable or wrong; and the Clerk of Court shall terminate this action. Signed by Judge Steven P Logan on 3/21/17. (KGM)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Jan Eldar Borrud, 9 10 Petitioner, vs. 11 12 Charles L. Ryan, et al., Respondents. 13 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV-15-08043-PHX-SPL ORDER 15 Before the Court is Petitioner Jan Eldar Borrud’s Petition for Writ of Habeas 16 Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). The Honorable Judge James F. Metcalf, 17 United States Magistrate Judge, has issued a Report and Recommendation (“R&R”) 18 (Doc. 41), recommending that the petition be denied. Petitioner has objected to the R&R 19 (Doc. 53) and moved to stay this action and hold it in abeyance (Doc. 50). For the reasons 20 that follow, the Court accepts and adopts the R&R, and denies the petition and motions. 21 I. Background 22 On May 10, 2007, Petitioner was indicted on four counts of sexual conduct with a 23 minor, four counts of child molestation, and two counts of sexual abuse of a minor in the 24 Coconino County Superior Court, Case No. CR2007-0429. (Doc. 14-1, Exh. C.) 25 Petitioner was found guilty by a jury on all charges. (Doc. 14-5, Exh. UU.) On July 23, 26 2008, Petitioner was sentenced to a twenty-year term of imprisonment for each count of 27 sexual conduct with a minor; a seventeen-year term for each count of child molestation; 28 and a five-year term for each count of sexual abuse. The sentencing court set forth a 1 scheme under which certain sentences would run concurrent with others. (See Doc. 14-5, 2 Exhs. ZZ, HHH.) 3 Petitioner timely filed a notice of appeal, and appellate counsel filed an opening 4 brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that he had searched 5 the record on appeal and found no question of law that was not frivolous (Doc. 14-5, Exh. 6 CCC). Petitioner filed a pro per supplemental brief. (Doc. 14-1, Exh. DDD.) The Arizona 7 Court of Appeals directed supplemental briefing on whether the convictions for child 8 molestation and sexual conduct with a minor violated double jeopardy (Doc. 31-1, Exh. 9 ZZZZ), and Petitioner’s counsel filed a supplemental brief (Doc. 14-5, Exh. EEE). In a 10 memorandum decision, the appellate court vacated the convictions and sentences 11 imposed for the four convictions for molestation of a child and affirmed Petitioner’s 12 remaining convictions and sentences. (Doc. 14-5, Exh. HHH); State v. Borrud, 2009 WL 13 1883931, at *1 (Ariz. Ct. App. Jun. 30, 2009). Following the denial of a motion for 14 reconsideration, Petitioner sought review by the Arizona Supreme Court, which was 15 summarily denied on April 27, 2010. (Doc. 14-5, Exh. KKK.) 16 Petitioner timely initiated post-conviction relief proceedings pursuant to Rule 32 17 of the Arizona Rules of Criminal Procedure. Appointed counsel filed a notice with the 18 trial court stating that he was unable to find any colorable issue or claim to raise in the 19 proceeding. Petitioner filed a pro per petition (Doc. 14-5, Exh. NNN) and motion for 20 leave to file a lodged 176-page petition (Doc. 14-5, Exh. OOO). The state moved to strike 21 the 176-page petition, arguing that it unnecessarily exceeded the permissible page limits. 22 (Doc. 14-5, Exh. QQQ.) The request was denied and the lodged petition was stricken. 23 (Doc. 14-5, Exhs. XXX, YYY.) Petitioner filed a pro per Rule 32 petition, which was 24 summarily denied. (Doc. 14-5, Exhs. ZZZ, BBBB.) Following the denial of a motion for 25 reconsideration, Petitioner sought review by the Arizona Court of Appeals, the Arizona 26 Supreme Court, and United States Supreme Court; all summarily denied review. 27 During the pendency of his first Rule 32 proceeding, Petitioner filed a Petition for 28 Special Action with the Arizona Court of Appeals. The petition was summarily denied. 2 1 The appellate court denied a motion for reconsideration and transferred his petition for 2 review to the Arizona Supreme Court. That petition was summarily denied. (Doc. 38, 3 Supp. Exhs. A-E.) 4 On March 30, 2015, Petitioner filed a timely federal habeas petition in this Court, 5 raising nine grounds for relief. (Docs. 1.) Respondents filed a limited answer (Doc. 14), 6 and submitted supplemental discovery (Docs. 21, 25, 31, 38). Petitioner filed a 120 page 7 Reply (Doc. 35), and a 25 page motion for evidentiary hearing (Doc. 27). 