Vasko v. Hacker-Agnew et al

Filing 30

ORDER that Magistrate Judge Boyle's Report and Recommendation 26 is ACCEPTED and ADOPTED as the Order of this Court. The Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 1 is DENIED and DISMISSED WITH PREJUDICE. Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis on appeal are DENIED because dismissal of the Petition is justified by a plain procedural bar and reasonable jurists would not find the ruling debatable. The Clerk of the Court shall terminate this action and enter judgment accordingly. Signed by Judge Diane J Humetewa on 11/18/2019. (REK)

1

NOT FOR PUBLICATION

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
Gary Vasko,

9

No. CV-17-08001-PCT-DJH
Petitioner,

10
11

v.

12

Carla Hacker-Agnew, et al.,

13

ORDER

Respondents.

14
15

Pending before the Court is pro se Petitioner’s Petition for Writ of Habeas Corpus

16

pursuant to 28 U.S.C. § 2254 (Doc. 1) to which Respondents have filed a Response

17

(Doc. 22) and Petitioner filed a Reply (Doc. 25). Following a sound analysis, Magistrate

18

Judge John Z. Boyle recommended the Petition be denied and the claims therein be

19

dismissed with prejudice. (Doc. 26). Petitioner filed an Objection (Doc. 27) to which

20

Respondents did not respond. Petitioner subsequently filed two documents, both titled

21

“Reconsideration (Supplemental)” (Docs. 28 & 29). 1

22

I.

The R&R

23

Judge Boyle’s Report and Recommendation (“R&R”) accurately identifies the

24

grounds (all of which contained numerous sub-grounds) that Petitioner advances in his

25

Petition: (1) violations of his First Amendment free speech rights; (2) violations of his

26

Fourth Amendment rights against unreasonable searches and seizures; (3) violations of his

27

1

28

The Court finds that to the extent Petitioner’s supplemental filings can be construed as
Supplemental Objections to the R&R, they are untimely. The Court has, however,
reviewed the contents of these filings, some of which was already in the record before the
Magistrate Judge, and finds their contents do not alter the conclusions herein.

1

Fifth and Fourteenth Amendment right to due process; (4) violations of his Sixth

2

Amendment right to confront and cross-examine witnesses at trial; and (5) violation of

3

right to effective counsel at every stage of his trial. (Doc. 26 at 5). After a thorough and

4

detailed analysis, Magistrate Judge Boyle found that Petitioner’s claims were unexhausted

5

but procedurally defaulted, barred, or failed on the merits. Magistrate Judge Boyle found

6

that Petitioner was not entitled to habeas corpus relief, and recommends denial of his

7

Petition and dismissal with prejudice. The Magistrate Judge further recommends denial of

8

a Certificate of Appealability because “dismissal of the Petition is justified by a plain

9

procedural bar and jurists of reason would not find the ruling debatable.” (Doc. 26 at 23).

10

The parties were advised by the Magistrate Judge that they had “fourteen (14) days from

11

the date of service of a copy of this Report and Recommendation within which to file

12

specific written objections with the Court.” (Id. at 24) (citing 28 U.S.C. § 636(b)(1);

13

Fed. R. Civ. P. 6(a), 6(b), and 72).

14

II.

Petitioner’s Objection

15

In his Objection, Petitioner asserts that he is entitled to “the whole true audible

16

recording” of his trial so that he can prove that “Navajo County…falsified and altered the

17

trial transcripts severely by 50% or more.” (Doc. 27 at 3). Petitioner generally states that

18

the R&R contains “misleading facts and lies and perjury on some statements (a lot of

19

statements)” that the “audible recording” of his trial would bring to light. (Id.) Petitioner

20

argues that if the recording is not produced, his case should be dismissed with prejudice.

21

(Id.)

22

III.

Standard of Review

23

This Court must “make a de novo determination of those portions of the report or

24

specified proposed findings or recommendations to which” a Petitioner objects. 28 U.S.C.

25

§ 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3) (“The district judge must determine de

26

novo any part of the magistrate judge’s disposition that has been properly objected to.”);

27

United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (same).

28

Further, this Court “may accept, reject, or modify, in whole or in part, the findings or

-2-

1

recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ.

2

P. 72(b)(3). At the same time, however, the relevant provision of the Federal Magistrates

3

Act, 28 U.S.C. § 636(b)(1)(C), “does not on its face require any review at all. . . of any

4

issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1989);

5

see also Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005) (“Of course, de novo

6

review of a R&R is only required when an objection is made to the R&R”). Likewise, it

7

is well-settled that “‘failure to object to a magistrate judge’s factual findings waives the

8

right to challenge those findings[.]’” Bastidas v. Chappell, 791 F.3d 1155, 1159 (9th Cir.

