Opinion
CV-22-00813-PHX-MTL (DMF)
08-01-2023
Alfred Erik Caraffa, Petitioner, v. Arizona Department of Corrections, et al., Respondents.
HONORABLE MICHAEL T. LIBURDI, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION
Honorable Deborah M. Fine United States Magistrate Judge.
This matter is on referral to the undersigned for further proceedings and a report and recommendation pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure. (Doc. 40 at 17; Doc. 71)
I. PERTINENT PROCEDURAL HISTORY
Petitioner Alfred Erik Caraffa (“Petitioner”), who is confined in the Arizona State Prison Complex in Tucson, Arizona, filed a pro se Petition Under 28 U.S.C. § 2254 by a Person in State Custody (“Petition”) on May 9, 2022. (Doc. 1) The Court denied Petitioner's first and second Applications to Proceed In Forma Pauperis. (Docs. 9, 14, 15, 16) On November 2, 2022, the Court granted Petitioner's third Application for Leave to Proceed In Forma Pauperis, but dismissed the Petition with leave to amend within 30 days of the Court's Order. (Docs. 19, 29)
The original Petition was docketed by the Clerk of Court on May 12, 2022. (Doc. 1) The Petition contains a declaration by Petitioner that Petitioner placed the Petition in the prison mailing system on May 9, 2022. (Id. at 15) This Report and Recommendation uses May 9, 2022, as the relevant filing date for the original Petition. Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (“A petition is considered to be filed on the date a prisoner hands the petition to prison officials for mailing.”).
On November 29, 2022, the Court ordered Petitioner to file an amended petition by December 9, 2022, or risk dismissal of this action. (Doc. 32) Because Petitioner failed to file an amended petition by December 9, 2022, the Court dismissed this matter without prejudice on January 5, 2023. (Doc. 34)
On January 9, 2023, the Clerk of Court filed Petitioner's Amended Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (“Amended Petition”) as well as an accompanying statement of facts. (Docs. 36, 38) On January 25, 2022, the Court vacated its January 5, 2023, judgment dismissing this matter and reopened this matter because “it appear[ed] Petitioner made a good faith effort to timely file the Amended Petition[.]” (Doc. 40) The Court dismissed all Respondents except the Arizona Department of Corrections, Rehabilitation & Reentry (“ADCRR”) Director and the Arizona Attorney General and ordered Respondents ADCRR Director and the Arizona Attorney General to answer Grounds 1, 2, 4, 5, 6, 7, 10, 11, 12, and 32 of the Amended Petition. (Id.)
On March 1, 2023, the Court granted Respondents an extension to file an answer to the Amended Petition. (Doc. 50) On March 23, 2023, Respondents filed their Limited Answer to the Amended Petition. (Doc. 55)
On April 3, 2023, the Clerk of Court filed Petitioner's motion titled “Violation of Constitutional Statute by the Court.” (Doc. 58) On May 5, 2023, the Clerk of Court filed Petitioner's “Motion of Default Federal Rule of Civil Procedure Rule 55(a)” (Doc. 66), reply to Respondents' Limited Answer to the Amended Petition (Doc. 67), and motion for recusal of District Judge Michael T. Liburdi and Magistrate Judge Eileen Willett (Doc. 68). Petitioner's motion for appointment of counsel (Doc. 60) was denied without prejudice, allowing Petitioner to “renew the motion for appointment of counsel if the Court later determines that a hearing in front of the District Judge is warranted” (Doc. 72). On May 15, 2023, the Clerk of Court filed Petitioner's motion titled “Notice of Revoked Motion of Default under Federal Rule of Civil Procedures Rule 55(a) Default.” (Doc. 73) On May 24, 2023, the Clerk of Court filed Petitioner's additional statement of facts regarding the exhibits to Respondents' Limited Answer and the claims in the Amended Petition. (Doc. 75) Petitioner has since filed several notices in this action. (Docs. 79, 80) In addition, Petitioner has filed another motion for recusal, which is virtually identical to the previous motion. (Docs. 68, 82) Petitioner has also filed another Application to Proceed In Forma Pauperis. (Doc. 81) On July 28, 2023, the Clerk of Court filed as a “notice” by Petitioner a copy of Respondents' Limited Answer with Petitioner's annotations. (Doc. 84)
On May 8, 2023, following Magistrate Judge Eileen Willett's recusal from this matter (Doc. 70"), this matter was reassigned to the undersigned as the referred United States Magistrate Judge (Doc. 71). The recusal motion also lists District Judge Jennifer G. Zipps, who is not assigned to this matter. (Doc. 62)
For the reasons set forth below, it is recommended that these proceedings be dismissed with prejudice, the Clerk of Court be directed to terminate this matter, and a certificate of appealability be denied. It is further recommended that Petitioner's pending motions, including “Violation of Constitutional Statute by the Court” (Doc. 58), “Motion of Default Federal Rule of Civil Procedure Rule 55(a)” (Doc. 66), “Motion to recuse Judge For Constitutional violations and conflict of Interest” (Doc. 68), “Notice of Revoked Motion of Default under Federal Rule of Civil Procedures Rule 55(a) Default” (Doc. 73), Application to Proceed In Forma Pauperis (Doc. 81) and motion for recusal (Doc. 82), be denied and that the Court either strike or take no action in this matter regarding Petitioner's notices (Docs. 79, 80, 84).
II. BACKGROUND
A. Charge, Conviction, and Sentence
On December 16, 2019, in Maricopa County Superior Court case number CR2019-155732-001, a grand jury indicted Petitioner with one crime: one count of armed robbery, a class 2 felony. (Doc. 55-1 at 3-4) The trial court appointed counsel to represent Petitioner. (Id. at 10) On December 24, 2019, Petitioner entered a not guilty plea at Petitioner's arraignment. (Id. at 10-13) After competency proceedings in 2020 and in early 2021, Petitioner was found competent to proceed to trial. (Id. at 77-78)
https://courtminutes.maricopa.gov/viewerMEiasp?fn=Criminal/01202.1/m9421383pdf (last accessed on 7/31/2023).
