1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Michael William McKerlie, No. CV-20-00511-TUC-SHR
10 Petitioner, Order Accepting R&R
11 v.
12 David Shinn, et al.,
13 Respondents. 14 15 On January 11, 2023, Magistrate Judge Erik J. Markovich issued a Report and 16 Recommendation (“R&R”) in which he recommended the Court dismiss Petitioner 17 Michael William McKerlie’s Amended Petition for Writ of Habeas Corpus pursuant to 28 18 U.S.C. § 2254 (“Petition”). (Doc. 32.) The Court has reviewed the record, including 19 Petitioner’s Objection (Doc. 37) and Respondent’s response (Doc. 38), and accepts Judge 20 Markovich’s R&R. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. 21 I. Report and Recommendation 22 In his Petition, Petitioner asserts four grounds for relief: (1) “the pictures in this 23 case are protected expression under the First Amendment”; (2) “there is a reasonable 24 possibility the jury impermissibly based their verdict on their belief that [he] may have 25 possessed these pictures for sexual stimulation, rather than on whether the photographer 26 took them for the purpose of sexually stimulating the viewer”; (3) “although the Arizona 27 Court of Appeals said in its ruling in this case the state was required to prove beyond a 28 reasonable doubt the photographer who took these pictures did so for the purpose of sexual 1 stimulation of the viewer, the Court ignored the fact the state did not as much as make the 2 allegation such was the case, much less prove it”; and (4) ineffective assistance of counsel 3 based on his trial attorney’s “lack of knowledge” of “points of law which were essential to 4 [Petitioner’s] case,” due to his attorney’s “ineptitude, lack of experience, and/or lack of 5 investigation.” (Doc. 15.) 6 The State of Arizona filed a “Limited Answer,” urging the Court to deny the Petition 7 with prejudice because the claims are “technically exhausted but procedurally defaulted, 8 not cognizable on federal habeas corpus review, or meritless.” (Doc. 24.) Petitioner 9 replied. (Doc. 30.) 10 Judge Markovich considered each of Petitioner’s four grounds. As to the first, Judge 11 Markovich found Petitioner’s First Amendment argument was procedurally defaulted 12 because he did not raise the issue on direct appeal and only “tangentially discussed the First 13 Amendment in his pro se PCR [post-conviction relief] petition to the trial court” and did 14 so only in relation to an ineffective-assistance-of-counsel claim, and he had not ever raised 15 the issue to the Arizona Court of Appeals; (2) Petitioner did not raise his argument about 16 the basis of the jury verdict on direct review, nor did he assert it in his PCR petition, so that 17 claim is procedurally defaulted; (3) Petitioner’s argument that the state was required to 18 prove the photographer took the pictures for the purposes of sexual stimulation of the 19 viewer was rejected by the Arizona Court of Appeals, which explained, “the state was not 20 required to show that McKerlie intended to use the images for sexual stimulation,” so that 21 claim is procedurally defaulted; and (4) Petitioner has not properly raised his instant 22 ineffective-assistance-of-counsel claims at every level of review, if at all, so ground four 23 is procedurally defaulted. Judge Markovich further concluded, with respect to all four 24 procedurally defaulted claims, Petitioner had not “establish[ed] by clear and convincing 25 evidence that but for the constitutional error, no reasonable factfinder would have found 26 [him] guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B). Therefore, Judge 27 Markovich recommended the Court dismiss Petitioner’s Amended Petition. 28 1 II. Legal Standard 2 A party may file written objections to an R&R within fourteen days of being served 3 with a copy of it. Rules Governing Section 2254 Cases 8(b) (“Section 2254 Rules”). Those 4 objections must be “specific.” See Fed. R. Civ. P. 72(b)(2) (“Within 14 days after being 5 served with a copy of the recommended disposition, a party may serve and file specific 6 written objections to the proposed findings and recommendations.”). “The district judge 7 must determine de novo any part of the magistrate judge's disposition that has been 8 properly objected to. The district judge may accept, reject, or modify the recommended 9 disposition; receive further evidence; or return the matter to the magistrate judge with 10 instructions.” See Fed. R. Civ. P. 72(b)(3). 11 This Court is “not required to review any portion of an R&R to which no specific 12 objection has been made.” Scott v. Shinn, No., 2021 WL 5833270, at *3 (D. Ariz. Dec. 9, 13 2021); see Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does not appear that Congress 14 intended to require district court review of a magistrate’s factual or legal conclusions, under 15 a de novo or any other standard, when neither party objects to those findings.”); United 16 States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (“[T]he district judge must 17 review the magistrate judge’s findings and recommendations de novo if objection is made, 18 but not otherwise.” (emphasis in original)). That is, district judges need not review an 19 objection to an R&R that is general and non-specific. Scott, 2021 WL 5833270, at *3; see, 20 e.g., Warling v. Ryan, 2013 WL 5276367, *2 (D. Ariz. 2013) (“Because de novo review of 21 an entire R & R would defeat the efficiencies intended by Congress, a general objection 22 ‘has the same effect as would a failure to object’” (citations omitted)); Haley v. Stewart, 23 2006 WL 1980649, *2 (D. Ariz. 2006) (“[G]eneral objections to an R & R are tantamount 24 to no objection at all.”). 