9

2015) (quoting Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (internal quotation

10

marks omitted) (footnote omitted)).

11

Similarly, Rule 72(b)(2) requires “specific written objections to the proposed

12

findings and recommendations.” Fed. R. Civ. P. 72(2) (emphasis added). “Although the

13

Ninth Circuit has not yet ruled on the matter, other circuits and district courts within the

14

Ninth Circuit have held when a petitioner raises a general objection to an R & R, rather

15

than specific objections, the Court is relieved of any obligation to review it.” Martin v.

16

Ryan, 2014 WL 5432133, at *2 (D. Ariz. 2014) (citing Warling v. Ryan, 2013 WL 5276367,

17

at *2 (D. Ariz. 2013) (“[A] general objection ‘has the same effect as would a failure to

18

object.’”)); Gutierrez v. Flannican, 2006 WL 2816599 (D. Ariz. 2006) (citing Goney v.

19

Clark, 749 F.2d 5, 7 (3d Cir. 1984). See also United States v. Midgette, 478 F.3d 616, 622

20

(4th Cir. 2007) (finding that “a party must object to [a] finding or recommendation. . . with

21

sufficient specificity so as reasonably to alert the district court of the true ground for the

22

objection” and citing cases standing for same proposition from the Third, Sixth, Seventh,

23

and Tenth Circuits).

24

IV.

Analysis

25

Although Petitioner does not specifically identify the factual or legal findings in the

26

R&R with which he takes issue, the Court liberally construes Petitioner’s contention that

27

he is entitled to the audio transcript of his trial proceedings as an objection to Judge Boyle’s

28

recommended dismissal of Ground One’s sub-claim that his trial transcripts were altered.

-3-

1

(See Doc. 26 at 10-11).

2

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), to

3

which this case applies, this Court may not grant a writ of habeas corpus to a state prisoner

4

on a claim adjudicated on the merits in state court proceedings unless the state court’s

5

adjudication of the claim “resulted in a decision that was contrary to, or involved an

6

unreasonable application of, clearly established Federal law, as determined by the Supreme

7

Court of the United States,” § 2254(d)(1), or unless it “was based on an unreasonable

8

determination of the facts in light of the evidence presented in the State court proceeding,”

9

§ 2254(d)(2). When conducting its analysis, this Court must review the “last reasoned state

10

court opinion.” Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). When the state’s highest

11

court denies the claim summarily, the federal court looks through to the last reasoned

12

decision. See Johnson v. Williams (Tara), 568 U.S. 289, 297 n.1 (2013).

13

As the R&R identified, Petitioner argued to the state courts that his trial transcripts

14

were so egregiously altered that they prevented Defendant from obtaining any effective

15

relief from conviction. He made similar arguments of transcript alteration in his Petition,

16

and in his Objection argues that he should receive a complete audio transcript as a result of

17

the egregious alterations of the written transcripts. As noted in the R&R, when Petitioner

18

made this claim to the state trial court, the court concluded that “Defendant did not present

19

any testimony or evidence to support his claim that the trial transcripts ‘were altered so

20

egregiously’ as to prevent Defendant from obtaining any relief from conviction.” (Doc. 22-

21

10 at 76, Ex. NNN). Accordingly, the court found that Petitioner had abandoned his claim

22

under Arizona law. (Id.) On appeal, the Petitioner argued that the trial court erred in

23

concluding he had abandoned this claim. State v. Vasko, 2017 WL 2806701, *2 (Ariz. Ct.

24

App. 2017). The Arizona Court of Appeals disagreed with Petitioner, noting that the trial

25

court had

26
27
28

reasoned that Vasko had abandoned the claims because he did not present
relevant evidence during the evidentiary hearing. Vasko counters that he
“included portions of the record in his Rule 32 petition” in support of those
claims that were “not challenged by the state.” But the purpose of an
evidentiary hearing is to provide Vasko the opportunity to prove his claims
-4-

1

3

by a preponderance of the evidence. See Ariz. R. Crim. P. 32.8(c). Vasko
made no effort to do so. And, notably, Vasko did not address the claims in
his post-hearing memorandum. We find no error in the court’s determination
that Vasko abandoned these claims.

