Hawkins #258870 v. Ryan et al

Filing 32

ORDER adopting 28 Report and Recommendations. Michael Allen Hawkins' Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody is DENIED. (Doc. 1 .) Pursuant to Rule 11(a) of the Rules Governing Section 2 254 Cases, in the event Petitioner files an appeal, the Court declines to issue a certificate of appealability. The Clerk of Court shall docket accordingly and close the case file in this matter. Signed by Senior Judge Raner C Collins on 9/4/2019. (See attached Order for complete information) (DLC)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Michael Allen Hawkins,

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Petitioner,

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ORDER

v.

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No. CV-16-00207-TUC-RCC

Charles L Ryan, et al.,

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Respondents.

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On July 10, 2019, Magistrate Judge Bruce G. Macdonald issued a Report and

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Recommendation (“R&R”) in which he recommended that this Court deny Petitioner

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Michael Allen Hawkins’ Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus

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by a Person in State Custody (Doc. 1). (Doc. 28.) Petitioner filed an objection (Doc. 28)

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and Respondents filed a response (Doc. 31). Upon review, the Court adopts the

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Magistrate Judge’s R&R and denies the § 2254 Habeas Petition.

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I.

Report and Recommendation: Standard of Review

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The standard the District Court uses when reviewing a magistrate judge’s R&R is

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dependent upon whether a party objects: where there is no objection to a magistrate’s

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factual or legal determinations, the district court need not review the decision “under a de

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novo or any other standard.” Thomas v. Arn, 474 U.S. 140, 150 (1985). However, when

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a party objects, the district court must “determine de novo any part of the magistrate

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judge’s disposition that has been properly objected to. The district judge may accept,

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reject, or modify the recommended disposition; receive further evidence; or return the

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matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3); see also 28

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U.S.C. § 636(b)(1). Moreover, “while the statute does not require the judge to review an

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issue de novo if no objections are filed, it does not preclude further review by the district

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judge, sua sponte or at the request of a party, under a de novo or any other standard.”

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Thomas, 474 U.S. at 154.

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II.

Factual and Procedural Background

Petitioner does not dispute the R&R’s factual and procedural history, as such the

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Court adopts the facts as stated in the R&R and will not reiterate them here.

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III.

Magistrate Judge’s Conclusions

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The Magistrate Judge organized Petitioner’s numerous arguments into six categories

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alleging constitutional violations. The first two claims concern (1) a violation of

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Petitioner’s speedy trial rights and (2) alleged coerced testimony. The last four assert

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various claims of ineffective assistance of counsel.

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a. Speedy Trial Calculation

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First, Judge Macdonald found that Petitioner’s claim that his Federal constitutional

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rights were violated when his trial was prolonged past that required under the speedy trial

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provisions was not properly presented in the State court. This was because his speedy

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trial argument was never before the state court as a Federal constitutional claim; instead

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Petitioner asserted that it violated the Arizona state procedural rules. The Magistrate

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Judge found the claim was technically exhausted and procedurally defaulted.

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b. Coerced Testimony

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Second, the judge determined that Petitioner’s claim that certain testimony was

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coerced was expressly denied by the Arizona Court of Appeals as procedurally barred. As

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such, the Court could not consider this claim. Furthermore, Petitioner presented his claim

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as newly-discovered evidence, not a constitutional claim. Judge Macdonald noted that a

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claim may only be heard in federal habeas if the state court was made aware of the

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constitutional argument. Although Petitioner mentioned the words Due Process, they

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were raised superficially in the context of his state claim. Moreover, he did not raise the

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issue to the Court of Appeals, but simply told the appellate court to look at the argument

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in his post-conviction petition. His failure to do more than mention the constitution and

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Due Process issues meant the state courts were not granted the opportunity to fairly

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review these claims. Like the first claim, the Magistrate Judge found this argument was

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procedurally barred.

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c. Ineffective Assistance of Counsel: Exculpatory Voicemails

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In Plaintiff’s first ineffective assistance of counsel claim, he alleges that trial counsel

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was ineffective for failing to admit and elicit exculpatory voicemail evidence. The

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Magistrate Judge decided that since Plaintiff had merely referred the state appellate court

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to his arguments in his filing for post-conviction relief, he had not fairly presented these

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claims to the state court, and they were technically exhausted and procedurally defaulted.

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d. Ineffective Assistance of Counsel: Juror Misconduct, Prosecutorial
Misconduct,

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The Magistrate Judge then found that Petitioner’s claim that his constitutional rights

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were violated because of juror misconduct and various instances of prosecutorial

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misconduct were not viable because Petitioner did not present his argument directly in his

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§ 2254 habeas petition, but rather suggested that the Court peruse his state court

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documents to find the details of his argument. The Magistrate Judge stated that the

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District Court has no duty to discover Petitioner’s arguments for him. See Christian Legal

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Soc. Chapter of Univ. of Cal. V. Wu, 626 F.3d483, 488 (9th Cir. 2010) (citations omitted)

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(“Judges are not like pigs, hunting for truffles buried in briefs.”).

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Moreover, at the state level, Petitioner was also not permitted to incorporate by

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reference his lower court argument, and because he had done so his juror misconduct

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claim was not fairly presented to the state court.

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e. Ineffective Assistance of Counsel: Miscellaneous Claims

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Finally, Judge Macdonald attempted to make sense of Petitioner’s remaining nineteen

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ineffective assistance of counsel claims and gave Petitioner the benefit of the doubt that

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these were raised in his Rule 32 petition for post-conviction relief. However, Petitioner’s

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petition for review to the Arizona Court of Appeals again attempted to incorporate his

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Rule 32 arguments by reference. So, like the other ineffective assistance of counsel

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claims, the miscellaneous claims were also technically exhausted and procedurally

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defaulted.

