Martin v. Attorney General of the State of Arizona

• Court: District Court, D. Arizona
• Decided: November 8, 2023
• Docket: 3:22-cv-08014
• Status: Unknown

Opinion

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Philip John Martin, No. CV-22-08014-PCT-JJT (MTM)

10 Petitioner, ORDER

11 v.

12 Attorney General of the State of Arizona,

13 Respondent. 14 15 At issue is the Report and Recommendation (Doc. 29, “R&R”) entered by United 16 States Magistrate Judge Michael T. Morrissey recommending that the Court deny and 17 dismiss with prejudice the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 18 (Doc. 1). Petitioner filed Objections (Doc. 30) which the Court deems as timely filed, and 19 Respondents thereafter timely filed a Response to those Objections (Doc. 31.) 20 Petitioner raised two grounds for habeas review1 in his Petition: 1) what Judge 21 Morrissey has generously construed as a freestanding claim of actual innocence; and 2) the 22 allegation that “[p]olice reports contain lies and tainted evidence.” Judge Morrissey ably 23 set forth his analysis for both grounds which the Court will not recount here except in 24 summary. As to Ground One, Judge Morrissey correctly stated that even if a freestanding 25 claim of actual innocence is cognizable in this proceeding—an open question not yet 26 answered by the Supreme Court or the Ninth Circuit—Petitioner has failed to meet the

27 1 In his Objections to the R&R, Petitioner arguably attempts for the first time to introduce a third ground: ineffective assistance of trial counsel. (Doc. 30, passim.) To the extent 28 Petitioner attempts to offer it as a ground for review, the Court will not consider this newly raised claim. See United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000). 1 extremely high showing standard the Ninth Circuit has said it would require in Carriger v. 2 Stewart, 132 F.3d 463, 476 (9th Cir. 1997). As Judge Morrissey concluded, Petitioner has 3 not shown that he is probably innocent, as Carriger would require. 132 F.3d at 476. 4 As to Ground Two, the R&R correctly concludes that Petitioner’s allegation fails to 5 state a violation of the Constitution, law or treaties of the United States—the only violation 6 redressable by federal review pursuant to Section 2254. Petitioner therefore has not stated 7 a cognizable habeas claim. 8 The Court spent considerable time parsing through and trying to make sense of 9 Petitioner’s 15-page Objections, which largely consist of discrete and unrelated paragraph- 10 sized bullet points making record and case citations, interspersed with selected trial 11 transcript pages at times highlighted, in an attempt to fully understand the gravamen of 12 those objections. After that review, the Court agrees with Respondents that Petitioner fails 13 to state any actionable objections to the recommendations on his two previously stated 14 grounds. Instead, Petitioner merely repeats the arguments he made in his briefs; he does 15 not point to any specific finding made by Judge Morrissey, or reasoning supporting such 16 finding, to ascribe or identify error. These are thus improper objections. See, e.g., Curtis v. 17 Shinn, No. CV-19-04374-PHX-DGC, 2021 WL 4596465 at 7* (D. Ariz. October 6, 2021) 18 (“. . . simply repeating arguments made in the petition is not a proper objection under Rule 19 72.”); see also 28 U.S.C. § 636(b)(1) (requiring specific written objections to the findings 20 and recommendations). The Court cannot sustain such objections. 21 IT IS THEREFORE ORDERED overruling the Objections (Doc. 30) and 22 adopting the R&R (Doc. 29) submitted by Judge Morrissey in this matter. 23 IT IS FURTHER ORDERED denying and dismissing with prejudice the Petition 24 for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). 25 . . . . 26 . . . . 27 . . . . 28 1 IT IS FURTHER ORDERED denying a Certificate of Appealability in this mater, || as the Court finds that Petitioner has not made a substantial showing of the denial of a 3 || constitutional right. 4 Dated this 8th day of November, 2023. CN

6 wef flee— Unig State@District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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