25 III. Analysis 26 In his Objection, Petitioner asserts the R&R recommends dismissal “not because 27 [his] petition is without merit, but because neither [Petitioner’s] public defender nor 28 [Petitioner] understood what made a picture illegal under the law in time to raise it at trial 1 or in subsequent petitions.” (Doc. 37 at 2.) As Respondents correctly note, “[f]or the most 2 part, McKerlie’s objection is a general grievance against the habeas rules and procedures 3 imposed by this Court.” (Doc. 38 at 3.) Indeed, the entirety of Petitioner’s filing does not 4 appear to be related to the R&R, but rather is made up of complaints about the legal process, 5 which he argues allowed the Magistrate Judge to “ignore” “whether or not a miscarriage 6 of justice has occurred,” and his arguments that he is innocent and he, as a lay person, did 7 not understand the law well enough to raise the arguments in his Amended Petition earlier. 8 Petitioner, however, does not identify any error the Magistrate Judge made in the R&R. 9 At this stage of the proceedings, Petitioner must identify specific errors in the R&R. 10 He may not simply repeat earlier arguments, nor may he simply rely on general grievances 11 about the legal process. Petitioner does not develop any reasoned argument—he merely 12 objects to the R&R because he takes issue with the rules and procedures governing habeas 13 review.
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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Michael William McKerlie, No. CV-20-00511-TUC-SHR
10 Petitioner, Order Accepting R&R
11 v.
12 David Shinn, et al.,
13 Respondents. 14 15 On January 11, 2023, Magistrate Judge Erik J. Markovich issued a Report and 16 Recommendation (“R&R”) in which he recommended the Court dismiss Petitioner 17 Michael William McKerlie’s Amended Petition for Writ of Habeas Corpus pursuant to 28 18 U.S.C. § 2254 (“Petition”). (Doc. 32.) The Court has reviewed the record, including 19 Petitioner’s Objection (Doc. 37) and Respondent’s response (Doc. 38), and accepts Judge 20 Markovich’s R&R. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. 21 I. Report and Recommendation 22 In his Petition, Petitioner asserts four grounds for relief: (1) “the pictures in this 23 case are protected expression under the First Amendment”; (2) “there is a reasonable 24 possibility the jury impermissibly based their verdict on their belief that [he] may have 25 possessed these pictures for sexual stimulation, rather than on whether the photographer 26 took them for the purpose of sexually stimulating the viewer”; (3) “although the Arizona 27 Court of Appeals said in its ruling in this case the state was required to prove beyond a 28 reasonable doubt the photographer who took these pictures did so for the purpose of sexual 1 stimulation of the viewer, the Court ignored the fact the state did not as much as make the 2 allegation such was the case, much less prove it”; and (4) ineffective assistance of counsel 3 based on his trial attorney’s “lack of knowledge” of “points of law which were essential to 4 [Petitioner’s] case,” due to his attorney’s “ineptitude, lack of experience, and/or lack of 5 investigation.” (Doc. 15.) 6 The State of Arizona filed a “Limited Answer,” urging the Court to deny the Petition 7 with prejudice because the claims are “technically exhausted but procedurally defaulted, 8 not cognizable on federal habeas corpus review, or meritless.” (Doc. 24.) Petitioner 9 replied. (Doc. 30.) 10 Judge Markovich considered each of Petitioner’s four grounds. As to the first, Judge 11 Markovich found Petitioner’s First Amendment argument was procedurally defaulted 12 because he did not raise the issue on direct appeal and only “tangentially discussed the First 13 Amendment in his pro se PCR [post-conviction relief] petition to the trial court” and did 14 so only in relation to an ineffective-assistance-of-counsel claim, and he had not ever raised 15 the issue to the Arizona Court of Appeals; (2) Petitioner did not raise his argument about 16 the basis of the jury verdict on direct review, nor did he assert it in his PCR petition, so that 17 claim is procedurally defaulted; (3) Petitioner’s argument that the state was required to 18 prove the photographer took the pictures for the purposes of sexual stimulation of the 19 viewer was rejected by the Arizona Court of Appeals, which explained, “the state was not 20 required to show that McKerlie intended to use the images for sexual stimulation,” so that 21 claim is procedurally defaulted; and (4) Petitioner has not properly raised his instant 22 ineffective-assistance-of-counsel claims at every level of review, if at all, so ground four 23 is procedurally defaulted. Judge Markovich further concluded, with respect to all four 24 procedurally defaulted claims, Petitioner had not “establish[ed] by clear and convincing 25 evidence that but for the constitutional error, no reasonable factfinder would have found 26 [him] guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B). Therefore, Judge 27 Markovich recommended the Court dismiss Petitioner’s Amended Petition. 