8 Following review, the Magistrate Judge issued a 46 page Report and 9 Recommendation (Doc. 41) in which he denied the motion for evidentiary hearing, and 10 recommended that the petition be dismissed with prejudice. The Magistrate Judge found 11 that Petitioner had failed to fairly present and exhaust his claims in Grounds One through 12 Five and Seven through Nine, and the claims were procedurally defaulted. He further 13 found that Petitioner had failed to show cause and prejudice or actual innocence to excuse 14 the procedural default of those claims. He also found that Ground Six failed on the 15 merits, in that Petitioner had failed to show that prejudice resulted from the multiplicitous 16 indictment. 17 II. Standard of Review 18 A district judge “may accept, reject, or modify, in whole or in part, the findings or 19 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). When a party files 20 a timely objection to an R&R, the district judge reviews de novo those portions of the 21 R&R that have been “properly objected to.” Fed. R. Civ. P. 72(b). A proper objection 22 requires specific written objections to the findings and recommendations in the R&R. See 23 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); 28 U.S.C. § 24 636(b)(1). It follows that the Court need not conduct any review of portions to which no 25 specific objection has been made. See Reyna-Tapia, 328 F.3d at 1121; see also Thomas 26 v. Arn, 474 U.S. 140, 149 (1985) (discussing the inherent purpose of limited review is 27 judicial economy). Further, a petitioner is not entitled as of right to de novo review of 28 evidence or arguments which are raised for the first time in an objection to the R&R, and 3 1 the Court’s decision to consider them is discretionary. United States v. Howell, 231 F.3d 2 615, 621-622 (9th Cir. 2000). 3 III. Discussion Objection to the R&R1 4 A. 5 “Petitioner objects to each of the Magistrate Judge’s findings and 6 recommendations which would, if accepted by the District Court, lead to dismissal of the 7 Petition or denial of the Writ of Habeas Corpus.” (Doc. 53 at 4.) In his 98 page objection, 8 of which 73 pages is comprised of briefing, Petitioner specifies six categories of 9 objections: (1) “Objection to ‘Factual Background’ (Doc. 41, at 1-2)”; (2) “Objection to 10 ‘Proceedings at Trial’ (Doc. 41, at 3-5)”; (3) “Objection to ‘Challenges to Indictment’ 11 (Doc. 41, at 3)”; (4) “Objection to ‘Proceedings on Direct Appeal’ (Doc. 41, at 5-6)”; (5) 12 “Objection to ‘Proceedings on Post-Conviction Relie[f]’ (Doc. 41, 6-8)”; and (6) 13 “Objections to ‘Exhaust, Procedural Default and Procedural Bar’ (Doc. 41, at 11-43).” 14 (Doc. 53.) 15 Petitioner’s objection is not “proper.” A proper objection to an R&R requires 16 specific objections. Here, the objection is almost a complete reiteration of the issues that 17 were addressed in detail by the Magistrate Judge. To the extent Petitioner cites particular 18 portions of the R&R, those citations are not specific objections - they are mere 19 introductory conduits to untethered arguments. In fact, the Court can only decipher two 20 portions of the R&R to which Petitioner does not categorically object to, in that Petitioner 21 did not broadly cite to 5 pages - the Magistrate Judge’s procedural summary of the instant 22 habeas proceeding (Doc. 41 at 9-10), and the finding as to Ground Six (Doc. 41 at 44-46). 23 The inherent purpose of the specificity requirement is judicial economy, which is 24 defeated by an objection that effectively seeks de novo review of the entire R&R. See 25 Thomas v. Arn, 474 U.S. 140, 149 (1985); Reyna-Tapia, 328 F.3d at 1121. In other 26 words, by objecting “to each and every adverse finding by the Magistrate Judge in the 27 1 28 Petitioner’s second amended objection (Doc. 53) has been treated as the operative filing, and supersedes his prior incomplete objections (Docs. 45, 49). 4 1 Report and Recommendation” (Doc. 53-1 at 23), Petitioner’s objection serves to have the 2 same effect as if Petitioner had failed to object entirely. As a result, the Court has no 3 obligation to review Petitioner’s objections to the R&R, and could summarily adopt it in 4 full. See Thomas, 474 U.S. at 149; Gutierrez v. Flannican, 2006 WL 2816599, at *2 (D. 5 Ariz. Sept. 29, 2006) (general objections to the R&R “are tantamount to no objection at 6 all.”). Nevertheless, the Court has considered Petitioner’s objection and reviewed de novo 7 the R&R’s conclusions. 