After a three-day jury trial in August 2021, a jury convicted Petitioner of the one count of armed robbery as charged in the indictment. (Id. at 28, 32; see also id. at 15-17, 19-23, 25-30) The jury found that the state had proven three aggravating factors: (1) the offense involved the taking of or damage to property, (2) the offense caused physical, emotional, or financial harm to the victim, and (3) Petitioner committed the offense as consideration for the receipt, or in the expectation of the receipt, of anything of pecuniary value. (Id. at 30, 34) Following Petitioner's jury trial, the trial court conducted a trial regarding the state's allegation of Petitioner's prior convictions and determined that the state had proven by clear and convincing evidence that Petitioner was convicted of three prior felony offenses: (1) aggravated arson, committed in 2003, (2) burglary in the second degree, committed in 1991, and (3) carrying a concealed dirk or dagger, committed in 2018. (Id. at 36-37)
On October 1, 2021, the trial court sentenced Petitioner to a 16-year term of imprisonment with 665 days of presentence credit. (Id. at 39-41)
B. Direct Appeal
On December 28, 2021, the clerk of the Maricopa County Superior Court filed Petitioner's notice of appeal of Petitioner's conviction and sentence in Maricopa County Superior Court case number CR2019-155732-001, along with a motion to change counsel.(Id. at 45-54) In Petitioner's notice of appeal, Petitioner stated that Petitioner was appealing “violations of speedy trial, misrepresentation of counsel, misdiagnosis of mental illness, [and] violations of filing appeal.” (Id. at 45) On January 3, 2022, the Arizona Court of Appeals dismissed Petitioner's appeal for lack of jurisdiction, stating that Petitioner did not file an appeal within 20 days after sentencing as required by Ariz. R. Crim. P. 31.2(a)(2). (Id. at 56-57) The mandate issued on February 15, 2022. (Id. at 58)
It appears that Petitioner signed the filings twice, once on November 3, 2021, and again on December 14, 2021, before mailing such to the superior court. (Id. at 49, 52-54) The first post-sentencing notice of appeal reflected in the superior court's docket is the one filed on December 28, 2021. (Doc. 55-1 at 74)
C. Additional Filings by Petitioner
In early 2021, after the superior court's competency finding and prior to Petitioner's jury trial, Petitioner's state habeas corpus motion was filed in the superior court. (Id. at 72, 76) Also before Petitioner's jury trial, the Arizona Supreme Court received and filed Petitioner's motion titled “Notice to New On-going Evidence in Writ of Habeas Corpus” on May 26, 2021. (Id. at 60-70) On June 28, 2021, the Arizona Supreme Court construed Petitioner's motion as a supplement to Petitioner's pro se “Motion to Dismissal Under Writ of Habeas Corpus” filed on February 16, 2021, in the superior court. (Id. at 72) Because Petitioner did not have a habeas petition pending in the Arizona Supreme Court, the supreme court dismissed Petitioner's motion. (Id.)
On January 28, 2022, Petitioner filed a motion for Petitioner's case file, transcripts, and evidence. (Id. at 43) On March 9, 2022, the superior court denied Petitioner's motion because Petitioner had no pending appeal or post-conviction relief (“PCR”) proceedings. (Id.) The superior court's order stated that if Petitioner “files a timely PCR, he may refile this request, which will be addressed by the PCR Unit.” (Id.)
Noteworthy is that Petitioner did not file any PCR proceedings after his conviction and sentence. (Id. at 43, 74)
Prior to filing the present habeas action, Petitioner filed numerous prison condition and prisoner civil rights actions in this Court, the Ninth Circuit Court of Appeals, and the United States Supreme Court. (Id. at 81-87, 89-94, 96-99) In March 2020, Petitioner filed a habeas corpus action in this Court (Case 2:20-CV-00598-PHX-MTL--ESW, Doc. 1). Later in March 2020 and still more than a year before Petitioner's superior court jury trial, the Court dismissed without prejudice Petitioner's habeas corpus proceedings because of the ongoing prosecution proceedings in Maricopa County Superior Court case number CR2019-155732-001 (Case 2:20-CV-00598-PHX-MTL--ESW, Doc. 5).
