1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Jenghiz Kn Stewart, 

Petitioner, 

v. 

Charles L. Ryan, et al., 

Respondents.

No. CV-18-00247-PHX-GMS

ORDER 

Pending before the Court are Petitioner Jenghiz Kn Stewart’s Petition for Writ of 

Habeas Corpus (Doc. 1) and United States Magistrate Judge John Z. Boyle’s Report and 

Recommendation (“R&R”), which recommends that the Court deny the Petition. (Doc. 

16). Stewart timely filed objections to the R&R. (Doc. 17). For the following reasons, 

the Court denies the Petition and accepts the R&R. 

BACKGROUND

 Because no party has objected to the procedural background as set forth in the R&R, 

the Court adopts the background set forth therein. (Doc. 16 at 2-3). 

 Magistrate Judge Boyle recommends that Stewart’s petition be denied and 

dismissed with prejudice. (Doc. 16 at 16). Stewart timely objects to three of the Magistrate 

Judge’s conclusions. (Doc. 17). He argues that Ground Three is not procedurally 

defaulted. (Id. at 7). He also argues that the Magistrate Judge incorrectly determined that 

Grounds One and Two lack merit. (Id. at 15). Because the R&R correctly analyzed 

Stewart’s claims, his petition for habeas corpus will be denied. 

/ / / 
- 2 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

STANDARD OF REVIEW

 This court “may accept, reject, or modify, in whole or in part, the findings or 

recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). “[T]he district judge 

must review the magistrate judge’s findings and recommendations de novo if objection is 

made, but not otherwise. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 

2003) (en banc) (emphasis in original). District courts are not required to conduct “any 

review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 

U.S. 140, 149 (1985). 

DISCUSSION

I. Procedural Bar and Exhaustion of State Remedies 

Stewart initially argues that the Magistrate Judge incorrectly determined that 

Ground Three of his petition, the vindictive prosecution claim, was procedurally defaulted. 

(Doc. 17 at 11–12). 

The writ of habeas corpus affords relief to persons in custody in violation of the 

Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(c)(3). Review of 

Petitions for Habeas Corpus is governed by the Antiterrorism and Effective Death Penalty 

Act of 1996 (“AEDPA”). 28 U.S.C. § 2244 et seq. For a state prisoner to obtain review 

of his federal claims in federal court, he must first exhaust all available state remedies. 28 

U.S.C. § 2254(b)(1)(A). 

To exhaust state remedies, a prisoner must “fairly present” his claims to the 

appropriate state court. See Coleman v. Thompson, 501 U.S. 722, 731 (1991) (holding that 

“a state prisoner’s federal habeas petition should be dismissed if the prisoner has not 

exhausted available state remedies as to any of his federal claims.”). A prisoner must 

describe “both the operative facts and the federal legal theory on which his claim is based 

so that the state courts have a fair opportunity to apply controlling legal principles to the 

facts bearing upon his constitutional claim.” Castillo v. McFadden, 399 F.3d 993, 999 (9th 

Cir. 2004) (citations omitted). In Arizona, for non-capital cases, a petitioner does not 
- 3 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

exhaust a claim for purposes of federal review unless he has presented it to the Arizona 

Court of Appeals. Id. at 998. 

Procedural default occurs when a petitioner has not exhausted a federal habeas claim 

by first presenting the claim in state court and is now barred from doing so by the state's 

procedural rules (including rules regarding waiver and preclusion). Castille v. Peoples, 

489 U.S. 346, 351 (1989). If a state court properly applies a state procedural bar during 

post-conviction proceedings that prevents the state court from considering the merits, those 

claims are also procedurally defaulted. Davila v. Davis, 137 S.Ct. 2058, 2064 (2017). 

 In the event of procedural default, habeas review is foreclosed absent a showing of 

“cause and prejudice.” Reed v. Ross, 468 U.S. 1, 11 (1984). To demonstrate cause, a 

petitioner must show that “some objective factor external to the defense” impeded his 

efforts to raise the claim in state court. Davila v. Davis, 137 S. Ct. at 2065 (internal 

citations and quotations omitted); McCleskey v. Zant, 499 U.S. 467, 493 (1991). “Prejudice 

is actual harm resulting from the alleged constitutional violation.” Thomas v. Lewis, 945 

F.2d 1119, 1123 (9th Cir.1992) (internal quotation omitted). 

A. State Court Post-Conviction Relief Proceedings 

In July of 2016, Stewart filed a petition for post-conviction relief in Maricopa 

County Superior Court. (Doc. 11, Ex. K). There he alleged five separate grounds for relief, 

including that his sentence was disproportionally long, that the conviction lacked evidence, 

and that the court was biased against him. (Doc. 11 Ex. N. at 1). On appeal, the Arizona 

Court of Appeals grouped the five separate grounds into these three general categories. At 

no point during these appeals did either court address a claim of vindictive prosecution. 

