Summary
noting that presentation of one set of operative facts in support of a federal claim does not properly exhaust the same federal claim based on a different set of facts
Summary of this case from Date v. SchriroOpinion
No. CV-06-804-PHX-DGC (JCG).
June 11, 2007
ORDER
Pending before the Court are Cardell Gauf's petition for writ of habeas corpus and United States Magistrate Judge Jennifer Guerin's Report and Recommendation ("R R"). Dkt. ##1, 20. The R R recommends that the Court deny the petition. Dkt. #20 at 8. Petitioner has filed objections to the R R. Dkt. #23. For the reasons set forth below, the Court will accept the R R and deny the petition.
I. Background.
II. Standard of Review.
Id. id. Id. Blakely v. Washington.28 U.S.C. § 2254see Gray v. Netherland518 U.S. 152161O'Sullivan v. Boerckel 526 U.S. 838839-46Swoopes v. Sublett Tamalini v. Stewart249 F.3d 895898-99Bland v. Cal. Dep't of Corrections20 F.3d 14691472-73 overruled on other grounds by Schell v. Witek218 F.3d 1017 1025
Procedural default may occur in two ways. First, it may occur when a state court finds a claim barred on procedural grounds that are independent of the merits of the federal claim and that provide an adequate basis for the court's decision. Harris v. Reed, 489 U.S. 255, 262 (1989). Second, it may occur when the petitioner failed to raise the claim in state court and the federal court finds that "the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred." Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991). If a petitioner's claims are procedurally defaulted, federal habeas review is precluded unless the petitioner can show that a miscarriage of justice would result if he is not allowed to bring his habeas petition or that cause and actual prejudice should excuse the default. Id. at 753.
III. Discussion.
The R R concludes that, for various reasons, Petitioner's three grounds for relief in his habeas petition were not properly exhausted in state court and are now procedurally defaulted. Dkt. #20 at 6-8. The R R states that Ground I, the ineffective assistance of trial counsel claim, was not raised properly in state court because Petitioner made the argument in his petition for review of the trial court's denial of his Rule 32 petition, but did not make the argument in the Rule 32 petition itself. Id. at 6-7. Ground II, the claim for ineffective assistance of appellate counsel, was also raised for the first time in the petition for review to the Arizona Court of Appeals. Id. at 7. Ground III, Petitioner's argument that his sentence violated Blakely, was not fairly presented to the Arizona courts both because Petitioner did not explicitly indicate the federal nature of his claim and because he did not raise the issue in his petition for review to the Arizona Court of Appeals. Id. at 7-8.
Petitioner does not specifically object to the R R, arguing instead that his petition was dismissed "on procedural grounds beyond his control" because he was "without mandated, adequate, effective, and meaningful acces[s] to court." Dkt. #23 at 2 (citing Bounds v. Smith, 430 U.S. 817, 822 (1977); Gluth v. Kangas, 951 F.2d 1504 (9th Cir. 1991)). Yet Petitioner never explains why he believes the R R mistakenly found that his claims were procedurally defaulted. Non-specific objections to a magistrate's recommendation are functionally equivalent to no objections at all. See Sullivan v. Schriro, No. CV-04-1517-PHX-DGC, 2006 WL 1516005, at *1-2 (D. Ariz. May 30, 2006). Because Petitioner has failed to provide a specific objection to the magistrate's decision, the Court need not review the Magistrate's findings. Id; see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (holding that a court need not review any part of the R R that was not the subject of a specific objection).
Petitioner also asks the Court to stay the habeas proceedings while another Rule 32 petition for post-conviction relief is pending in state court. Dkt. #23 at 2. The state trial court has summarily denied his petition. Dkt. #23-2, Ex. A at 1. The petition is now pending in the Arizona Court of Appeals. The Court will not stay the habeas proceedings on the basis of this Rule 32 petition, which was filed on January 31, 2007, long after Petitioner filed his habeas corpus petition on March 20, 2006.
IT IS ORDERED:
1. The Magistrate Judge's Report and Recommendation (Dkt. #20) is accepted.
2. Petitioner's petition for writ of habeas corpus (Dkt. #1) is denied.
3. The Clerk of Court shall terminate this action.