III. HABEAS CLAIMS
These habeas proceedings were filed in May 2022. (Doc. 1) In Petitioner's January 9, 2023, Amended Petition, Petitioner asserted 49 grounds for relief. (Doc. 36) On January 25, 2023, the Court ordered Respondents to answer Grounds 1, 2, 4, 5, 6, 7, 10, 11, 12, and 32 of the Amended Petition and dismissed the remaining grounds because they “do not lie at the core of habeas corpus and, therefore, may not be brought in this [§ 2254] habeas corpus action.” (Doc. 40 at 6-7, 15)
In Ground 1 of the Amended Petition, Petitioner asserts a violation of Petitioner's Fourteenth Amendment right to due process because there was no “constitutional seal of the superior court of Maricopa County[.]” (Doc. 36 at 9-11) In Ground 2, Petitioner asserts that Petitioner was denied a speedy and public trial under the Sixth Amendment. (Id. at 1112) In Ground 4, Petitioner asserts a Fourteenth Amendment due process violation because the prosecution tampered with and altered evidence used in Petitioner's trial. (Id. at 15-16) In Ground 5, Petitioner asserts a Fourteenth Amendment due process violation because the indictment against Petitioner and the summons were not stamped by the superior court clerk until January 3, 2020, resulting in no indictment having been filed when Petitioner was arraigned on December 24, 2019. (Id. at 17) In Ground 6, Petitioner asserts a Fourteenth Amendment due process violation because the indictment against Petitioner “was not transcribed as ‘A true and correct' document until” December 27, 2019, resulting in no indictment having been filed when Petitioner was arraigned on December 24, 2019. (Id. at 17-18) In Ground 7, Petitioner asserts a Fourteenth Amendment due process violation due to defects in the charging documents in “the original and supplemental Phoenix Police Report.” (Id. at 18-19) In Ground 10, Petitioner asserts a Fourteenth Amendment due process violation because the trial court judge ruled that the “original Phoenix Police Report and Supplemental Police Report ‘were not evidence in this case,' which the Jury did not get to view[.]” (Id. at 21-22) In Ground 11, Petitioner asserts a Fourteenth Amendment due process violation and asserts that Petitioner's trial was unconstitutional because there was “NO legal and Lawful Arraignment by the Superior Court of Maricopa County[,]” “NO plea on the criminal charge was Lawfully Entered[,]” and “NO Arraignment was held” after December 24, 2019. (Id. at 23) In Ground 12, Petitioner asserts a Fourteenth Amendment due process violation because Petitioner's sentence was outside sentencing guidelines. (Id. at 24) In Ground 32, Petitioner asserts a Fourteenth Amendment due process violation because the trial prosecutor gave notice for a Rule 20 hearing, Petitioner asked defense counsel what Rule 20 was, and the trial judge stated that since Petitioner “doesn't know, we'll just proceed.” (Id. at 44-45) With Petitioner's Amended Petition, Petitioner filed a “Statement of the Facts - (Basic) (facts of some of the unconstitutional violations in this case.)” (Doc. 38) In this statement of facts, Petitioner reasserts the claims in Grounds 1, 5, 6, and 10 of the Amended Petition. (Id. at 5-8)
In their Limited Answer to the Amended Petition, Respondents assert that the Amended Petition is untimely without excuse. (Doc. 55 at 4-7) Respondents argue that the filing date of the Amended Petition does not relate back to the filing date of the original Petition, which Respondents concede was within the statute of limitations period. (Id. at 58) Respondents further argue that Petitioner's claims in the Amended Petition are procedurally defaulted without excuse. (Id. at 8-12)
In reply, Petitioner reiterates Petitioner's Grounds 1, 2, 4, 5, 6, 7, and 11 claims and asserts that Ariz. R. Crim. P. 32.1(a)(2) violates the First Amendment. (Doc. 67 at 2-3, 56, 10-11, 14-18) Petitioner's assertions and arguments include that the Arizona Court of Appeals dismissal of Petitioner's direct appeal was improper, that Petitioner was not present at Petitioner's trial dates and at various state court hearings, that Petitioner did not initiate PCR proceedings because a state court proceeding would be unconstitutional until these habeas proceedings are heard on the merits, that Petitioner sought relief in the state courts after the dismissal of a previous habeas action in this Court (case number 2:20-CV-00598-PHX-MTL--ESW), that Respondents did not address the Amended Petition grounds in their Limited Answer, and that Petitioner filed the Petition prior to the expiration of AEDPA's statute of limitations period. (Id. at 3-4, 6-13) In an unauthorized filing in the form of an annotated copy of Respondents' Limited Answer filed by the Clerk of Court July 28, 2023, Petitioner reasserts that the Petition is timely and that the Arizona Court of Appeals improperly dismissed Petitioner's direct appeal. (Doc. 84 at 2-10)
On May 24, 2023, Petitioner filed an additional statement of facts asserting arguments related to Grounds 1, 2, 5, and 6 of the Amended Petition, as well as new arguments beyond Grounds 1, 2, 4, 5, 6, 7, 10, 11, 12, and 32 of the Amended Petition. (Doc. 75) This Report and Recommendation addresses the claims in the pending grounds of the Amended Petition. This Report and Recommendation does not address claims not properly before the Court at this time.
IV. PROCEDURAL DEFAULT OF AMENDED PETITION GROUNDS 1, 2, 4, 5, 6, 7, 10, 11, 12, & 32
In their Limited Answer, Respondents argue that Grounds 1, 2, 4, 5, 6, 7, 10, 11, 12, and 32 of the Amended Petition are untimely and procedurally defaulted because these claims in the Amended Petition do not relate back to the timely filing of the original Petition. It appears that at least one of the pending grounds in the Amended Petition may relate back to the filing date of the original Petition. Thus, the Court proceeds to Respondents' argument regarding procedural default because procedural default resolves all of the claims in the pending grounds of the Amended Petition.
A. Legal Framework
1. Exhaustion and Procedural Default
A state prisoner must properly exhaust all state court remedies before this Court may grant an application for a writ of habeas corpus. 28 U.S.C. § 2254(b)(1), (c); Duncan v. Henry, 513 U.S. 364, 365 (1995); Coleman v. Thompson, 501 U.S. 722, 731 (1991). Arizona prisoners properly exhaust state remedies by fairly presenting claims to the Arizona Court of Appeals in a procedurally appropriate manner. O 'Sullivan v. Boerckel, 526 U.S. 838, 843-45 (1999); Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999). To be fairly presented, a claim must include a statement of the operative facts and the specific federal legal theory. Baldwin v. Reese, 541 U.S. 27, 32-33 (2004); Gray v. Netherland, 518 U.S. 152, 162-63 (1996); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (“The mere similarity between a claim of state and federal error is insufficient to establish exhaustion.”).
In Arizona, a petitioner must fairly present his or her claims to the Arizona Court of Appeals by properly pursuing them through the state's direct appeal process or through appropriate post-conviction relief. See Swoopes, 196 F.3d at 1010; Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994); Castillo v. McFadden, 399 F.3d 993, 998 & n.3 (9th Cir. 2005). Fair presentment of claims to the Arizona Court of Appeals requires a description of “both the operative facts and the federal legal theory on which [a] claim is based so that the state courts [could] have a ‘fair opportunity' to apply controlling legal principles to the facts bearing upon [the] constitutional claim.” McFadden, 399 F.3d at 999 (quoting Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003)).