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For each of these claims the Magistrate Judge found Petitioner had not shown cause

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or prejudice to excuse the defaulted claims.

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IV.

Petitioner’s Objections

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Petitioner’s objection to the R&R does not discuss how the Magistrate Judge’s

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conclusions were incorrect. He merely asserts that his claims have some merit and he is

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unsure what the District Court wants from him to enable the Court to proceed on the

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merits. He claims he does not understand exhaustion, and he lacks the legal acumen to

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present his claims sufficiently. However, the objection never challenges the fact that

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Petitioner’s state appeal incorporated by reference his prior arguments.

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Petitioner also argues that there was cause and prejudice but provides no reason why

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his federal claims could not have been presented to the state appellate court other than his

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ignorance. Instead he reasserts the prejudice he believes he suffered from the various

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alleged constitutional errors and claims these weighed to his substantial disadvantage.

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V.

Standard of Review

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For this Court to review Petitioner’s habeas petition, he must demonstrate that he has

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exhausted his state remedies by “fairly presenting” the same issues to the state’s highest

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court. 28 U.S.C. § 2254(b)(1)(A); see also Coleman v. Thompson, 501 U.S. 722, 731

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(1991). To “fairly present” an issue, petitioner must “describe[] the operative facts and

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legal theory upon which his claim is based.” Duncan v. Henry, 513 U.S. 364, 370 n.1

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(1995) (quoting Tamapua v. Shimoda, 796 F.2d 261, 262 (9th Cir. 1986).

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Furthermore, Petitioner must illustrate the factual and legal basis for his federal

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claims within the § 2254 habeas petition, and the District Court is not obliged “to review

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the entire state record of habeas corpus petitioners to ascertain whether facts exist which

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support habeas relief.” Adams v. Armontrout, 897 F.2d 332, 333–34 (8th Cir. 1990); see

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also Williams v. Kullman, 722 F.2d 1048, 1051 (2nd Cir. 1983) (“despite our firm

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conviction that the pleading requirements in habeas corpus proceedings should not be

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overly technical and stringent, it would be unwise to saddle district judges with the

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burden of reading through voluminous records and transcripts in every case”); Moore v.

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Swenson, 361 F. Supp. 1346, 1351 (E.D. Mo. 1973) (“Petitioner must set out his grounds

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specifically without reference to another lengthy document.”); but see Regains v. Robert,

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No. 11 C 5445, 2012 WL 2513935, at *6 (N.D. Ill. June 27, 2012) (allowing review of

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habeas claim but denying relief when petitioner specifically requested the court

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incorporate arguments from the state appeal).

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In addition, even when raised in the state supreme court, “incorporation by reference”

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does not exhaust a constitutional claim. See Baldwin v. Reese, 541 U.S. 27, 30-31 (2004);

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Wood v. Ryan, 693 F.3d 1104, 1117 (9th Cir. 2012) (Arizona Rule of Criminal Procedure

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32.9(c)(1)(iv) prohibits the appeal of an issue if “the issues and material facts supporting

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a claim” are merely incorporated by reference).

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Furthermore, “it is well established that ‘ignorance of the law, even for an

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incarcerated pro se petitioner” is no excuse for failing to follow procedural rules. Marsh

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v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (quoting Fisher v. Johnson, 174 F.3d

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710, 714 (9th Cir. 1999)); see also In re Marriage of Williams, 200 P.3d 1043, 1046

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(Ariz. Ct. App. 2008).

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VI.

Discussion

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Petitioner needed to present reasons why he failed to raise the federal issue at the state

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court appellate level to demonstrate cause for his failure to present his claims to the

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highest state court. He has made no such showing. In addition, he acknowledges he

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incorporated his arguments by reference, but claims he simply does not know how to

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present these claims effectively.

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The Court finds that Petitioner has not demonstrated that the state court determination

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was contrary to or an unreasonable application of federal law. See 28 U.S.C. § 2254(d);

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see also Cullen v. Pinholster, 563 U.S. 170 (2011). Neither does his objection raise any

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viable argument that the Magistrate Judge’s determinations were legally incorrect.

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Petitioner was required to raise the factual basis for his constitutional claims at the state

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level prior to bringing them in habeas. See Baldwin, 541 U.S. at 33 (2004); see also

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Hivala v. Wood, 195 F.3d 1098 (9th Cir. 1999), cert. denied, 529 U.S. 1009 (2000). The

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Court finds Magistrate Judge Macdonald’s conclusions well-reasoned and adopts them.

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Upon de novo review, IT IS ORDERED:

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1. Magistrate Judge Macdonald’s Report and Recommendation is ADOPTED. (Doc.

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2. Michael Allen Hawkins’ Petition Under 28 U.S.C. § 2254 for a Writ of Habeas
Corpus by a Person in State Custody is DENIED. (Doc. 1.)

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3. Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, in the event

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Petitioner files an appeal, the Court declines to issue a certificate of appealability

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because reasonable persons could not “debate whether (or, for that matter, agree

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that) the petition should have been resolved in a different manner or that the issues

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presented were adequate to deserve encouragement to proceed further.” See Slack

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v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotations omitted).

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4. The Clerk of Court shall docket accordingly and close the case file in this matter.
Dated this 4th day of September, 2019.

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