Schottenbauer #114478 v. Ryan et al

Filing 22

ORDER ADOPTING REPORT AND RECOMMENDATION 16 in its entirety. The 21 Objections raised by the Petitioner are OVERRULED. The 20 Motion for Appointment of Counsel is DENIED. IT IS FURTHER ORDERED that the 1 Petition for Writ of Habeas Corpus is DENIED and this action is DISMISSED with prejudice. Final Judgment to enter separately by the Clerk's Office. A Certificate of Appealability is likewise DENIED. This action is closed. Signed by Senior Judge David C Bury on 10/28/2015. (KEP)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF ARIZONA 6 7 Michael Gerard Schottenbauer, 8 9 10 11 12 ) ) Petitioner, ) v. ) ) ) Charles L. Ryan, et al., ) ) Respondents. ) ______________________________________ ) CV-15-017-TUC-DCB ORDER 13 This matter was referred to the United States Magistrate Judge 14 pursuant to 28 U.S.C. §636(b) and the local rules of practice of this 15 Court for a Report and Recommendation (R&R) on the Petition for Writ of 16 Habeas Corpus pursuant to 28 U.S.C. §2254. Before the Court is the 17 Magistrate Judge’s Report and Recommendation (Doc. 16), which recommends 18 that the Petition be denied and dismissed. The Petitioner filed 19 Objections to the Report and Recommendation. (Doc. 21.) 20 SUMMARY 21 Petitioner was convicted in Pima County Superior Court, case #CR- 22 47264, of two counts of child molestation and one count of sexual conduct 23 with a minor under the age of fourteen. He was sentenced to consecutive 24 prison terms totaling 39 years’ imprisonment. In his Petition, Petitioner 25 names Charles Ryan as Respondent and the Arizona Attorney General as an 26 Additional Respondent Petitioner raises four grounds for relief. In 27 Ground One, Petitioner alleges he was denied his Fourteenth Amendment 28 1 right to due process because the trial court refused to suppress his 2 allegedly involuntary confession. In Grounds Two, Three, and Four, he 3 asserts that he was denied his Sixth Amendment right to the effective 4 assistance of counsel. 5 STANDARD OF REVIEW 6 When objection is made to the findings and recommendation of a 7 magistrate judge, the district court must conduct a de novo review. 8 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). 9 OBJECTIONS 10 Primarily, Petitioner objects to the R&R because the Magistrate 11 Judge 12 requisite 13 painstakingly 14 Petitioner and point-by-point addressed each one. McQuiggin v. Perkins, 15 133 S.Ct. 1924 (2013). 16 17 18 did not give weight his and reviewed evidence and allegations of consideration. On the the of innocence allegations innocence contrary, put the forth to equitably toll the period of filing the habeas petition: 27 28 2 20 21 22 23 24 25 26 R&R by Unqualifiedly, Petitioner failed to demonstrate diligence required On February 11, 1997, Schottenbauer filed his first notice of post-conviction relief. (Doc. 12-3, p. 26) The trial court summarily dismissed the petition on June 26, 1997. (Doc. 12- 4, p. 42) Schottenbauer appealed raising the claim that his sentence was cruel and unusual punishment. (Doc. 12-4, pp. 44-47) He also filed an addendum pro se in which he argued three of the state’s witnesses were mentally unstable. (Doc. 12-4, pp. 12-28) The Arizona Court of Appeals granted review but denied relief on April 30, 1998. (Doc. 12-5, p. 16) The court noted that Schottenbauer’s claims against the state’s witnesses were based on information he had well before trial. (Doc. 12-5, p. 17) More than eleven years later, on February 18, 2010, Schottenbauer filed a second notice of post-conviction relief. (Doc. 12-5, p. 30) He argued he uncovered “newly discovered facts” in case reports and victim interview transcripts that would have constituted reasonable doubt had they been raised at trial. (Doc. 12-5, p. 31) He further argued he had “new evidence” from his son, Christopher, that 19 the 1 the victim lied so she could live with her mother and that Elizabeth Schottenbauer colluded with the detectives to coerce the defendant’s confession. (Doc. 12-5, p. 31) The trial court summarily dismissed the notice on March 5, 2010 because Schottenbauer “raise[d] no new issue, legal or factual, that could not have been addressed through his first Petition for Post-Conviction Relief.” (Doc. 12-5, p. 30) 2 3 4 5 (R&R at 2.) 