It is not fair presentment, for example, that “all the facts necessary to support the federal claim were before the state courts . . . or that a somewhat similar state-law claim was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam) (internal citation omitted). It is also not enough to rely on a “general appeal to a constitutional guarantee as broad as due process to present the ‘substance' of such a claim to a state court.” Netherland, 518 U.S. at 163; see also McFadden, 399 F.3d at 1002-03 (finding habeas petitioner did not give the state appellate court a fair opportunity to rule on a federal due process claim because “[e]xhaustion demands more than drive-by citation, detached from any articulation of an underlying federal legal theory,” and the petitioner's claim in state court was a “conclusory, scattershot citation of federal constitutional provisions, divorced from any articulated federal legal theory”).
Fair presentment is not achieved by raising the claim for “the first and only time in a procedural context in which its merits will not be considered,” unless there are special circumstances. Castille v. Peoples, 489 U.S. 346, 351 (1989). As example, raising a claim for the first time in a discretionary petition for review to the Arizona Supreme Court or in a special action petition is not sufficient to achieve fair presentment. See Casey v. Moore, 386 F.3d 896, 918 (9th Cir. 2004) (“Because we conclude that Casey raised his federal constitutional claims for the first and only time to the state's highest court on discretionary review, he did not fairly present them.”) (footnote omitted).
A corollary to the exhaustion requirement is the “procedural default doctrine.” The procedural default doctrine limits a petitioner from proceeding in federal court where a claim is procedurally barred in state court and “has its roots in the general principle that federal courts will not disturb state court judgments based on adequate and independent state law procedural grounds.” Dretke v. Haley, 541 U.S. 386, 392 (2004). If a petitioner fails to fairly present a claim to the state courts in a procedurally appropriate manner, the claim is procedurally defaulted and generally barred from federal habeas review. Ylst v. Nunnemaker, 501 U.S. 797, 802-05 (1991).
There are two categories of procedural default. First, a claim may be procedurally defaulted in federal court if it was actually raised in state court but found by that court to be defaulted on state procedural grounds. Coleman, 501 U.S. at 729-30. This is called an express procedural bar. An express procedural bar exists if the state court denies or dismisses a claim based on a procedural bar “that is both ‘independent' of the merits of the federal claim and an ‘adequate' basis for the court's decision.” Harris v. Reed, 489 U.S. 255, 260 (1989); Stewart v. Smith, 536 U.S. 856, 860 (2002) (Arizona's “Rule 32.2(a)(3) determinations are independent of federal law because they do not depend upon a federal constitutional ruling on the merits”); Johnson v. Mississippi, 486 U.S. 578, 587 (1988) (“adequate” grounds exist when a state strictly or regularly follows its procedural rule).
Moreover, if a state court applies a procedural bar, but goes on to alternatively address the merits of the federal claim, the claim is still barred from federal review. See Harris, 489 U.S. at 264 n.10 (“[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law.... In this way, a state court may reach a federal question without sacrificing its interests in finality, federalism, and comity.”) (citations omitted); Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003) (“A state court's application of a procedural rule is not undermined where, as here, the state court simultaneously rejects the merits of the claim.”) (citing Harris, 489 U.S. at 264 n.10).
Second, the claim may be procedurally defaulted if the petitioner failed to present the claim in a necessary state court and “the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.” Coleman, 501 U.S. at 735 n.1; Boerckel, 526 U.S. at 848 (when time for filing state court petition has expired, petitioner's failure to timely present claims to state court results in a procedural default of those claims); Smith v. Baldwin, 510 F.3d 1127, 1138 (9th Cir. 2007) (failure to exhaust claims in state court resulted in procedural default of claims for federal habeas purposes when state's rules for filing petition for postconviction relief barred petitioner from returning to state court to exhaust his claims). This is called an implied procedural bar. Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). This type of procedural default is often referred to as “technical” exhaustion because although the claim was not actually exhausted in state court, Petitioner no longer has an available state remedy. Coleman, 501 U.S. at 732 (“A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no remedies any longer ‘available' to him.”).
Arizona courts have consistently applied Arizona's procedural rules to bar further review of claims that were not properly raised on direct appeal or in prior post-conviction proceedings. See, e.g., Stewart, 536 U.S. at 860 (determinations made under Arizona's procedural default rule are “independent” of federal law); Smith v. Stewart, 241 F.3d 1191, 1195 n.2 (9th Cir. 2000) (“We have held that Arizona's procedural default rule is regularly followed [or “adequate”] in several cases.”) (citations omitted), rev'd on other grounds, Stewart, 536 U.S. 856; State v. Mata, 185 Ariz. 319, 334-36, 916 P.2d 1035, 1050-52 (Ariz. 1996) (waiver and preclusion rules strictly applied in post-conviction proceedings). A petitioner who fails to follow a state's procedural requirements for presenting a valid claim deprives the state court of an opportunity to address the claim in much the same manner as a petitioner who completely fails to attempt to exhaust state remedies.
Effective January 1, 2020, former Arizona Rules of Criminal Procedure (“Rules”) 32 and 33 were abrogated, and new Rules 32 and 33 were adopted. See Arizona Supreme Court Order No. R-19-0012. As a general matter, the substance of former Rule 32 was divided among the two new rules based on whether a defendant was convicted at trial (new Rule 32) or had pled guilty or no contest (new Rule 33). See id.; Pet. to Amend (Jan. 10, 2019), at 4-5. New Rule 32 thus encompasses the rules applicable to a defendant's right to seek post-conviction relief when the defendant is convicted by trial. New Rule 32 and new Rule 33 apply to “all actions filed on or after January 1, 2020, and to “all other actions pending on January 1, 2020, except to the extent that the court in an affected action determines that applying the rule or amendment would be infeasible or work an injustice, in which event the former rule or procedure applies.” Arizona Supreme Court Order No. R-19-0012.
