1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Floyd Lewis Foster, Jr., No. CV-20-00371-TUC-RCC
10 Petitioner, ORDER
11 v.
12 David Shinn, et al.,
13 Respondents. 14 15 On September 16, 2022, Magistrate Judge Jacqueline M. Rateau issued a 16 Report and Recommendation (“R&R”) in which she recommended the Court 17 dismiss Petitioner Floyd Lewis Foster, Jr.'s Petition Under 28 U.S.C. § 2254 for a 18 Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 19 1). (Doc. 16.) Petitioner filed an objection to the R&R (Doc. 21), and Respondents 20 a response (Doc. 22). Upon review, the Court will adopt the R&R and dismiss 21 Petitioner's § 2254 Habeas Petition. 22 I. STANDARD OF REVIEW 23 The standard the district court uses when reviewing a magistrate judge’s 24 R&R is dependent upon whether a party objects: where there is no objection to a 25 magistrate’s factual or legal determinations, the district court need not review the 26 decision "under a de novo or any other standard." Thomas v. Arn, 474 U.S. 140, 27 150 (1985). However, when a party objects, the district court must “determine de 28 novo any part of the magistrate judge’s disposition that has been properly objected 1 to. The district judge may accept, reject, or modify the recommended disposition; 2 receive further evidence; or return the matter to the magistrate judge with 3 instructions.” Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1). Moreover, 4 “while the statute does not require the judge to review an issue de novo if no 5 objections are filed, it does not preclude further review by the district judge, sua 6 sponte or at the request of a party, under a de novo or any other standard.” Thomas, 7 474 U.S. at 154. 8 A petitioner’s objections to an R&R must specifically indicate the findings 9 and recommendations for which he disagrees. Fed. R. Civ. P. 72(b). In addition, 10 arguments raised for the first time in an objection need not be reviewed. See United 11 States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000) ("[A] district court may, but is 12 not required to, consider evidence presented for the first time in a party's objection 13 to the magistrate judge's recommendation."). 14 There being no objection to the factual summary of the case, the Court 15 adopts the Magistrate Judge’s recitation of the facts, and only summarizes them as 16 necessary to address Petitioner’s objections. 17 II. PETITIONER'S OBJECTIONS 18 a. CLAIM 3(B) IS NON-COGNIZABLE IN HABEAS 19 Claim 3(B) asserts that Petitioner's Sixth Amendment due process rights 20 were violated when the trial court allowed the prosecution to introduce evidence of 21 a syringe discovered in his holding cell. (Doc. 1 at 8.) The Magistrate Judge's R&R 22 noted that "state court evidentiary rulings based upon issues of state law are not 23 cognizable on federal habeas review." (Doc. 16 at 9 (first citing Dubria v. Smith, 24 224 F.3d 995, 1001 (9th Cir 2000); then citing Wyndham v. Merkle, 163 F.3d 1092, 25 1103 (9th Cir 1998).) 26 Petitioner objects to the Magistrate Judge's conclusion that Claim 3(B) was 27 non-cognizable in habeas, arguing "the presumption of correctness should not have 28 been applied because the issue of the syringe and circumstances surrounding 1 thereof, involve a mixed question of law and fact." (Doc. 21 at 2 (citing Doc. 16 at 2 9–10).) 3 Petitioner's objection does not undermine the Magistrate's conclusion. The 4 state court's admission of evidence is a question state law that is precluded from 5 review in a § 2254 habeas. See Swarthout v. Cooke, 562 U.S. 216, 219 (2011) 6 ("[F]ederal habeas corpus relief does not lie for errors of state law.") (citation and 7 quotation marks omitted). 8 b. OBJECTION TO CLAIM 3(C) WAS NOT BEFORE THE MAGISTRATE 9 Claim 3(C) asserts that Petitioner's Sixth Amendment Due Process rights 10 were violated when the "trial court improperly instructed the jury on possession of 11 a firearm during the commission of an offense as an aggravating factor." (Doc. 1 at 12 8.) The Magistrate Judge noted that Petitioner made this argument to state 13 appellate court, who rejected it "determining that the relevant statute was A.R.S.§ 14 13-701(D)(2) [not A.R.S. §13-3102(A)(8), as argued by Petitioner] and this statute 15 expressly addresses the use of a deadly weapon during the commission of an 16 offense as a sentencing factor." (Doc. 16 at 10.) Thus, the Magistrate concluded 17 that "Claim 3(C) concerns state sentencing law and is non-cognizable on federal 18 habeas review." (Id. (citing Lewis v. Jeffers, 497 U.S. 764, 780 (1990).) 19 Petitioner's objection argues that the two statutes—ARS § 13-701(D)(2) and 20 § 1303102(A)(8)—"offend[] Ring v. Arizona, 536 U.S. 584 (2002)" because "when 21 the elements of a crime provide for consideration of a piece of evidence, that same 22 piece of evidence cannot be used to aggravate a sentence." (Doc. 21 at 3.) 