Minley v. Shinn

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Judy Minley, No. CV-19-00490-TUC-SHR 10 Petitioner, Order Accepting Magistrate Judge’s Report and Recommendation 11 v. 12 Ryan Thornell,1 et al., 13 Respondents. [15] 16 Pending before the Court is a Report and Recommendation (“R&R”) (Doc. 23) 17 issued by United States Magistrate Judge Bruce G. Macdonald recommending the Court 18 deny Petitioner’s Petition for Writ of Habeas Corpus. (Doc. 1.) Petitioner filed an 19 Objection (Doc. 26). For the reasons below, the R&R is accepted over Petitioner’s 20 Objection. 21 I. STANDARD OF REVIEW 22 When reviewing a magistrate judge’s R&R, this Court “may accept, reject, or 23 modify, in whole or in part, the findings or recommendations made by the magistrate 24 judge.” 28 U.S.C. § 636 (b)(1). The Court must undertake a de novo review of those 25 portions of the R&R to which specific written objections are made. See id.; Fed. R. Civ. [26] 1Former Arizona Department of Corrections, Rehabilitation and Reentry Director 27 David Shinn retired on January 4, 2023, and former Arizona Attorney General Mark Brnovich left office on January 1, 2023. The Court will substitute Director Ryan Thornell 28 for David Shinn and Arizona Attorney General Kristin Mayes for Mark Brnovich pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. 1 P. 72 (b)(3); United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). However, 2 “the Court has no obligation to review Petitioner’s general objection[s] to the R&R.” 3 Warling v. Ryan, No. CV 12-01396-PHX-DGC, 2013 WL 5276367 , at *2 (D. Ariz. Sept. 4 19, 2013); see also United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007) (“[A] party 5 must object to [a] finding or recommendation on [an issue in an R&R] with sufficient 6 specificity so as reasonably to alert the district court of the true ground for the objection.”). 7 Furthermore, objections to R&Rs “are not to be construed as a second opportunity to 8 present the arguments already considered by the Magistrate Judge.” Betancourt v. Ace Ins. 9 Co. of Puerto Rico, 313 F. Supp.2d 32, 34 (D.P.R. 2004); see also Camardo v. Gen. Motors 10 Hourly-Rate Emps. Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992) (“The purpose 11 of the Federal Magistrates Act is to relieve courts of unnecessary work” and “[t]here is no 12 increase in efficiency, and much extra work, when a party attempts to relitigate every 13 argument which it presented to the Magistrate Judge.”). 14 II. BACKGROUND 15 Petitioner argues it was improper for Judge Macdonald to “wholly accept[] the 16 statement of the facts set forth by the state Court of Appeals, even though acceptance of 17 those facts has been challenged.” (Doc. 26 at 2.) According to Petitioner, Judge 18 Macdonald looked at the facts “from the state’s perspective only without knowing all the 19 facts of the case” which resulted in “use of supposition and conjecture.” (Id. at 3.) The 20 only facts Petitioner appears to object to include: the statement that Petitioner “beat her son 21 with a sandal for getting a glass of water out of the bathroom while he was being punished,” 22 the statement discussing Petitioner’s “desire to put ‘fear’ into [her] child,” and the 23 statement that Petitioner knew “her child was in a dire situation at 11:00 p.m.” (Id. at 7.) 24 Petitioner summarily argues these statements were used out of context and claims there “is 25 no evidence that when [she] retreated into the bedroom, she either heard or participated in 26 the beating.” (Id. at 7–8.) 27 As noted by Judge Macdonald, (Doc. 23 n.2) the state court findings are entitled to 28 a presumption of correctness unless the petitioner makes a showing by clear and convincing 1 evidence that the findings are erroneous. See 28 U.S.C. § 2254 (e)(1). To the extent 2 Petitioner objects to these factual findings in the R&R, the Court concludes she fails to 3 make specific objections requiring de novo review. See Warling, 2013 WL 5276367 at *2. 4 Even if Petitioner had made specific objections, she fails to present any clear and 5 convincing evidence to show how the state court factual findings were erroneous. (See 6 Doc. 26 generally.) Therefore, the Court adopts the R&R’s facts and reiterates them here 7 for ease of reference. 