4

Id. Magistrate Judge Boyle correctly noted that Petitioner entirely failed to address these

5

findings by the appeals court in his Petition, must less argue that the finding that he had

6

abandoned this claim was contrary to clearly established federal law. (Doc. 26 at 11). He

7

held the claim was without merit because even though Petitioner has copies of the trial

8

transcripts,2 his Petition does not specify how the transcript was altered or how he was

9

prejudiced by the alleged alterations. In his Objection, Petitioner argues that the complete

10

audio transcript would show these alterations. But Petitioner had the opportunity to

11

substantiate his claim in the state court and was not diligent in doing so. In habeas

12

proceedings, “a determination of a factual issue made by a State court shall be presumed

13

to be correct. The applicant shall have the burden of rebutting the presumption of

14

correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Furthermore,

15

where the petitioner has “failed to develop the factual basis of a claim in State court

16

proceedings, the court shall not hold an evidentiary hearing on the claim unless the

17

applicant” can at least show the claim relies on “a factual predicate that could not have

18

been previously discovered through the exercise of due diligence.”

19

2254(e)(2)(A)(ii) (emphasis added); Holland v. Jackson, 542 U.S. 649, 652–53 (2004) (per

20

curiam) (holding that new evidence can be considered so long as the petitioner “was not at

21

fault in failing to develop that evidence in state court”). The record does not show

22

Petitioner’s diligence in pursuing this claim. To the contrary, the state court found that

23

Petitioner had abandoned his claim that the trial transcript had been altered because

24

Petitioner had not substantiated those claims with any evidence during the evidentiary

25

hearing. The court, in offering Petitioner an evidentiary hearing on his claims, clearly

26

provided him opportunity to present and support his claims of transcript alteration. The

27

appellate court held the trial court did not err in its finding. Absent a showing that these

28

2

2

See 28 U.S.C.

Copies of the trial transcripts are attached as exhibits to the Respondent’s Response.
(Doc. 22, Exs. GG-JJ).
-5-

1

holdings ran contrary to clearly established federal law, which Petitioner does not make, it

2

is not the place for a federal habeas court to overturn them. The Court therefore overrules

3

Petitioner’s objection.

4

With regards to the Petition’s remaining grounds for relief, Petitioner has not

5

triggered de novo review because, as is readily apparent, his objections lack the requisite

6

specificity. Petitioner’s general objection that the R&R contains “misleading facts and lies

7

and perjury on some statements” does not provide this Court for any meaningful basis for

8

review because Petitioner has not articulated which statements in the R&R he is referring

9

to, or why he objects to these findings and conclusions. Further, where, as here, Petitioner’s

10

objections fail to identify a flaw in the R&R’s analysis, they have the same effect as would

11

a complete failure to object. Indeed, if this Court were to undertake de novo review of

12

Petitioner’s general objections, it would defeat the “obvious purpose” of the specific

13

objection requirement, which “is judicial economy—to permit magistrate judges to hear

14

and resolve matters not objectionable to the parties.” Warling, 2013 WL 5276367, at *2

15

(citing Thomas, 474 U.S. at 149; Reyna–Tapia, 328 F.3d at 1121). “Because de novo

16

review of an entire R&R would defeat the efficiencies intended by Congress, a general

17

objection ‘has the same effect as would a failure to object.’” See id. (citing Howard v. Sec’y

18

of HHS, 932 F.2d 505, 509 (6th Cir. 1991); Haley v. Stewart, 2006 WL 1980649, at *2 (D.

19

Ariz. 2006)). In light of the foregoing, the Court has no obligation to review Petitioner’s

20

general objections to the R&R. See id. at *2 (citing Thomas, 474 U.S. 149).

21

Although the Court could simply accept the R&R based upon this case law, it did

22

not. The Court reviewed the R&R, the various exhibits referenced therein, and the

23

applicable law. After so doing, the Court is left with the firm conviction that Magistrate

24

Judge Boyle’s recommendations are well taken and are supported by a correct application

25

of the law throughout.

26
27
28

Accordingly, IT IS ORDERED that Magistrate Judge Boyle’s Report and
Recommendation (Doc. 26) is ACCEPTED and ADOPTED as the Order of this Court.
IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus pursuant

-6-

1

to 28 U.S.C. § 2254 (Doc. 1) is DENIED and DISMISSED WITH PREJUDICE.

2

IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing

3

Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis

4

on appeal are DENIED because dismissal of the Petitioner is justified by a plain procedural

5

bar and reasonable jurists would not find the ruling debatable.

6
7
8

IT IS FINALLY ORDERED that the Clerk of the Court shall terminate this action
and enter judgment accordingly.
Dated this 18th day of November, 2019.

9
10
11
12

Honorable Diane J. Humetewa
United States District Judge

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-7-