23 In this circuit, a district judge need not conduct a de novo review of 24 arguments never raised before the magistrate judge. Howell, 231 F.3d at 621. 25 Therefore, the Court will not review this newly raised argument. Regardless, the 26 Court finds the Magistrate was correct in determining that the sentencing law 27 raised a state issue not reviewable in habeas. See Swarthout, 562 U.S. at 219. 28 1 c. GROUNDS 1(B)–1(D), 2, & 3 ARE PROCEDURALLY BARRED 2 Petitioner objects to the Magistrate Judge's determination that several of 3 Petitioner's claims were procedurally barred. (Doc. 21 at 4.) He states: 4 [Grounds 1(B)–1(D), 2, and 3 are] contrary to clearly established 5 federal law. The Court finds procedural default for failing to raise the claims, in accordance with state procedural rules. Specifically, 6 reproduced are affidavits from my son and parents. They were 7 witnesses to the state manufacturing evidence to ensure there are convictions, in this case. . . . Take away the manufactured evidence, 8 no reasonable juror would have found me guilty. 9 (Id.) Petitioner's objection does not undermine Magistrate Judge's conclusion that 10 Grounds 1(B)–1(D), 2, and 3 were procedurally defaulted without excuse. 11 Furthermore, insofar as this objection raises an actual innocence claim, he has not 12 13 met his burden of showing that no reasonable factfinder could have found him 14 guilty of the offense. See Schlup v. Delo¸ 513 U.S. 298, 327 (1995). 15 III. CONCLUSION 16 Upon de novo review of the issues raised in Petitioner’s objection to the 17 R&R, the Court agrees with the Magistrate Judge’s determinations. Petitioner is 18 not entitled to relief in habeas. 19 IV.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Floyd Lewis Foster, Jr., No. CV-20-00371-TUC-RCC
10 Petitioner, ORDER
11 v.
12 David Shinn, et al.,
13 Respondents. 14 15 On September 16, 2022, Magistrate Judge Jacqueline M. Rateau issued a 16 Report and Recommendation (“R&R”) in which she recommended the Court 17 dismiss Petitioner Floyd Lewis Foster, Jr.'s Petition Under 28 U.S.C. § 2254 for a 18 Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 19 1). (Doc. 16.) Petitioner filed an objection to the R&R (Doc. 21), and Respondents 20 a response (Doc. 22). Upon review, the Court will adopt the R&R and dismiss 21 Petitioner's § 2254 Habeas Petition. 22 I. STANDARD OF REVIEW 23 The standard the district court uses when reviewing a magistrate judge’s 24 R&R is dependent upon whether a party objects: where there is no objection to a 25 magistrate’s factual or legal determinations, the district court need not review the 26 decision "under a de novo or any other standard." Thomas v. Arn, 474 U.S. 140, 27 150 (1985). However, when a party objects, the district court must “determine de 28 novo any part of the magistrate judge’s disposition that has been properly objected 1 to. The district judge may accept, reject, or modify the recommended disposition; 2 receive further evidence; or return the matter to the magistrate judge with 3 instructions.” Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1). Moreover, 4 “while the statute does not require the judge to review an issue de novo if no 5 objections are filed, it does not preclude further review by the district judge, sua 6 sponte or at the request of a party, under a de novo or any other standard.” Thomas, 7 474 U.S. at 154. 8 A petitioner’s objections to an R&R must specifically indicate the findings 9 and recommendations for which he disagrees. Fed. R. Civ. P. 72(b). In addition, 10 arguments raised for the first time in an objection need not be reviewed. See United 11 States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000) ("[A] district court may, but is 12 not required to, consider evidence presented for the first time in a party's objection 13 to the magistrate judge's recommendation."). 14 There being no objection to the factual summary of the case, the Court 15 adopts the Magistrate Judge’s recitation of the facts, and only summarizes them as 16 necessary to address Petitioner’s objections. 17 II. PETITIONER'S OBJECTIONS 18 a. CLAIM 3(B) IS NON-COGNIZABLE IN HABEAS 19 Claim 3(B) asserts that Petitioner's Sixth Amendment due process rights 20 were violated when the trial court allowed the prosecution to introduce evidence of 21 a syringe discovered in his holding cell. (Doc. 1 at 8.) The Magistrate Judge's R&R 22 noted that "state court evidentiary rulings based upon issues of state law are not 23 cognizable on federal habeas review." (Doc. 16 at 9 (first citing Dubria v. Smith, 24 224 F.3d 995, 1001 (9th Cir 2000); then citing Wyndham v. Merkle, 163 F.3d 1092, 25 1103 (9th Cir 1998).) 