8 On March 20, 2013, Minley beat her four-year-old son, J.D. with a sandal for getting a drink of water out of a bathroom 9 sink without her permission while he was being punished for 10 other behavior. When she felt the beating did not put enough “fear in him,” she told her boyfriend James Robinson to take 11 over, retreated to a bedroom to smoke marijuana, and heard Robinson brutally beat the child with the sandal in the next [12] room. When the sandal broke apart during the assault on the 13 child, Minley taped it up so that Robinson could continue the beating. [14] The next morning, J.D. lapsed into unconsciousness due 15 to complications from severe bruising over a large percentage of his body. After Minley and Robinson unsuccessfully tried to [16] revive him, Minley called 9-1-1 while Robinson carried the 17 unconscious child to the apartment leasing office seeking help. An emergency squad arrived minutes later and took the child [18] to the hospital for treatment, but he never recovered and died 19 from his injuries two days later. At the end of a ten-day trial, the jury convicted Minley 20 of one count of first-degree murder and two counts of 21 intentional or knowing child abuse under circumstances likely to cause death or serious injury – one for beating J.D. and the 22 other for failing to timely seek medical attention for him. 23 (Doc. 23 at 2.) 24 Petitioner timely appealed her case and the Arizona Court of Appeals affirmed the 25 convictions and sentences. (Doc. 13-1 Exh. B.) The Arizona Supreme Court denied her 26 petition for review on May 28, 2019. (Doc. 13-1 Exh. K.) 27 On October 18, 2019, Petitioner filed a Petition for Writ of Habeas Corpus arguing: 28 (1) she “was precluded from properly arguing the crux of her defense because of the trial 1 court’s failure to instruct on intoxication that could be applied to her co-defendant”; (2) the 2 state courts “failed to recognize” the state offered insufficient evidence to show she failed 3 to promptly seek medical attention; and (3) a proximate causation instruction was not given 4 at trial and proximate cause was not proven beyond a reasonable doubt. (Doc. 1.) In their 5 Answer, Respondents argued the petition should be denied because all three grounds are 6 meritless and Petitioner has not presented an excuse for her procedural default in Ground 7 Two. (Doc. 13.) In reply, Petitioner argued she “need not allege and prove an ‘excuse’ for 8 the default” because Ground Two is not procedurally defaulted. (Doc. 19 at 4.) 9 After the matter was fully briefed, Judge Macdonald issued an R&R recommending 10 the Court deny Petitioner’s Petition for Writ of Habeas Corpus. (Doc. 23.) For Ground 11 One, Judge Macdonald concluded “Petitioner’s consent at trial to the removal of the 12 requested voluntary intoxication instruction vitiate[d] her due process argument on habeas 13 review.” (Doc. 23 at 16–17.) Specifically, Judge Macdonald noted Petitioner failed to 14 meet her “heavy burden” to show the lack of the instruction infected the entire trial in a 15 manner that deprived her of a fair trial. (Id.) For Ground Two, Judge Macdonald 16 concluded Petitioner’s claim was procedurally defaulted and she had not met her burden to 17 show either cause or actual prejudice to overcome the default for that claim. (Id. at 17– 18 19.) For Ground Three, Judge Macdonald concluded Petitioner’s claim was meritless. (Id. 19 at 20.) Petitioner appears to only object to Grounds One and Two of the R&R. 20 III. LAW 21 Federal courts shall “entertain an application for a writ of habeas corpus in behalf 22 of a person in custody pursuant to the judgment of a State court only on the ground that he 23 is in custody in violation of the Constitution or laws of treaties of the United States.” 28 24 U.S.C. § 2254 (a) (emphasis added). Moreover, a petition for habeas corpus by a person in 25 state custody “shall not be granted with respect to any claim that was adjudicated on the 26 merits in State court proceedings unless the adjudication of the claim— (1) resulted in a 27 decision that was contrary to, or involved an unreasonable application of, clearly 28 established Federal law, as determined by the Supreme Court of the United States; or (2) 1 resulted in a decision that was based on an unreasonable determination of the facts in light 2 of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254 (d); see also 3 Cullen v. Pinholster, 563 U.S. 170 , 181 (2011). 