2. Excuse for Procedural Default
The Court may review a procedurally defaulted claim if the petitioner can demonstrate either: (1) cause for the default and actual prejudice to excuse the default, or (2) a miscarriage of justice/actual innocence. 28 U.S.C. § 2254(c)(2)(B); Schlup v. Delo, 513 U.S. 298, 321 (1995); Coleman, 501 U.S. at 750; Murray v. Carrier, 477 U.S. 478, 495-96 (1986). “Cause” is something that “cannot be fairly attributable” to a petitioner, and a petitioner must show that this “objective factor external to the defense impeded [his] efforts to comply with the State's procedural rule.” Coleman, 501 U.S. at 753 (citation and internal quotation marks omitted). To establish prejudice a “habeas petitioner must show ‘not merely that the errors at ... trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'” Murray, 477 U.S. at 494 (quoting United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original)). “Such a showing of pervasive actual prejudice can hardly be thought to constitute anything other than a showing that the prisoner was denied ‘fundamental fairness' at trial.” Id.
The miscarriage of justice exception to procedural default “is limited to those extraordinary cases where the petitioner asserts his [actual] innocence and establishes that the court cannot have confidence in the contrary finding of guilt.” Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir. 2008) (emphasis in original). To pass through the actual innocence/Schlup gateway, a petitioner must establish his or her factual innocence of the crime and not mere legal insufficiency. See Bousley, 523 U.S. at 623; Jaramillo, 340 F.3d at 882-83. Significantly, “[t]o be credible, [a claim of actual innocence] requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence.” Schlup, 513 U.S. at 324. See also Lee, 653 F.3d at 945; McQuiggin, 569 U.S. at 399 (explaining the significance of an “[u]nexplained delay in presenting new evidence”). A petitioner “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” McQuiggin, 569 U.S. at 399 (quoting Schlup, 513 U.S. at 327)). Because of “the rarity of such evidence, in virtually every case, the allegation of actual innocence has been summarily rejected.” Shumway, 223 F.3d at 990 (citing Calderon, 523 U.S. at 559).
B. The Amended Petition Grounds Are Procedurally Defaulted
Following Petitioner's October 1, 2021, sentencing, Petitioner filed an untimely notice of appeal of Petitioner's conviction and sentence. (Doc. 55-1 at 45-54) In Petitioner's notice of appeal, Petitioner stated that Petitioner was appealing “violations of speedy trial, misrepresentation of counsel, misdiagnosis of mental illness, [and] violations of filing appeal.” (Id. at 45) The Arizona Court of Appeals dismissed Petitioner's notice of appeal for lack of jurisdiction due to the untimeliness of the notice of appeal. (Id. at 56-57) Thus, an express procedural bar was applied by the state court to Petitioner's untimely notice of appeal. It was and is too late for Petitioner to raise his pending habeas claims in the Arizona Court of Appeals through the direct appeal process. The Arizona Court of Appeals' enforcement of the time limit and procedural requirements for a direct appeal is an “independent and adequate” ground to bar review of Petitioner's claims. See Coleman, 501 U.S. at 729-30; Stewart, 536 U.S. at 860; Salazar v. Ryan, 2018 WL 3062017, at *14 (D. Ariz. Feb. 22, 2018) (finding nothing to suggest the Arizona time limit for direct appeal and petition for review are not independent and adequate state grounds).
Further, Petitioner did not initiate state court PCR proceedings following Petitioner's October 1, 2021, sentencing. It is too late or otherwise procedurally inappropriate for Petitioner to return to state court to assert his habeas claims through the state court PCR process. See Ariz. R. Crim. P. 32.2(a)(3) ; Ariz. R. Crim. P. 32.4(b)(3)(A) (claims filed pursuant to Rule 32.1(a) must be filed within 90 days of sentencing or 30 days after the mandate is issued in a direct appeal); Ariz. R. Crim. P. 32.1(b)-(h), 32.2(b)(1), 32.4(b)(3)(B) (allowing a defendant to assert claims identified in Rule 32.1(b) through (h) “within a reasonable time after discovering the basis for the claim.”). Arizona Rule of Criminal Procedure 32.1(b) through (h) identifies grounds for PCR relief where: (b) the court lacked “subject matter jurisdiction to render a judgment or to impose a sentence on the defendant”; (c) the sentence was not “authorized by law”; (d) the defendant is or will be in custody after his sentence has expired; (e) “newly-discovered material facts probably exist” and such facts “probably would have changed the judgment or sentence”; (f) the failure to file a timely notice of PCR was not the defendant's fault; (g) “there has been a significant change in the law that, if applicable to the defendant's case, would probably overturn the defendant's judgment or sentence”; and (h) “the defendant demonstrates by clear and convincing evidence that the facts underlying the claim would be sufficient to establish that no reasonable fact-finder would find the defendant guilty of the offense beyond a reasonable doubt[.]” Ariz. R. Crim. P. 32.1(b)-(h).
Arizona Rule of Criminal Procedure 32.2(a)(3) provides that PCR relief is precluded on any claim “waived at trial or on appeal, or in any previous post-conviction proceeding, except when the claim raises a violation of a constitutional right that can only be waived knowingly, voluntarily, and personally by the defendant.” (emphasis supplied). The italicized language was added to the rule in January 2020, but even under the prior rule, Arizona courts limited an exception to preclusion only in circumstances where “an asserted claim is of sufficient constitutional magnitude.” Stewart v. Smith, 202 Ariz. 446, 449, 46 P.3d 1067, 1070 (2002). The Arizona Supreme Court has instructed that examples encompassed by this phrase include the right to counsel, the right to a jury trial, and the right to a twelve-person jury. See id.