8 First, the Court agrees with the R&R’s finding that, with the exception of Ground 9 Six, Petitioner did not exhaust his claims in state court. In short, in order to satisfy the 10 exhaustion requirement, Petitioner’s federal claims must have been fairly presented to the 11 Arizona Court of Appeals on direct appeal or his post-conviction relief proceedings, or 12 have been actually considered by the state courts. As addressed in the R&R in detail, that 13 did not occur here. A return to state court would be futile; the time has passed to seek 14 post-conviction relief in state court under Ariz. R. Crim. P. 32.4(a), and his claims would 15 be precluded from review under Ariz. R. Crim. P. 32.2 because they could have been 16 raised on direct appeal or in prior post-conviction proceedings. The R&R discussed that 17 Petitioner has not shown that he satisfies any of the exceptions to the timeliness or 18 preclusion rules. See Ariz. R. Crim. P. 32.4(a) and 32.2(b) (citing the exceptions listed in 19 Ariz. R. Crim. P. 32.1). Petitioner does not seek to present any new evidence or law, nor 20 does he raise a claim of actual innocence. See Ariz. R. Crim. P. 32.1(e), (g), (h). As a 21 result, Petitioner’s unexhausted claims are procedurally defaulted. 22 The Court also agrees with the R&R that Petitioner does not establish “cause and 23 prejudice” to excuse the procedural default of his claims, nor that his argument 24 challenging the sufficiency of the evidence falls within the “fundamental miscarriage of 25 justice” exception. See Coleman v. Thompson, 501 U.S. 722, 731 (1991) (discussing 26 “cause” and “prejudice”) overruled on other grounds by Martinez v. Ryan, 132 S. Ct. 27 1309 (2012); Schlup v. Delo, 513 U.S. 298, 327 (1995) (discussing “fundamental 28 miscarriage of justice”). Petitioner argues in his objection that the procedural default 5 1 should be excused due to his pro se status, the state court’s improper rejection of his 2 oversized petition, and the ineffective assistance of counsel he received at trial, on appeal, 3 and in post-conviction relief proceedings. However these contentions were correctly 4 addressed by the Magistrate Judge. Petitioner’s objections are rejected. 5 Lastly, the Court concurs with the R&R’s finding that Petitioner’s exhausted 6 double jeopardy claim in Ground Six fails on the merits. Petitioner claims in Ground Six 7 that his double jeopardy rights were violated by his prosecution under an indictment that 8 included counts on both the greater offense of sexual conduct with a minor and the lesser 9 included offenses of child molestation, founded upon the same conduct.2 On appeal, the 10 state court rejected this claim citing to Ohio v. Johnson, 467 U.S. 493, 500 (1984), which 11 held that “the State is not prohibited by the Double Jeopardy Clause from charging 12 respondent with greater and lesser included offenses and prosecuting those offenses in a 13 single trial.” Petitioner does not show how this decision “was contrary to, or involved an 14 unreasonable application of, clearly established Federal law, as determined by the 15 Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). 16 B. Motion for Stay and Abeyance 17 Next, Petitioner has filed a Motion for Stay and Abeyance (Doc. 44), along with 18 supporting notices (Docs. 55, 56). Therein, Petitioner requests that this action be stayed 19 and his timely habeas petition be held in abeyance while he attempts to present his 20 unexhausted federal claim in Ground One in state court through the adjudication of his 21 “Motion for Writ of Error Coram Nobis Nunc Pro Tunc.” This request will be denied. 22 A district court has limited discretion to stay and hold in abeyance a federal habeas 23 petition containing an unexhausted claim so that the petitioner may return to state court to 24 exhaust it. See Rhines v. Weber, 544 U.S. 269, 276-77 (2005); Mena v. Long, 813 F.3d 25 907, 912 (9th Cir. 2016). Here, Petitioner’s unexhausted claims are procedurally barred 26 2 27 28 As noted in the R&R, the Court observes that this claim is distinct from any claim that his convictions violated double jeopardy, which would be rendered moot by the decision of the Arizona Court of Appeals vacating Petitioner’s convictions and sentences on the lesser included offenses. 