Opinion
CV-19-05829-PHX-DJH
11-07-2022
Patrick Fittz, Petitioner, v. David Shinn, et al., Respondents.
ORDER
Honorable Diane J. Humetewa, United States District Judge
Before the Court is Petitioner Patrick Fittz's 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus (“Petition”) (Doc. 1) and Magistrate Judge Camille Bible's Report and Recommendation (“R&R”) (Doc. 23) recommending denial and dismissal of the Petition. The Magistrate Judge advised the parties that they had fourteen days from the date of service of a copy of the R&R to file specific written objections with the Court, and fourteen days within which to file responses to any objections. (Id.) Petitioner has filed his Objection to the R&R (Doc. 24) and Respondents have filed a Response (Doc. 25).
I. The Petition and R&R
Petitioner raises five grounds for relief in his Petition. He contends: (1) his due process rights were violated when the trial court tried and convicted him without jurisdiction over him; (2) his right to self-representation was violated when the trial court's appointed Petitioner counsel prior to granting his motion to represent himself; (3) his right to a speedy trial was violated; (4) the trial court lacked jurisdiction over the indictment because the indictment only charged misconduct involving weapons and not a prohibited possessor; and (5) his conviction was obtained in violation of the Thirteenth Amendment. (Doc. 1).
The R&R found that the first four of Petitioner's claims had been decided on the merits by the Arizona Court of Appeals and that the state court's rulings were not contrary to or an unreasonable application of clearly established federal law. (Doc. 23 at 18). It also found that Petitioner's Thirteenth Amendment claim was procedurally defaulted in the state courts and conclusory and unsupported. (Id.)
II. Standard of Review
This Court must “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which” a party objects. 28 U.S.C. § 636(b)(1)(C); see also Fed.R.Civ.P. 72(b)(3) (“The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (same). This Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(3).
III. Objections
Pursuant to the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the Court may not grant a writ of habeas corpus to a prisoner on a claim adjudicated on the merits in a state court unless the state court's decision denying the claim was “‘contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.'” Harrington v. Richter, 562 U.S. 86, 98 (2011), quoting 28 U.S.C. § 2254(d). The R&R applied this standard of review to the first four of Petitioner's claims, which were ruled on by the Arizona appeals court. Read liberally, Petitioner objects to this standard of review. He says that the lower court's decision was not based on the merits because “the merits of the factual dispute were not resolved”; because he “did not receive a ‘full and fair' hearing” at the trial level; because the state court “lacked jurisdiction of the subject matter over the person of this petitioner”; and because he was denied due process. (Doc. 24 at 1-2). After reviewing the record, the Court disagrees. The Arizona Court of Appeals plainly denied all four of Petitioner's claims on the merits. See State v. Fittz, 2018 WL 3730953, *2-3 (Ariz.Ct.App. July 26, 2018). In pertinent part, the Arizona Court of Appeals rejected:
• Petitioner's argument that the trial court lacked subject matter jurisdiction over his conviction (Ground 1) “because the superior court has original jurisdiction over criminal cases involving a felony, Ariz. Const. art. 6, § 14(4), and there is no dispute that Fittz was charged with and convicted of a felony”;
• Petitioner's argument that the trial court lacked subject matter jurisdiction because it had “broadened the scope of the indictment [to] permit[] conviction for an uncharged offense” because “the jury was instructed properly” because “a person commits the crime of misconduct involving weapons by ‘possessing a deadly weapon . . . if such person is a prohibited possessor.' A.R.S. § 13-3102(A)(4)”;
• Petitioner's argument that the superior court violated his right to self-representation by appointing an attorney to represent him before he waived his right to counsel because he could “provide[] no authority-and we are unaware of any-for the proposition that a defendant's rights are violated by appointing counsel before a court has determined that the defendant has knowingly, voluntarily, and intelligently waived his right to counsel”; and
• Petitioner's argument that he was denied the right to a speedy trial when the state failed to file a complaint within 48 hours of his initial appearance because the complaint, was in fact “timely” under Arizona rules of computation, which excludes Saturdays and Sundays when computing a time period of more than 24 hours, but less than 7 days.Id. Accordingly, the Magistrate Judge did not err in applying a merits standard of review to Grounds 1-4. This objection is overruled.
Petitioner next objects to the R&R's recommendation that his Thirteenth Amendment claim be dismissed as procedurally defaulted and unsupported. Petitioner asks the Court “to take into consideration the petitioner is untrained in law, has filed the appeal and this application pro per; and that the facts required to adjudicate this issue already are a matter of existing record.” (Doc. 24 at 2). Generally, ignorance of the law or legal process does not constitute cause to excuse procedural default of a claim. Hughes v. Idaho State Bd. Of Corr., 800 F.2d 905, 909 (9th Cir. 1986). But even if the Court were to excuse Petitioner's failure to properly present the claim to the state courts such that it would be proper to review the merits, Petitioner does not provide the Court will any factual or legal authority to support such a claim. The R&R similarly noted the lack of support, and opined that the claim did not seem to be an independent one, but “offered in support of Fittz's claim that the state court did not have jurisdiction to try and convict him. . .” (Doc. 23 at 17). This Court agrees. Petitioner's second objection is therefore also overruled.
The remainder of Petitioner's Objection reiterates the arguments he makes in his Petition and does not specifically address any perceived deficiencies with the findings and conclusions in the R&R. Accordingly, these arguments are not reviewed de novo. Warling v. Ryan, 2013 WL 5276367 at *2 (D. Ariz. Sept. 19, 2013). The Court has nevertheless reviewed the Petition and records in this matter, and is left with the firm conviction that the Magistrate Judge's recommendations are well-taken and supported by a correct application of the law.
Accordingly, IT IS ORDERED that Magistrate Judge Bible's Report and Recommendation (Doc. 23) is ACCEPTED and ADOPTED as the Order of this Court.
IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) is DENIED and DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis on appeal are DENIED because dismissal of the Petitioner is justified by a plain procedural bar and reasonable jurists would not find the ruling debatable, and because Petitioner has not made a substantial showing of a denial of a constitutional right.
IT IS FINALLY ORDERED that the Clerk of the Court shall terminate this action and enter judgment accordingly.