26 Petitioner objects to the Magistrate Judge's conclusion that Claim 3(B) was 27 non-cognizable in habeas, arguing "the presumption of correctness should not have 28 been applied because the issue of the syringe and circumstances surrounding 1 thereof, involve a mixed question of law and fact." (Doc. 21 at 2 (citing Doc. 16 at 2 9–10).) 3 Petitioner's objection does not undermine the Magistrate's conclusion. The 4 state court's admission of evidence is a question state law that is precluded from 5 review in a § 2254 habeas. See Swarthout v. Cooke, 562 U.S. 216, 219 (2011) 6 ("[F]ederal habeas corpus relief does not lie for errors of state law.") (citation and 7 quotation marks omitted). 8 b. OBJECTION TO CLAIM 3(C) WAS NOT BEFORE THE MAGISTRATE 9 Claim 3(C) asserts that Petitioner's Sixth Amendment Due Process rights 10 were violated when the "trial court improperly instructed the jury on possession of 11 a firearm during the commission of an offense as an aggravating factor." (Doc. 1 at 12 8.) The Magistrate Judge noted that Petitioner made this argument to state 13 appellate court, who rejected it "determining that the relevant statute was A.R.S.§ 14 13-701(D)(2) [not A.R.S. §13-3102(A)(8), as argued by Petitioner] and this statute 15 expressly addresses the use of a deadly weapon during the commission of an 16 offense as a sentencing factor." (Doc. 16 at 10.) Thus, the Magistrate concluded 17 that "Claim 3(C) concerns state sentencing law and is non-cognizable on federal 18 habeas review." (Id. (citing Lewis v. Jeffers, 497 U.S. 764, 780 (1990).) 19 Petitioner's objection argues that the two statutes—ARS § 13-701(D)(2) and 20 § 1303102(A)(8)—"offend[] Ring v. Arizona, 536 U.S. 584 (2002)" because "when 21 the elements of a crime provide for consideration of a piece of evidence, that same 22 piece of evidence cannot be used to aggravate a sentence." (Doc. 21 at 3.) 23 In this circuit, a district judge need not conduct a de novo review of 24 arguments never raised before the magistrate judge. Howell, 231 F.3d at 621. 25 Therefore, the Court will not review this newly raised argument. Regardless, the 26 Court finds the Magistrate was correct in determining that the sentencing law 27 raised a state issue not reviewable in habeas. See Swarthout, 562 U.S. at 219. 28 1 c. GROUNDS 1(B)–1(D), 2, & 3 ARE PROCEDURALLY BARRED 2 Petitioner objects to the Magistrate Judge's determination that several of 3 Petitioner's claims were procedurally barred. (Doc. 21 at 4.) He states: 4 [Grounds 1(B)–1(D), 2, and 3 are] contrary to clearly established 5 federal law. The Court finds procedural default for failing to raise the claims, in accordance with state procedural rules. Specifically, 6 reproduced are affidavits from my son and parents. They were 7 witnesses to the state manufacturing evidence to ensure there are convictions, in this case. . . . Take away the manufactured evidence, 8 no reasonable juror would have found me guilty. 9 (Id.) Petitioner's objection does not undermine Magistrate Judge's conclusion that 10 Grounds 1(B)–1(D), 2, and 3 were procedurally defaulted without excuse. 11 Furthermore, insofar as this objection raises an actual innocence claim, he has not 12 13 met his burden of showing that no reasonable factfinder could have found him 14 guilty of the offense. See Schlup v. Delo¸ 513 U.S. 298, 327 (1995). 15 III. CONCLUSION 16 Upon de novo review of the issues raised in Petitioner’s objection to the 17 R&R, the Court agrees with the Magistrate Judge’s determinations. Petitioner is 18 not entitled to relief in habeas. 19 IV. CERTIFICATE OF APPEALABILITY 20 Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, in the 21 event Petitioner files an appeal, the Court declines to issue a certificate of 22 appealability because reasonable persons could not “debate whether (or, for that 23 matter, agree that) the petition should have been resolved in a different manner or 24 that the issues presented were adequate to deserve encouragement to proceed 25 further.” See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotations 26 omitted). 27 Accordingly, IT IS ORDERED: 28 1. Magistrate Judge Rateau's Report and Recommendation is ADOPTED. 1 (Doc. 16.) 2 2. Floyd Lewis Foster Jr.'s Petition Under 28 U.S.C. § 2254 for a Writ of 3 Habeas Corpus by a Person in State Custody (Doc. 1) is DENIED. 4 3. The Clerk of Court shall docket accordingly and close the case file in this 5 matter. 6 Dated this 28th day of November, 2022. 7 8 9 fl Dp N- 10 Honorable Raner C. Collins 11 senior United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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