In his petition before this Court, Stewart alleges that the Petition to Revoke 

Probation was “an act of vindictive prosecution” by his probation officer, because Stewart 

had asserted a right to continue in his church ministry.1

 While Stewart points to evidence 

 

1

 As Magistrate Judge Boyle correctly notes, Stewart’s probation officer was not prohibiting him from continuing to attend church. Rather, his probation officer was concerned that he was “running a church,” “soliciting community donations,” and through this arrangement he was “associating with individuals who have criminal records without 

the permission of the Adult Probation Department and violating sex offender treatment rules.” (Doc. 11-1, Ex. D, at 28). 
- 4 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

in his post-conviction relief petitions that argues that he was treated unfairly, (Doc. 17 at 

4), he did not present “both the operative facts and the federal legal theory” to support his 

claim. Castillo, 399 F.3d at 999. In his objections to the R&R, Stewart even acknowledges 

that his claim for vindictive relief was “not enumerated within those petitions.” (Doc. 17 

at 7). Because Stewart failed to present this claim to the Arizona Court of Appeals, it is 

procedurally defaulted. See Castillo, 399 F.3d at 998. 

B. Petitioner Has Not Presented Cause to Excuse His Procedural Default 

Stewart fails to demonstrate cause that would forgive his procedural default. He 

does not point to any outside factors “external to [his] defense” that impeded him from 

presenting his claim to the Arizona Court of Appeals. See Davila, 137 S.Ct. at 2064. 

Stewart possessed all of the relevant facts when he presented his post-conviction relief 

petition in state court but failed to allege his claim of vindictive prosecution. The Court 

cannot therefore proceed to the merits of his vindictive prosecution claim. 

II. Merits Review of Remaining Claims 

 As for the merits review, Stewart only objects to the Magistrate Judge’s conclusions 

as to Grounds One and Two (Doc. 17 at 15), but not for Grounds Four, Five or Six. 

Magistrate Judge Boyle found that none of Stewart’s remaining claims entitled him to 

relief. (Doc. 16 at 16). Because Stewart objected Magistrate Judge Boyle’s conclusions 

as to Grounds One and Two only, the Court’s de novo review is limited to those counts. 

 When reviewing habeas claims, a federal court may not grant habeas relief unless 

the state’s adjudication of the claims resulted in a decision that was contrary to, or involved 

an unreasonable application of, clearly established federal law as determined by the 

Supreme Court, or resulted in a decision that was based on an unreasonable determination 

of the facts in light of the evidence presented in the state court proceedings. 28 U.S.C. § 

2254(d)(1); see Robertson v. Pichon, 849 F.3d 1173, 1182 (9th Cir. 2017). “This is a 

difficult to meet and highly deferential standard for evaluating state-court rulings, which 

demands that state-court decisions be given the benefit of the doubt.” Cullen v. Pinholster, 

563 U.S. 170, 181 (2011) (internal citations and quotations omitted). Review of a prior 
- 5 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

state court decision under § 2254(d)(1) by a federal court is limited to the record “before 

the state court that adjudicated the claim on the merits.” Id. “When reviewing state criminal 

convictions on collateral review, federal judges are required to afford state courts due 

respect by overturning their decisions only when there could be no reasonable dispute that 

they were wrong.” Woods v. Donald, 135 S.Ct. 1372, 1376 (2015). 

 A. Disproportionate and Unfair Sentence 

In his petition, Stewart argues that his sentence was disproportionate when 

considering the actual probation violations he committed, and that his sentence was also 

generally unfair in light of those violations. To prevail, Stewart must establish either that 

the Court of Appeals decision was unreasonable considering clearly established Supreme 

Court precedent, or that the decision rested upon an unreasonable determination of the 

facts. 

Generally, outside of the capital context, “successful challenges to the 

proportionality of particular sentences have been exceedingly rare.” Rummel v. Estelle, 

445 U.S. 263, 272 (1980). And even without the benefit of AEDPA’s deferential standard 

of review, trial courts typically have broad discretion in sentencing so long as they impose 

sentences within the bounds of the statute. See, e.g., United States v. Garrett, 680 F.2d 

650, 652 (9th Cir. 1982) (“The matter of sentencing is within the discretion of the 

sentencing judge and is generally not reversible as long as the sentence falls within the 

bounds set by statute.”); United States v. Gutierrez-Sanchez, 587 F.3d 904, 908 (9th Cir. 

2009) (“The weight to be given the various factors in a particular case is for the discretion 

of the district court.”). The sentence that was imposed here was the presumptive sentence 

under the statute, and the Court considered the evidence presented concerning it that 

included Stewart’s own testimony about the severity of his actions. (Doc. 11-1 Ex. D). 

Stewart fails to demonstrate that the Arizona Court of Appeals decision to uphold his 

sentence involved an unreasonable application of Supreme Court precedent as to the 

proportionality or fairness of his sentence. 

/ / / 
- 6 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

CONCLUSION

 Magistrate Judge Boyle correctly determined that Stewart’s vindictive prosecution 

claim was procedurally barred, and that his remaining claims failed on the merits. 

Therefore, 

 IT IS ORDERED that Magistrate Judge Boyle’s R&R (Doc. 16) is adopted. 

 IT IS FURTHER ORDERED denying and dismissing with prejudice the 

Petitioner’s Petition for the Writ of Habeas Corpus (Doc. 1). 

 IT IS FURTHER ORDERED that the request for a Certificate of Appealability 

and leave to proceed in forma pauperis on appeal is DENIED because dismissal of the 

Petition is justified by a plain procedural bar and jurists of reason would not find the ruling 

debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). 

 IT IS FURTHER ORDERED directing the Clerk of Court to terminate this action 

and enter judgment accordingly. 

 Dated this 1st day of March, 2019.