6 On January 15, 2015, Schottenbauer filed the pending petition for 7 writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1) His petition 8 consists of four claims, which raise in turn the arguments he made in his 9 direct appeal and his first, second, and third post-conviction relief 10 proceedings. Id. He claims (1) the trial court should have suppressed his 11 involuntary confession, (2) trial counsel was ineffective for (a) failing 12 to call his friends, the Van Dykes, to testify, (b) failing to 13 investigate the backgrounds of the state’s witnesses, and (c) failing to 14 investigate and argue the totality of the circumstances surrounding the 15 false allegations and his coerced confession, (3) trial counsel was 16 ineffective for (a) failing to argue that his sister, Elizabeth, was a 17 state actor when she coerced him into confessing, (b) failing to call his 18 friends, the Van Dykes, to testify, and (c) failing to call a brain 19 expert to testify about his motorcycle injury, and (4) trial counsel was 20 ineffective for failing to evaluate properly the state’s plea offer.Id. 21 Here, there is ample evidence of guilt apart from the questionable 22 evidence presented by Petitioner: At trial, the victim related in detail 23 the abuse that occurred. (Doc. 12-2, p. 16). She remembered what she had 24 been wearing, described the color and pattern of the bed sheets, and gave 25 a detailed timeline of the abuse that occurred. Id. Schottenbauer’s 26 videotaped confession corroborated her testimony. He admitted to the 27 28 3 1 abuse, said “he was very sorry,” and reported “I don’t even feel like I 2 deserve to be alive right now.” (Doc. 12-2, pp. 10, 11, 15) A reasonable 3 juror 4 Schottenbauer’s videotaped confession was sincere. See (Doc. 12-2, p. 29) 5 (“[E]very indication is that appellant was remorseful and that he was 6 doing what his sister had told him to do, that is to tell the truth.”). 7 The R&R concluded that Schottenbauer has not presented “evidence 8 of innocence so strong that a court cannot have confidence in the outcome 9 of [his] trial.” See Stewart v. Cate, 757 F.3d 929, 937-938 (9th Cir. 10 2014). His allegation of “actual innocence” is insufficient to excuse his 11 failure to file a timely petition. could have believed the victim’s testimony and concluded 12 This Court absolutely agrees with the R&R. The Schlup v. Delo, 513 13 U.S. 298 (1995) standard is demanding. The gateway should open only when 14 a petition presents “evidence of innocence so strong that a court cannot 15 have confidence in the outcome of the trial unless the court is also 16 satisfied that the trial was free of nonharmless constitutional error.” 17 Id. at 316. 18 The Motion for Appointment of Counsel will also be denied because 19 Petitioner has more than adequately pursued this action without the need 20 for legal counsel. “A finding of exceptional circumstances requires an 21 evaluation of both the likelihood of success on the merits and the 22 ability of the petitioner to articulate his claims pro se in light of the 23 complexity 24 dispositive and both must be viewed together before reaching a decision.” 25 Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). 26 27 28 of the issues involved. Neither of these factors CONCLUSION Accordingly, after conducting a de novo review of the record, 4 is 1 IT IS ORDERED that the Court ADOPTS the Report and Recommendation 2 (Doc. 16) in its entirety. 3 Petitioner are OVERRULED. The Motion for Appointment of Counsel (Doc. 20) 4 is DENIED. The Objections (Doc.21) raised by the 5 IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus 6 (Doc. No. 1) is DENIED and this action is DISMISSED with prejudice. 7 Final Judgment to enter separately by the Clerk’s Office. A Certificate 8 of Appealability is likewise DENIED. 9 DATED this 28th day of October, 2015. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 This action is closed.

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