4 On habeas review, the federal courts must consider whether the state court’s 5 determination was unreasonable, not merely incorrect. Schriro v. Landrigan, 550 U.S. 465 , 6 473 (2007); Gulbrandson v. Ryan, 738 F.3d 976, 987 (9th Cir. 2013). Such a determination 7 is unreasonable where a state court properly identifies the governing legal principles 8 delineated by the Supreme Court, but when the court applies the principles to the facts 9 before it, arrives at a different result. See Harrington v. Richter, 562 U.S. 86 (2011); 10 Williams v. Taylor, 529 U.S. 362 (2000); see also Casey v. Moore, 386 F.3d 896, 905 (9th 11 Cir. 2004). 12 IV. DISCUSSION 13 A. Objections to Ground #1: Intoxication Jury Instruction 14 Petitioner seemingly argues Judge Macdonald erred by agreeing “with the State 15 court’s opinion without any consideration” of her rebutting evidence. (Doc. 26 at 8.) 16 However, Petitioner ignores that the R&R concluded Petitioner’s due-process claim related 17 to the jury instruction was meritless because, as the Arizona Court of Appeals found, she 18 consented to the removal of the instruction at trial. (Doc. 23 at 16–17.) Petitioner does not 19 deny she consented to the instruction, nor does she present any meaningful explanation or 20 caselaw to support how the removal of the instruction denied her due process after she 21 consented to it. (Doc. 26.) Instead, she simply appears to rehash many of the arguments 22 she made to Judge Macdonald and the Arizona state courts. (Id.) This is improper 23 argument for an R&R objection. See Betancourt, 313 F. Supp.2d at 34 (R&R objections 24 should not “be construed as a second opportunity to present the arguments already 25 considered by the Magistrate Judge.”). Therefore, the Court concludes the objections to 26 Ground One are meritless.2 [27] 2Petitioner argues Judge Macdonald erred by finding Ground One was procedurally 28 defaulted. (Doc. 26 at 2–3.) Assuming, without deciding, this is correct, it is immaterial because Judge Macdonald found respondents waived any procedural default defense by 1 B. Objections to Ground #2: Motion for Directed Verdict 2 Petitioner does not object to the R&R’s finding that Ground Two is procedurally 3 defaulted. (See Doc. 26.) Instead, Petitioner argues, for the first time, that cause and 4 prejudice existed to excuse her default on Ground Two. (See id. at 9–10; see also Doc. 135 1 Exhs. H, I.) The Court will not consider this argument and the objection on this point is 6 overruled. See United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000) (“[A] district 7 court has discretion, but is not required, to consider evidence presented for the first time in 8 a party’s objection to a magistrate judge’s recommendation.”). 9 C. General Objections 10 Petitioner appears to have several general objections throughout the R&R. To the 11 extent Petitioner intended to raise other objections not addressed in this Order, the Court 12 concludes those objections lack sufficient specificity to trigger de novo review. See 13 Warling, 2013 WL 5276367 at *2; see also Midgette, 478 F.3d at 622 (“[A] party must 14 object to [a] finding or recommendation on [an issue in an R&R] with sufficient specificity 15 so as reasonably to alert the district court of the true ground for the objection.”). 16 Accordingly, 17 IT IS ORDERED: 18 1) Petitioner's Objection to the R&R (Doc. 26) is overruled. 19 2) Magistrate Judge Bruce G. Macdonald's Report and Recommendation (Doc. 23) 20 is accepted. 21 3) Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 22 (Doc. 1) is denied and dismissed with prejudice. 23 4) A Certificate of Appealability is denied because Petitioner has not made a 24 substantial showing of the denial of a constitutional right and dismissal of 25 ground two is justified by a plain procedural bar and jurists of reason would not 26 find it debatable whether the Court was correct in its procedural ruling. [27] 28 failing to assert it in their Answer. (Doc. 23 at 14.) Because the Court decided Ground One on the merits, the Court focuses on the merit-based objections for Ground One. 1 5) The Clerk of Court shall enter judgment accordingly and close this action. 2 Dated this 2nd day of May, 2023. [3] 4 {_fFath el 6 United States District Judge [28] -7-