Waldrep v. Shinn

Opinion

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

9 Roger Darryl Waldrep, No. CV-17-04609-PHX-DWL

10 Petitioner, ORDER

11 v.

12 Charles L Ryan, et al.,

13 Respondents. 14 15 On December 13, 2017, Petitioner filed a petition for writ of habeas corpus under 16 28 U.S.C. § 2254 (“the Petition”). (Doc. 1.) On December 20, 2019, Magistrate Judge 17 Bibles issued a Report and Recommendation (“R&R”) concluding the Petition should be 18 denied. (Doc. 53.) Afterward, Petitioner filed objections to the R&R (Doc. 55), 19 Respondents filed a response (Doc. 69), and Petitioner filed a reply (Doc. 71). For the 20 following reasons, the Court will overrule Petitioner’s objections to the R&R and terminate 21 this action. 22 I. Background 23 The relevant factual and procedural background is set forth in the R&R. In 24 summary, in late November 2013, Petitioner molested his 11-year-old step-daughter by 25 rubbing her breasts, licking her vagina, and rubbing her anus. (Doc. 53 at 1.) A few days 26 later, Petitioner made various admissions during a phone call that, unbeknownst to him, 27 was being recorded by the police. (Id. at 2.) Petitioner also made similar admissions to his 28 brother and to the victim’s mother. (Id. at 2 & n.1.) 1 Following his arrest in December 2013, Petitioner was initially represented by 2 retained counsel. (Id. at 2-3.) However, in May 2014, Petitioner’s retained counsel 3 withdrew from the representation and Petitioner obtained appointed counsel. (Id. at 3.) 4 The trial court then “granted numerous motions to continue so that [new counsel] could 5 investigate the case and conduct plea negotiations.” (Id.) 6 In October 2015, Petitioner attended a settlement conference. (Id.) During the 7 conference, the prosecutor offered a plea deal with a stipulated sentencing range of 20-24 8 years’ imprisonment, which Petitioner rejected because “he would not acquiesce to a prison 9 sentence.” (Id. at 4.) Petitioner also “read a statement professing remorse for his actions” 10 and “attribut[ing] his actions to a deer antler testosterone spray prescribed by his doctor for 11 chronic fatigue.” (Id.) After the settlement conference, Petitioner sought and obtained new 12 appointed counsel. (Id. at 5.) 13 In February 2016, Petitioner attended a second settlement conference. (Id.) During 14 this conference, the prosecutor informed Petitioner that his deer-antler-spray defense was 15 “problematic because [Petitioner] had voluntarily used the deer antler spray, and voluntary 16 intoxication was not a defense under Arizona law.” (Id. at 6.) Nevertheless, the prosecutor 17 informed Petitioner “that he was willing to deviate from the typical offer and offer 18 [Petitioner] a sentencing range of 17 to 24 years’ imprisonment,” contingent upon 19 obtaining supervisory and victim approval. (Id.) Petitioner responded by stating that a 17- 20 to-24-year sentence would be a disproportionate and unreasonable punishment for “five 21 minutes” when he “really screwed up.” (Id.) After some additional back and forth, during 22 which the prosecutor stated that no better plea offers would be forthcoming, the settlement 23 judge stated that the conference was over and the trial date would be affirmed. (Id. at 8.) 24 In response, Petitioner stated: “I won’t turn it down yet.” (Id.) 25 On March 3, 2016, Petitioner attended a third settlement conference. (Id.) During 26 this conference, Petitioner’s counsel acknowledged that the case against Petitioner was 27 “relatively straightforward” because he had “confessed three different times to three 28 different people.” (Id. at 8-9.) After further discussion, during which the prosecutor again 1 confirmed that no better plea deals would be forthcoming, Petitioner stated that he wanted 2 to have “a few days to talk with family” about whether to accept the current offer. (Id. at 3 9.) 4 On March 9, 2016, Petitioner signed a written plea agreement that provided for a 5 stipulated sentencing range of 17-24 years. (Id.) During the change-of-plea hearing, 6 Petitioner was represented by counsel and repeatedly confirmed that he understood the plea 7 agreement and had not been forced, threated, or coerced into pleading guilty. (Id. at 9-12.) 8 On April 11, 2016, Petitioner’s sentencing hearing took place. (Id. at 12.) Although 9 the prosecutor asked for a 24-year sentence, the judge imposed the lowest possible sentence 10 that was available under the plea agreement of 17 years. (Id. at 12-14.) 