Opinion
CV-22-00533-PHX-SRB
11-21-2023
Wade Eugene Bradford, Petitioner, v. David Shinn, et al., Respondents.
NOT FOR PUBLICATION
ORDER
SUSAN R. BOLTON, UNITED STATES DISTRICT JUDGE
Petitioner, Wade Eugene Bradford filed a timely Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody and later filed an Amended Petition raising ten grounds for relief. Respondents file a Limited Answer asserting that Grounds One and Two were not cognizable habeas claims and that Grounds Three through Ten were procedurally defaulted with the exception of one ineffective assistance of counsel claim raised within the facts section of Ground Five. Petitioner filed a Reply to the Limited Answer.
The Magistrate Judge issued her Report and Recommendation on May 26, 2023 finding that Grounds One and Two were not cognizable claims, that Grounds Three through Ten (with the exception of one ineffective assistance claim) were procedurally defaulted without excuse, and that the ineffective assistance claim was without merits. The Magistrate Judge recommended that Grounds One and Two be dismissed with prejudice for failing to raise cognizable habeas claims, that Grounds Three through Ten be dismissed for failure to exhaust and that the claim within Ground Five that counsel was ineffective
for failing to investigate Petitioner's mental health history be denied on the merits. The Magistrate Judge also recommended that a certificate of appealability and leave to proceed in forma pauperis on appeal be denied.
After receiving an extension of time to file his Objections to the Report and Recommendation until July 20, 2023, Petitioner filed a 61-page Objection which was later stricken by the Court. Petitioner then was granted another extension of time to file Objections. Petitioner filed his Objections on August 24, 2023. Respondents have filed their Response to the Objections and Petitioner has filed an unauthorized Reply.
Petitioner has filed other Motions with the Court which will be addressed later in this Order.
Petitioner first argues in his Objections that his pro se Petition was not liberally construed by the Magistrate Judge. This is demonstrably untrue as shown by the Magistrate Judge's liberal reading of Petitioner's claim of ineffective assistance of counsel and consideration of that claim on the merits despite its questionable lack of exhaustion.
In his remaining Objections, Petitioner object to virtually everything in the Report and Recommendation listing 20 objections but failing to explain how the Magistrate Judge erred in her analysis and recommendations. He takes issues with the accurate recitation of the state court record and offers instead his own version of the record based on his affidavit. As Respondents argue, the Magistrate Judge was required to make a Report and Recommendation on the Amended Habeas Petition. She was not required to consider Petitioner's 89-page affidavit detailing his narrative of the state court proceedings, his alleged conditions of confinement, his claimed interaction with his attorneys and his mental health history. The Magistrate Judge's task was to analyze the state court record for constitutional deprivations if such claims were exhausted in state court before Petitioner brought them to federal court seeking habeas relief.
The Court rejects Petitioner's Objections because they fail to demonstrate any error in the Magistrate Judge's Report and Recommendation, are a re-argument of the Petition, and suggest obligations on the federal court to rule on claims not cognizable on habeas review and to decide unexhausted claims on the merits. The Court agrees with the Magistrate Judge that Petitioner has made no showing of actual innocence or of a “cause and prejudice” that would excuse his procedural default.
Petitioner objects to the Magistrate Judge's recommendation for denial of his claim in Ground Five that his trial attorney was ineffective in failing to investigate his mental health history. But as the Magistrate Judge related, Petitioner's counsel filed a Rule 11 Motion for an evaluation of Defendant's competency to stand trial, the Motion was granted, Petitioner was evaluated by two doctors who prepared written reports presented to the trial judge, and the trial judge found Petitioner competent. The Court agrees with the Magistrate Judge that Petitioner has failed to demonstrate that any further investigation by his trial counsel would have resulted in a finding that he was not competent to stand trial.
The Court agrees with the Report and Recommendations of the Magistrate Judge and Petitioner's objections will be overruled.
The Court will also deny the following motions for the following reasons:
Petitioner's Motion for Leave to file Motion to Amend Petition (Doc. 53) is denied. Petitioner offered this motion in lieu of filing objections to the Report and Recommendation. He failed to explain how he wished to amend his already amended Petition and how any amendment would cure the failures to exhaust and the non-cognizable claims.
Petitioner's Motion for Leave Court Consider Affidavit-Brain Damage (Doc. 58) and Motion for Leave Court Consider Supporting Documents to Petitioner's Objections to Magistrate's Report and Recommendation (Doc. 62) are denied. The 12-page affidavit of Petitioner and the 33-pages of additional argument also repeat the same arguments previously raised before the Magistrate Judge and are nothing more than additional meritless objections to the Report and Recommendation.
Petitioner's Motion to Appoint Counsel (Doc. 67) and Motion to Modify Custody to Release on Bail (Doc. 70) are denied. The Court has found no merit to Petitioner's Objections to the Magistrate Judge's Report and Recommendation and agrees with its recommendations for dismissal and denial of the Petition. Because the Court has concluded that Petitioner is not being held in violation of the Constitution and laws of the United States, no release could be justified even if this Court had the authority to grant it. Moreover, because the Petition is meritless and the Court will be denying a Certificate of Appealability, there is no basis for the Court to consider appointment of counsel.
IT IS ORDERED overruling Petitioner's Objections to Magistrate's Report and Recommendation. (Doc. 57)
IT IS FURTHER ORDERED adopting the Report and Recommendation of the Magistrate Judge as the Order of this Court. (Doc. 43)
IT IS FURTHER ORDERED dismissing Grounds One and Two of the Amended Petition for failure to allege cognizable habeas claims.
IT IS FURTHER ORDERED dismissing Grounds Three and Four and Six through Ten of the Amended Petition for failure to exhaust.
IT IS FURTHER ORDERED denying Ground Five alleging ineffective assistance of trial counsel for alleged failure to investigate Petitioner's mental health history.
IT IS FURTHER ORDERED denying Petitioner's Motion for Leave to file Motion to Amend Petition. (Doc. 53)
IT IS FURTHER ORDERED denying Petitioner's Motion for Leave Court Consider Affidavit-Brain Damage and Motion for Leave Court Consider Supporting Documents to Petitioner's Objections to Magistrate's Report and Recommendation. (Docs 58 and 62)
IT IS FURTHER ORDERED denying Petitioner's Motion to Appoint Counsel and Motion to Modify Custody to Release on Bail. (Docs. 67 and 70)
IT IS FURTHER ORDERED denying a Certificate of Appealability and leave to proceed in forma pauperis on appeal because the denial of the motion is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable and because Petitioner has not made a substantial showing of the denial of a constitutional right.
IT IS FURTHER ORDERED directing the Clerk to enter judgment accordingly.