Petitioner asserts in the reply in support of the Amended Petition that an appeal or PCR proceeding in state court “would be unconstitutionally heard” until these habeas proceedings have concluded, but Petitioner does not present any viable legal avenue for Petitioner's return to state court to assert Petitioner's claims now or after these habeas proceedings. (Doc. 67 at 6)
Further, Petitioner's assertions that the Arizona state courts lack jurisdiction to hear Petitioner's claims are contrary to applicable law. (See Doc. 36 at 9-12, 14-23, 45) Petitioner asserts that the Arizona state courts lacked jurisdiction to hear Petitioner's appeal because Petitioner filed proceedings in the United States Supreme Court, including United States Supreme Court case number 20-8007. (Doc. 36 at 9-12, 14-23, 45) In support of this assertion, Petitioner cites United States Supreme Court Rule 20.4(b). (Id. at 10, 14, 16-17, 19, 23) In Petitioner's reply in support of the Amended Petition, Petitioner reiterates that Petitioner did not initiate PCR proceedings because “[a]ny appeal or post-conviction relief would be unconstitutionally heard by the state courts of Arizona until the habeas corpus case is heard on its merits.” (Doc. 67 at 6)
United States Supreme Court Rule 20.4(b), titled “Procedure on a Petition for an Extraordinary Writ,” provides:
Habeas corpus proceedings, except in capital cases, are ex parte, unless the Court requires the respondent to show cause why the petition for a writ of habeas corpus should not be granted. A response, if ordered, or in a capital case, shall comply fully with Rule 15. Neither the denial of the petition, without more, nor an order of transfer to a district court under the authority of 28 U.S.C. § 2241(b), is an adjudication on the merits, and therefore does not preclude further application to another court for the relief sought.
United States Supreme Court Rule 20.4(b) does not remove jurisdiction from the state courts. Petitioner cannot rely on this rule as support for Petitioner's failure to raise the Amended Petition grounds in the state courts as required. Further, as Respondents correctly point out, United States Supreme Court Rule 20.4(a) provides that where “relief sought is from the judgment of a state court, the petition shall set out specifically how and where the petitioner has exhausted available remedies in the state courts or otherwise comes within the provision of 28 U.S.C. § 2254(b).”
In reply in support of the Amended Petition, Petitioner asserts that Ariz. R. Crim. P. 31.2(a)(2) violates the First Amendment insofar as it sets a time limit on the filing of a notice of appeal. (Doc. 67 at 2-3) Petitioner also argues that the Arizona Court of Appeals unconstitutionally dismissed Petitioner's notice of appeal because the court of appeals' order has no “legal signature.” (Id. at 3) Petitioner presents no case law invalidating the requirements of Ariz. R. Crim. P. 31.2(a)(2) as violative of the First Amendment or as otherwise unconstitutional. A rule providing a time frame for an appeal does not abridge Petitioner's First Amendment right to “petition the Government for a redress of grievances.” U.S. Const. amend I. Further, the typed signature of the court of appeals judge on the order dismissing Petitioner's untimely appeal is valid, as Arizona courts have found that typed signatures on a court order are sufficient in lieu of a handwritten signature. See, e.g., In re MH 2008-002493, 2010 WL 624053, at *3 (Ariz. App. Feb. 23, 2010) (handwritten signature not required for detention order); Haywood Securities, Inc. v. Ehrlich, 214 Ariz. 114, 118 (2007) (in civil context, electronic judicial signature suffices). Also, the Arizona Court of Appeals uses an electronic filing and recordkeeping system, and the dismissal order here is compliant with the applicable rules for the electronic filing and recordkeeping system. See Arizona Supreme Court Admin. Order 2012-2 Section 5(f).
See https://perma.cc/XT9Y-24MK (last accessed on July 31, 2023).
For the reasons above, Petitioner's habeas grounds are procedurally defaulted.
C. Petitioner Fails to Establish Cause and Prejudice or Miscarriage of Justice/Actual Innocence to Excuse the Procedural Default
To excuse the procedural default, Petitioner bears the burden of establishing either: (1) both cause and actual prejudice; or (2) a miscarriage of justice/actual innocence. Coleman, 501 U.S. at 750.
1. Cause and Prejudice Not Established
Although Petitioner does not expressly argue cause and prejudice to excuse Petitioner's procedural default of the grounds in the Amended Petition, Petitioner asserts that under United States Supreme Court Rule 20.4(b), the state courts lacked jurisdiction over Petitioner's appeals and that a state court PCR proceeding would be unconstitutional until the conclusion of these habeas proceedings. (Doc. 36 at 9-12, 14-23, 45; Doc. 67 at 6) Petitioner's “misunderstanding of the law or lack of legal knowledge does not constitute cause for” Petitioner's “failure to properly present his claims to the Arizona courts.” McCracken v. Ryan, 2010 WL 86395, at *8 (D. Ariz. Jan. 8, 2010); see also Kibler v. Walters, 220 F.3d 1151, 1154 (9th Cir. 2000) (ignorance of law and procedural requirements not sufficient for cause and prejudice).
Petitioner further asserts that after the dismissal of Petitioner's prior habeas proceedings in case 2:20-CV-00598-PHX-MTL--ESW, Petitioner sought state avenues of relief “and got NO constitutional remedy or verdict on the merits.” (Doc. 67 at 8) In case 2:20-CV-00598-PHX-MTL--ESW, this Court properly dismissed Petitioner's prior habeas proceeding without prejudice on March 30, 2020, due to Petitioner's pending and ongoing state court criminal proceedings. (2:20-CV-00598-PHX-MTL--ESW, Doc. 5) Following the Court's dismissal of Petitioner's prior habeas proceedings, Petitioner filed an untimely direct appeal of Petitioner's conviction and sentence in Maricopa County Superior Court case number CR2019-155732 on December 28, 2021. (Doc. 55-1 at 45-54) Although Petitioner filed a procedurally inappropriate state habeas corpus motion on February 16, 2021 (see id. at 72, 76), Petitioner did not initiate PCR proceedings following Petitioner's October 21, 2021, sentencing in the superior court. No information in this record supports the conclusion that an external factor prevented Petitioner from properly exhausting his claims per the applicable state procedural rules. Petitioner has not established cause to excuse the procedural default.
In addition to failing to establish cause, Petitioner has not demonstrated prejudice to excuse Petitioner's procedural default of the pending habeas claims. Thus, the procedural default of Petitioner's pending habeas claims cannot be excused through the legal avenue of cause and prejudice.