6 1 from review and he no longer has state remedies available to consider them. See Cassett 2 v. Stewart, 406 F.3d 614, 621, n.5 (9th Cir. 2005). Petitioner’s motion for writ is an 3 otherwise entitled successive petition for post-conviction review, which for the reasons 4 above, is precluded. See Ariz. R. Crim. P. 32.3; see also e.g., State v. Bolden, 2016 WL 5 4247736 *1 (Ariz. Ct. App. Aug. 11, 2016) (finding superior court properly treated 6 Bolden’s “Writ of Coram Nobis—Writ of Error… as a notice of post-conviction relief”); 7 State v. Gibson, 2013 WL 709628, *1 (Ariz. Ct. App. Fev. 26, 2013) (“Gibson filed a 8 ‘Writ of Coram Nobis, Writ of Error,’ which the trial court correctly treated as a 9 successive petition for post-conviction relief.”). The stay and abeyance procedure is not 10 appropriate under these circumstances. 11 C. Motion for Judicial Notice 12 Lastly, Petitioner has filed a “Motion for Judicial Notice Re: Petitioner’s Special 13 Action Pleadings” (Doc. 54) asking that the Court take notice of Westmoreland v. 14 Warden, 817 F.3d 751, 754 (11th Cir. 2016) in considering whether he exhausted his 15 federal claims by filing a petition for special action. In Westmoreland, the Eleventh 16 Circuit’s held that “a Georgia extraordinary motion for new trial can be an ‘application 17 for State post-conviction or other collateral review’” under 28 U.S.C. § 2244(d)(2). 18 Westmoreland is inapplicable, and Petitioner’s motion will be denied. 19 Whether a pending action tolls the statute of limitations is not synonymous with 20 whether the action serves as a proper vehicle for claim exhaustion. In any event, in 21 Arizona, a petition for special action is the equivalent of a petition for writ of mandate, 22 which is not a request for collateral review. See Ariz. R. P. Special Actions 1, 17B Ariz. 23 Rev. Stat; Hardiman v. Galaz, 58 F.App’x. 708, 710 (9th Cir. 2003); Meadows v. 24 Jacquez, 242 F. App’x 453, 455 (9th Cir. 2007). Cf. Westmoreland, 817 F.3d at 753-54 25 (noting that the “Georgia Supreme Court has explained that an extraordinary motion for 26 new trial is one of three ways to ‘challenge a conviction after it has been affirmed on 27 direct appeal.’”). As addressed in the R&R, mere presentation of claims in an 28 extraordinary, discretionary proceeding such as the special action is not sufficient for 7 1 exhaustion. The state court must have actually considered the claims in the special action 2 proceeding. In this instance, the Arizona Court of Appeals did not do so. (See Doc. 38, 3 Supp. Exh. B.) 4 IV. Conclusion 5 Having reviewed the record as a whole, and finding none of Petitioner’s objections 6 have merit, the R&R will be adopted in full. Petitioner’s claims in Grounds One through 7 Five and Seven through Nine are procedurally barred from federal habeas review. See 28 8 U.S.C. § 2254(b). Petitioner’s remaining claim in Ground Six fails on the merits. See 28 9 U.S.C. § 2254(d). Therefore, dismissal of the petition with prejudice is warranted. 10 Accordingly, 11 IT IS ORDERED: 12 1. 13 That the Magistrate Judge’s Report and Recommendation (Doc. 41) is accepted and adopted by the Court; 14 2. That the Motion for Delayed Filing (Doc. 52) is granted; 15 3. That the Motion for Clarification (Doc. 50) is denied as moot; 16 4. That the Motion for Stay and Abeyance (Doc. 44) and the Motion for 17 18 19 20 Judicial Notice (Doc. 54) are denied; 5. That the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) is denied and this action is dismissed with prejudice; 6. That a certificate of appealability and leave to proceed in forma pauperis on 21 appeal are denied because the dismissal of the Petition is justified by a plain procedural 22 bar and jurists of reason would not find the procedural ruling debatable, and because 23 jurists of reason would not find the court’s assessment of the constitutional claim 24 debatable or wrong; and 25 7. That the Clerk of Court shall terminate this action. 26 Dated this 21st day of March, 2017. 27 Honorable Steven P. Logan United States District Judge 28 8

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