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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UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA

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Michael Gerard Schottenbauer,

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Petitioner,
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v.
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Charles L. Ryan, et al.,
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Respondents.
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______________________________________ )

CV-15-017-TUC-DCB

ORDER

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This matter was referred to the United States Magistrate Judge

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pursuant to

28 U.S.C. §636(b) and the local rules of practice of this

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Court for a Report and Recommendation (R&R) on the Petition for Writ of

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Habeas Corpus pursuant to 28 U.S.C. §2254. Before the Court is the

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Magistrate Judge’s Report and Recommendation (Doc. 16), which recommends

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that

the

Petition

be

denied

and

dismissed.

The

Petitioner

filed

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Objections to the Report and Recommendation. (Doc. 21.)

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SUMMARY

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Petitioner was convicted in Pima County Superior Court, case #CR-

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47264, of two counts of child molestation and one count of sexual conduct

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with a minor under the age of fourteen. He was sentenced to consecutive

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prison terms totaling 39 years’ imprisonment. In his Petition, Petitioner

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names Charles Ryan as Respondent and the Arizona Attorney General as an

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Additional Respondent Petitioner raises four grounds for relief. In

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Ground One, Petitioner alleges he was denied his Fourteenth Amendment

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right to due process because the trial court refused to suppress his

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allegedly involuntary confession. In Grounds Two, Three, and Four, he

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asserts that he was denied his Sixth Amendment right to the effective

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assistance of counsel.

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STANDARD OF REVIEW

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When objection is made to the findings and recommendation of a

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magistrate judge, the district court must conduct a de novo review.

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

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OBJECTIONS

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Primarily, Petitioner objects to the R&R because the Magistrate

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Judge

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requisite

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painstakingly

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Petitioner and point-by-point addressed each one. McQuiggin v. Perkins,

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133 S.Ct. 1924 (2013).

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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:

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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

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the

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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)

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(R&R at 2.)

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On January 15, 2015, Schottenbauer filed the pending petition for

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writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1) His petition

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consists of four claims, which raise in turn the arguments he made in his

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direct appeal and his first, second, and third post-conviction relief

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proceedings. Id. He claims (1) the trial court should have suppressed his

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involuntary confession, (2) trial counsel was ineffective for (a) failing

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to

call

his

friends,

the

Van

Dykes,

to

testify,

(b)

failing

to

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investigate the backgrounds of the state’s witnesses, and (c) failing to

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investigate and argue the totality of the circumstances surrounding the

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false allegations and his coerced confession, (3) trial counsel was

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ineffective for (a) failing to argue that his sister, Elizabeth, was a

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state actor when she coerced him into confessing, (b) failing to call his

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friends, the Van Dykes, to testify, and (c) failing to call a brain

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expert to testify about his motorcycle injury, and (4) trial counsel was

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ineffective for failing to evaluate properly the state’s plea offer.Id.

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Here, there is ample evidence of guilt apart from the questionable

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evidence presented by Petitioner: At trial, the victim related in detail

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the abuse that occurred. (Doc. 12-2, p. 16). She remembered what she had

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been wearing, described the color and pattern of the bed sheets, and gave

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a detailed timeline of the abuse that occurred. Id. Schottenbauer’s

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videotaped confession corroborated her testimony. He admitted to the

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abuse, said “he was very sorry,” and reported “I don’t even feel like I

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deserve to be alive right now.” (Doc. 12-2, pp. 10, 11, 15) A reasonable

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juror

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Schottenbauer’s videotaped confession was sincere. See (Doc. 12-2, p. 29)

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(“[E]very indication is that appellant was remorseful and that he was

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doing what his sister had told him to do, that is to tell the truth.”).

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The R&R concluded that Schottenbauer has not presented “evidence

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of innocence so strong that a court cannot have confidence in the outcome

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of [his] trial.” See Stewart v. Cate, 757 F.3d 929, 937-938 (9th Cir.

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2014). His allegation of “actual innocence” is insufficient to excuse his

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failure to file a timely petition.

could

have

believed

the

victim’s

testimony

and

concluded

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This Court absolutely agrees with the R&R. The Schlup v. Delo, 513

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U.S. 298 (1995) standard is demanding. The gateway should open only when

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a petition presents “evidence of innocence so strong that a court cannot

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have confidence in the outcome of the trial unless the court is also

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satisfied that the trial was free of nonharmless constitutional error.”

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Id. at 316.

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The Motion for Appointment of Counsel will also be denied because

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Petitioner has more than adequately pursued this action without the need

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for legal counsel. “A finding of exceptional circumstances requires an

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evaluation of both the likelihood of success on the merits and the

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ability of the petitioner to articulate his claims pro se in light of the

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complexity

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dispositive and both must be viewed together before reaching a decision.”

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Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).

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of

the

issues

involved.

Neither

of

these

factors

CONCLUSION
Accordingly, after conducting a de novo review of the record,
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is

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IT IS ORDERED that the Court ADOPTS the Report and Recommendation

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(Doc. 16) in its entirety.

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Petitioner are OVERRULED. The Motion for Appointment of Counsel (Doc. 20)

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is DENIED.

The Objections (Doc.21) raised by the

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IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus

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(Doc. No. 1) is DENIED and this action is DISMISSED with prejudice.

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Final Judgment to enter separately by the Clerk’s Office. A Certificate

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of Appealability is likewise DENIED.

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DATED this 28th day of October, 2015.

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This action is closed.