28 1 II. Legal Standard 2 A party may file written objections to an R&R within fourteen days of being served 3 with a copy of it. Rules Governing Section 2254 Cases 8(b) (“Section 2254 Rules”). Those 4 objections must be “specific.” See Fed. R. Civ. P. 72(b)(2) (“Within 14 days after being 5 served with a copy of the recommended disposition, a party may serve and file specific 6 written objections to the proposed findings and recommendations.”). “The district judge 7 must determine de novo any part of the magistrate judge's disposition that has been 8 properly objected to. The district judge may accept, reject, or modify the recommended 9 disposition; receive further evidence; or return the matter to the magistrate judge with 10 instructions.” See Fed. R. Civ. P. 72(b)(3). 11 This Court is “not required to review any portion of an R&R to which no specific 12 objection has been made.” Scott v. Shinn, No., 2021 WL 5833270, at *3 (D. Ariz. Dec. 9, 13 2021); see Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does not appear that Congress 14 intended to require district court review of a magistrate’s factual or legal conclusions, under 15 a de novo or any other standard, when neither party objects to those findings.”); United 16 States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (“[T]he district judge must 17 review the magistrate judge’s findings and recommendations de novo if objection is made, 18 but not otherwise.” (emphasis in original)). That is, district judges need not review an 19 objection to an R&R that is general and non-specific. Scott, 2021 WL 5833270, at *3; see, 20 e.g., Warling v. Ryan, 2013 WL 5276367, *2 (D. Ariz. 2013) (“Because de novo review of 21 an entire R & R would defeat the efficiencies intended by Congress, a general objection 22 ‘has the same effect as would a failure to object’” (citations omitted)); Haley v. Stewart, 23 2006 WL 1980649, *2 (D. Ariz. 2006) (“[G]eneral objections to an R & R are tantamount 24 to no objection at all.”). 25 III. Analysis 26 In his Objection, Petitioner asserts the R&R recommends dismissal “not because 27 [his] petition is without merit, but because neither [Petitioner’s] public defender nor 28 [Petitioner] understood what made a picture illegal under the law in time to raise it at trial 1 or in subsequent petitions.” (Doc. 37 at 2.) As Respondents correctly note, “[f]or the most 2 part, McKerlie’s objection is a general grievance against the habeas rules and procedures 3 imposed by this Court.” (Doc. 38 at 3.) Indeed, the entirety of Petitioner’s filing does not 4 appear to be related to the R&R, but rather is made up of complaints about the legal process, 5 which he argues allowed the Magistrate Judge to “ignore” “whether or not a miscarriage 6 of justice has occurred,” and his arguments that he is innocent and he, as a lay person, did 7 not understand the law well enough to raise the arguments in his Amended Petition earlier. 8 Petitioner, however, does not identify any error the Magistrate Judge made in the R&R. 9 At this stage of the proceedings, Petitioner must identify specific errors in the R&R. 10 He may not simply repeat earlier arguments, nor may he simply rely on general grievances 11 about the legal process. Petitioner does not develop any reasoned argument—he merely 12 objects to the R&R because he takes issue with the rules and procedures governing habeas 13 review. Moreover, Petitioner makes no argument as to why his claims are not procedurally 14 defaulted, nor does he attempt to establish cause and prejudice to excuse his default. To 15 the extent Petitioner’s argument about being a lay person can be construed as a specific 16 objection to the R&R’s finding that no cause existed to excuse his procedural default, that 17 argument is meritless. See Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988) (noting 18 “an illiterate petitioner’s complete lack of assistance is not cause to excuse a procedural 19 default”). 20 Accordingly, 21 IT IS ORDERED: 22 (1) Petitioner’s objections to the R&R (Doc. 37) are overruled. 23 (2) The R&R (Doc. 32) is accepted. 24 (3) The Amended Petitioner (Doc. 15) is denied and dismissed with prejudice. 25 (4) A Certificate of Appealability and leave to proceed in forma pauperis on appeal 26 are denied because dismissal of the Petition is justified by a plain procedural bar 27 and jurists of reason would not find the procedural ruling debatable and because 28 Petitioner has not made a substantial showing of the denial of a constitutional 1 right. 2 (5) The Clerk shall enter judgment accordingly and close this action. 3 Dated this 16th day of February, 2023. 4 5
7 United States District Judge 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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