2. Miscarriage of Justice/Actual Innocence Standard Not Met
As set forth above, to meet the miscarriage of justice/actual innocence exception to procedural default, Petitioner must “support his allegations of constitutional error with new reliable evidence[,]” Schlup, 513 U.S. at 324, and “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” McQuiggin, 569 U.S. at 399 (quoting Schlup, 513 U.S. at 327). Petitioner fails to meet this burden. Indeed, Petitioner does not argue actual innocence of Petitioner's underlying conviction. Petitioner does not present “new reliable evidence[,]” Schlup, 513 U.S. at 324, that would likely prevent a jury from convicting Petitioner. See McQuiggin, 569 U.S. at 399.
Petitioner does not attach any new evidence pertinent to the actual innocence exception to the Amended Petition, statements of facts, or reply documents in support of the Amended Petition. Petitioner has not met the burden to establish miscarriage of justice by actual innocence that would excuse Petitioner's procedural default of the pending grounds of the Amended Petition.
3. The Pending Habeas Claims Are Procedural Defaulted Without Excuse
For the reasons discussed above, all of the claims in the pending grounds of the Amended Petition (Grounds 1, 2, 4, 5, 6, 7, 10, 11, 12, and 32) are procedurally defaulted without excuse.
V. MOTIONS AND NOTICES
Petitioner has multiple pending motions before the Court: “Violation of Constitutional Statute by the Court” (Doc. 58), “Motion of Default Federal Rule of Civil Procedure Rule 55(a)” (Doc. 66), two motions for recusal (Docs. 68, 82), and a “Notice of Revoked Motion of Default under Federal Rule of Civil Procedures Rule 55(a) Default” (Doc. 73). Also, Petitioner has filed several notices relating to other proceedings filed in this Court or that Petitioner represents he has attempted to file in this Court. (Docs. 79, 80) Petitioner has also filed an additional Application to Proceed In Forma Pauperis. (Doc. 81)
Respondents have not filed any response to Petitioner's pending motions or notices.
Given the meritorious affirmative defense of procedural default that Respondents raise in their Limited Answer, because Petitioner's pending motions lack merit, and because previous orders already put Petitioner on notice that incarceration condition and civil rights claims cannot be brought in habeas proceedings, it is recommended that Petitioner's pending motions be denied and that the Court take no action on Petitioner's notices or, alternatively, that the Court strike the notices.
Judge Willett recused (Doc. 70) after Petitioner filed his “Motion to recuse Judge For Constitutional violations and conflict of Interest” (Doc. 68), and the portion remaining from such motion and Petitioner's almost identical recently filed recusal motion (Doc. 82) pertains to District Judge Liburdi. Motions to disqualify or recuse a federal judge fall under two statutory provisions, 28 U.S.C. §§ 144 and 455. Petitioner fails to cite either statute in his motions for recusal. (Docs. 68, 82) Nor do Petitioner's motions meet the requirements for recusal under either statute.
The motions for recusal also reference District Judge Jennifer G. Zipps, who is not assigned to this matter.
Under 28 U.S.C. §455, recusal is appropriate where “a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned.” Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir. 2008) (quoting United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997)), abrogated on other grounds in Simmons v. Himmelreich, 578 U.S. 621 (2016). A reasonable person “in this context means a well-informed, thoughtful observer, as opposed to a hypersensitive or unduly suspicious person.” United States v. Holland, 519 F.3d 909, 914 (9th Cir. 2008) (quoting Clemens v. U.S. Dist. Court for Cent. Dist. of California, 428 F.3d 1175, 1178 (9th Cir. 2005)). “Disqualification under § 455(a) is necessarily fact-driven and may turn on subtleties in the particular case.” Carey, 929 F.3d at 1104 (quoting Holland, 519 F.3d at 913). A recusal motion under 28 U.S.C. §455 is directed to the judge about whom the motion pertains. See 28 U.S.C. §455(a) & (b) (“[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself . . . . ” and “[h]e shall also disqualify himself . . . .”).
“‘[J]udicial rulings almost never constitute valid basis for a bias or partiality motion[.]'” United States v. Chisilly, 30 F.3d 1144, 1149 (9th Cir.), cert. denied, 513 U.S. 1132 (1994) (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). Thus, adverse rulings against a party are generally “not sufficient to require recusal, even if the number of such rulings is extraordinarily high.” McCalden v. Cal. Library Ass'n, 955 F.2d 1214, 1224 (9th Cir. 1990), cert. denied, 504 U.S. 957 (1992) (citing Matter of Beverly Hills Bancorp, 752 F.2d 1334, 1341 (9th Cir. 1984)); see Stivers v. Pierce, 71 F.3d 732, 741-42 (9th Cir. 1995) (“Nor would the Board's repeated unfavorable rulings, standing alone, be sufficient to support a claim that [defendant] or any other member of the Board was actually biased against [plaintiff].”) (citing McCalden, 955 F.2d at 1224). Moreover, “‘a judge is not disqualified by a litigant's suit or threatened suit against him, or by a litigant's intemperate and scurrilous attacks.'” United States v. Sutcliffe, 505 F.3d 944, 958 (9th Cir. 2007) (quoting United States v. Studley, 783 F.2d 934, 940 (9th Cir. 1986)). Under the grounds advanced by Plaintiff, one cannot conclude that a reasonable person with knowledge of all the relevant facts would question the impartiality of the presiding district judge in this matter. Given the contents of the motion and the record of the habeas proceedings in this Court, the basis of Petitioner's recusal motions is Petitioner's dissatisfaction with the Court's legal rulings. Thus, under § 455 Petitioner's motion for recusal of District Judge Liburdi fails.