11 After sentencing, Petitioner filed a timely notice of post-conviction relief (“PCR”) 12 pursuant to Rule 32 of the Arizona Rules of Criminal Procedure. (Id. at 14.) The trial court 13 appointed PCR counsel, but counsel filed a notice averring that he was unable to identify 14 any colorable claims for relief. (Id. at 15.) Petitioner thereafter filed a “revised” PCR 15 petition that “included extensive exhibits” and listed “34 separate claims of error.” (Id. at 16 15.) 17 On October 25, 2016, the trial court denied relief. (Id.) Among other things, the 18 court concluded that Petitioner could not prevail on a claim of ineffective assistance of 19 counsel (“IAC”) because he could not demonstrate deficient performance or prejudice. (Id. 20 at 15-16.) 21 On November 20, 2016, Petitioner filed a petition for review with the Arizona Court 22 of Appeals that raised 28 claims of IAC. (Id. at 16-17.) 23 On November 29, 2017, the Arizona Court of Appeals granted review and denied 24 relief. (Id. at 17-18.) 25 In December 2017, Petitioner filed the Petition. It asserts 65 grounds for relief. (Id. 26 at 18-23 [summarizing grounds].) 27 Between December 2017 and the present, Petitioner filed an array of often frivolous 28 1 motions.1 Additionally, Petitioner filed a petition for a writ of mandamus (Doc. 51), which 2 the Ninth Circuit denied in November 2019 (Doc. 67), and a premature notice of appeal 3 (Doc. 65), which the Ninth Circuit dismissed in February 2020 (Doc. 68). 4 The R&R was issued in December 2019. (Doc. 53.) It is 51 pages long and 5 painstakingly analyzes each of Petitioner’s 65 asserted grounds for relief. First, the R&R 6 concludes that Ground 4 must be rejected because it alleges errors during the PCR process, 7 which are not cognizable on federal habeas review. (Id. at 18 n.6.) Second, the R&R 8 concludes that Grounds 1-3, 5-15, 17-18, 53-54, and 60 must be rejected because they raise 9 pre-plea claims of non-jurisdictional error, yet such claims are considered procedurally 10 defaulted under Arizona law upon entry of a guilty plea, this Arizona law constitutes an 11 independent and adequate state ground barring federal habeas review, and Petitioner cannot 12 evade these principles because his guilty plea was knowing and voluntary. (Id. at 24-26, 13 30-32, 37-40.) Third, the R&R concludes that Grounds 16, 56, and 64 must be rejected 14 because Petitioner failed to present them to the Arizona Court of Appeals, rendering them 15 procedurally defaulted without cause. (Id. at 26-29.) Fourth, the R&R concludes that 16 Grounds 19-38, 40-42, 44, 46-47, 51-52, 55, and 58, all of which raise claims of IAC before 17 or during the guilty plea, must be rejected because Petitioner cannot demonstrate deficient 18 performance, Petitioner cannot demonstrate prejudice, and/or the claim is procedurally 19 defaulted due to the guilty plea. (Id. at 33-37, 40-46.) Fifth, the R&R concludes that the 20 remaining claims (Grounds 39, 43, 45, 48, 49, 50, 57, 59, 61, 62, 63, and 65) fail for various 21 reasons. (Id. at 46-49.) 22 … 23 1 Doc. 3 (motion for judgment); Doc. 6 (motion for summary judgment); Doc. 9 24 (motion to vacate judgment); Doc. 10 (motion for relief); Doc. 14 (motion for answers to previous motions); Doc. 21 (motion to appoint counsel); Doc. 22 (motion to produce 25 transcripts); Doc. 31 (motion for direct ruling); Doc. 33 (motion for judgment as a matter of law); Doc. 34 (motion for ruling); Doc. 36 (motion for ruling); Doc. 39 (motion to enter 26 newly discovered evidence); Doc. 40 (motion for status update); Doc. 41 (motion for final judgment or summary judgment); Doc. 43 (motion for de novo review); Doc. 45 (motion 27 for reconsideration); Doc. 46 (motion for change of judge); Doc. 47 (motion to vacate judgment); Doc. 49 (motion to appoint counsel); Doc. 52 (motion for status hearing); Doc. 28 61 (motion invoking mailbox rule); Doc. 62 (motion to stop Brady violations); Doc. 72 (motion for summary judgment). 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.”) (emphasis added). 7 District courts are not required to review any portion of an R&R to which no specific 8 objection has been made. See, e.g., Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (“It does 9 not appear that Congress intended to require district court review of a magistrate’s factual 10 or legal conclusions, under a de novo or any other standard, when neither party objects to 11 those findings.