Recusal statute 28 U.S.C. § 144 applies when a party to a proceeding believes that the district judge “has a personal bias or prejudice either against him or in favor of any adverse party[.]” 28 U.S.C. § 144. “Section 144 expressly conditions relief upon the filing of a timely and legally sufficient affidavit.” Sibla, 624 F.2d at 867 (citations omitted). Specifically, the statute provides:
The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.28 U.S.C. § 144 When a party files a timely and legally sufficient affidavit pursuant to Section 144, the district judge “shall proceed no further therein, but another judge shall be assigned to hear such proceeding.” Id.; Sibla, 624 F.2d at 867. However, “if the motion and affidavit required by section 144 [are] not presented to the judge, no relief under section 144 is available.” Sibla, 624 F.2d at 868. “Section 144 expressly conditions relief upon the filing of a timely and legally sufficient affidavit.” United States v. Sibla, 624 F.2d 864, 867 (9th Cir. 1980) (citations omitted). Here, the procedural and timeliness requirements of 28 U.S.C. § 144 have not been met. Petitioner has not submitted an affidavit in support of his motion. Further, Petitioner's motion is untimely. Petitioner waited almost a year to file the motion; notably, Petitioner waited to file the motion until after Petitioner received legal rulings with which Petitioner disagreed. Thus, Petitioner's motion for recusal of District Judge Liburdi fails under Section 144 as well.
Courts have held that because the federal courts no longer sit in terms, but instead are in continuous session, the 10-day requirement is not literal. See Pomeroy v. Merritt Plaza Nursing Home, Inc., 760 F.2d 654, 658 (5th Cir. 1985) (“courts have [] required a party to exercise reasonable diligence in filing an affidavit after discovering facts that show bias. See, e.g., Smith v. Danyo, 585 F.2d 83 (3d Cir.1978).”).
Further, Petitioner's Amended Petition named District Judge Liburdi as a respondent, and District Judge Liburdi previously declined to recuse, stating:
Petitioner does not allege the undersigned has an extrajudicial bias against her; all of the issues raised in the Amended Petition related to the undersigned stem from the undersigned's rulings in this action or in other actions Petitioner has filed. Moreover, “‘a judge is not disqualified by a litigant's suit or threatened suit against him, or by a litigant's intemperate and scurrilous attacks.'” United States v. Sutcliffe, 505 F.3d 944, 958 (9th Cir. 2007) (quoting United States v. Studley, 783 F.2d 934, 940 (9th Cir. 1986)). The undersigned cannot conclude that a reasonable person with knowledge of all the relevant facts would question the undersigned's impartiality. Thus, the Court declines to recuse.(Doc. 40 at 5, footnote 5) This reasoning applies equally to Petitioner's pending motions for recusal.
Insofar as the other filings by Petitioner, the Court explained in a previous order that any claims relating to conditions of confinement must be raised in a Section 1983 action, not a Section 2254 action. (Doc. 29 at 5; Doc. 49 at 1) Other than perhaps striking Petitioner's notices (Docs. 79, 80, 84), there is no further action for that needs be taken by the Court in these proceedings regarding Petitioner's notices, which were not appropriately filed in this matter. For the same reasons, Petitioner's “Notice of Revoked Motion of Default under Federal Rule of Civil Procedures Rule 55(a) Default” (Doc. 73), which the Clerk of Court filed as a motion, should be denied. Likewise, Petitioner's motion entitled “Violation of Constitutional Statute by the Court” (Doc. 58) is without legal basis.
Respondents timely filed a Limited Answer (Doc. 55) in compliance with the Court's Orders to do so (Docs. 40, 50). This alone renders Petitioner's “Motion of Default Federal Rule of Civil Procedure Rule 55(a)” (Doc. 66) without merit.
In addition, Petitioner's motion recent Application to Proceed In Forma Pauperis (Doc. 81) should be denied as moot given the Court's previous granting of Petitioner's third Application to Proceed In Forma Pauperis. (Docs. 19, 29)
VI. CONCLUSION
All of the claims in the pending grounds of the Amended Petition (Grounds 1, 2, 4, 5, 6, 7, 10, 11, 12, and 32) are procedurally defaulted without excuse. It is therefore recommended that the Amended Petition (Doc. 36) be dismissed with prejudice and that the Clerk of Court be directed to terminate this matter. Because Petitioner's unexcused procedural default of all the pending claims resolves this matter, Respondents' untimeliness argument is not addressed herein.
It is further recommended that Petitioner's pending motions, including “Violation of Constitutional Statute by the Court” (Doc. 58), “Motion of Default Federal Rule of Civil Procedure Rule 55(a)” (Doc. 66), “Motion to recuse Judge For Constitutional violations and conflict of Interest” (Doc. 68), “Notice of Revoked Motion of Default under Federal Rule of Civil Procedures Rule 55(a) Default” (Doc. 73), Application to Proceed In Forma Pauperis (Doc. 81) and motion for recusal (Doc. 82), be denied and that the Court either strike or take no action in this matter regarding Petitioner's notices (Docs. 78, 79, 84).
Assuming the recommendations herein are followed in the District Judge's judgment, the undersigned recommends that a certificate of appealability be denied because dismissal is justified by a plain procedural bar and reasonable jurists would not find the procedural ruling debatable. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Accordingly, IT IS THEREFORE RECOMMENDED that Alfred Erik Caraffa's Amended Petition Under 28 U.S.C. § 2254 by a Person in State Custody (Doc. 36) be dismissed with prejudice and that the Clerk of Court be directed to terminate this matter.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability be denied.
IT IS FURTHER RECOMMENDED that Petitioner's pending motions, including “Violation of Constitutional Statute by the Court” (Doc. 58), “Motion of Default Federal Rule of Civil Procedure Rule 55(a)” (Doc. 66), motions for recusal (Docs. 68, 82), and “Notice of Revoked Motion of Default under Federal Rule of Civil Procedures Rule 55(a) Default” (Doc. 73), be denied, that the Court either strike or take no action in this matter regarding Petitioner's notices (Docs. 78, 79, 84), and that Petitioner's Application to Proceed In Forma Pauperis (Doc. 81) be denied as moot.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. The parties shall have fourteen days within which to file responses to any objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determination of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.