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) 12 (“[T]he district judge must review the magistrate judge’s findings and recommendations 13 de novo if objection is made, but not otherwise.”). Thus, district judges need not review 14 an objection to an R&R that is general and non-specific. See, e.g., Warling v. Ryan, 2013 15 WL 5276367, *2 (D. Ariz. 2013) (“Because de novo review of an entire R & R would 16 defeat the efficiencies intended by Congress, a general objection ‘has the same effect as 17 would a failure to object.’”) (citations omitted); Haley v. Stewart, 2006 WL 1980649, *2 18 (D. Ariz. 2006) (“[G]eneral objections to an R & R are tantamount to no objection at all.”).2 19 III. Analysis 20 Although Petitioner has filed lengthy objections to the R&R (Doc. 55),3 his 21 objections are too vague and generalized to permit meaningful review. For example, the 22 objections begin by asserting that “none of [Petitioner’s] constitutional claims and 23 2 See generally S. Gensler, 2 Federal Rules of Civil Procedure, Rules and 24 Commentary, Rule 72, at 422 (2018) (“A party who wishes to object to a magistrate judge’s ruling must make specific and direct objections. General objections that do not direct the 25 district court to the issues in controversy are not sufficient. . . . [T]he objecting party must specifically identify each issue for which he seeks district court review . . . .”). 26 3 See generally Doc. 59 at 2 (denying Respondents’ motion to strike Petitioner’s objections but clarifying that “[t]o the extent the ‘exhibits’ to Petitioner’s objections 27 contain any arguments not presented in the 17-page objections, such arguments will not be considered by the Court”). 28 1 supporting law, precedent of 100’s of U.S. Sup[reme] C[ourt], and Fed[eral] District Court 2 ruling were given PROPER CONSIDERATION or mentioned by Magistrate Bibles in the 3 R&R” and that “[f]or this Court to be just, upon reviewing entire record ANEW, DE- 4 NOVA, IT WILL GRANT RELIEF REQUESTED.” (Id. at 2.) Similarly, on the next 5 page, Petitioner contends that “[Petitioner] overcomes ALL PROCEDURAL BARS, 6 DENIED ANY REVIEW OF CLAIMS, based on jurisdiction, state adjudicated claims 7 ‘ON MERITS’ or ANY DEFAULTS denied by [Petitioner].” (Id. at 3.) These are not 8 proper objections to an R&R—they offer only conclusions and fail to explain, with any 9 specificity, why the R&R’s analysis was erroneous.4 10 Similarly, although Petitioner has offered some citations to case law, those 11 references merely consist (as Respondents point out in their response) of “list[ing] a 12 number of legal propositions and cases without explaining how they even relate[] to his 13 claims (let alone how they would allegedly undermine the R&R’s reasoning).” (Doc. 69 14 at 2.) Once again, this is insufficient to permit meaningful review under Rule 72(b). 15 The bottom line is that Petitioner’s generalized objections to the R&R leave the 16 Court with nothing to review. Warling, 2013 WL 5276367 at *2; Haley, 2006 WL 1980649 17 at *2; Gensler, supra, at 422. Thus, the Court will adopt the R&R’s recommended 18 disposition. 19 Accordingly, IT IS ORDERED that: 20 (1) Petitioner’s objections to the R&R (Doc. 55) are overruled. 21 (2) The R&R’s recommended disposition (Doc. 53) is accepted. 22 (3) The Petition (Doc. 1) is denied. 23 (4) A Certificate of Appealability and leave to proceed in forma pauperis on 24 4 Petitioner’s reply is similarly filled with conclusory assertions. (See, e.g., Doc. 71 25 at 2 [“[Petitioner] again proclaims all his 65 constitutional grounds presented in his habeas corpus petition, [Petitioner] PROVES ALL GROUNDS ARE PROVEN TRUE, and 26 COLORABLE by his established records, transcribes, notarized affidavits of facts, audio recordings; video recordings presented in States EVIDENCE.”]; id. at 3 [“[Petitioner] has 27 clearly, unequivocally; has UNIFORMALLY pointed out all of his SPECIFIC CONSTITUTIONAL VIOLATIONS he suffered and has presented specific CASE LAW; 28 rights, privileges, his transcripts, records, affidavits of facts; and AGAIN REQUESTS HIS DENIED BRADY MATERIALS.”].) 1 || appeal are denied because Petitioner has not made a substantial showing of the denial of a || constitutional right. 3 (5) | The Clerk shall enter judgment accordingly and terminate this action. 4 Dated this 29th day of April, 2020. 5 6 Lm ee” 7 f t _ Dominic W, Lanza 8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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