Opinion
CV-22-1206-PHX-JAT (JFM)
10-23-2023
Eulandas J. Flowers, Petitioner v. David Shinn, et al., Respondents.
REPORT & RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS
JAMES F. METCALF UNITED STATES MAGISTRATE JUDGE
I. MATTER UNDER CONSIDERATION
Petitioner has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). The Petitioner's Petition is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND
A. FACTUAL BACKGROUND
“The evidence presented at trial showed Flowers, who had a historical prior felony conviction and was confined in a correctional facility, was found with various items including two cell phones, marijuana, and a knife in his rectum.” (Exh. P-1, Mem. Dec. 8/13/19 at ¶ 3.) (See also, Exh. C, Presentence Report at 1.) (Exhibits herein are referenced as follows: to the Petition (Doc. 1) as “Exh. P-__”; and to the Answer (Doc. 12), as “Exh. __.”)
Exhibits to the Petition (Doc. 1) are unlabeled. They can be located at: P-1, Doc. 1 at 13, et seq.; P-2, id. at 15; P-3, id. at 16; P-4, id. at 17, et seq.; P-5, id. at 22; P-6, id. at 23, et seq.
B. PROCEEDINGS AT TRIAL
Petitioner proceeded pro se, but with advisory counsel, to a jury trial in Pinal County Superior Court and was found guilty of three counts of promoting prison contraband. (Exh. A, Verdicts; Exh. B, M.E. 12/12/17.) Petitioner requested counsel for sentencing, and advisory counsel was appointed. (Exh. B, M.E. 12/12/17.) On April 10, 2018 Petitioner was sentenced “to presumptive, concurrent and consecutive prison terms totaling 11.5 years.” (Exh. P-1, Mem. Dec. 8/13/19 at ¶ 1.) (See also Exh. E, RT 4/10/18; and Exh. F, Sentence.)
C. PROCEEDINGS ON DIRECT APPEAL
Petitioner filed a direct appeal. Appointed counsel was unable to find a non-frivolous issue for review and filed an Opening Brief (Exh. G) pursuant to Anders v. California, 386, U.S. 738 (1967) and related state authorities. Petitioner then filed a “Supplemental Brief,” arguing: (1) error in denial of a motion to suppress; and (2) denial of a fair trial by preventing Petitioner from presenting a defense based on an invalid search warrant and search.
In a Memorandum Decision issued August 13, 2019 (Exh. P-1) the Arizona Court of Appeals found no merit to the asserted claims, reviewed the record for “fundamental reversible error” and found none, and affirmed Petitioner's convictions and sentences.
Petitioner filed a motion for reconsideration (Exh. I), which was denied. (Exh. J, Ord 9/23/19.) Petitioner filed a petition for review by the Arizona Supreme Court, which was summarily denied. (Exh. R 2/24/20.)
The parties have not provided a copy of Petitioner's Petition for Review to the Arizona Supreme Court on direct review. The undersigned finds review of that petition is not necessary to a fair resolution of the Petition, given the summary ruling by the Arizona Supreme Court, and the absence of a procedural bar or default defense to the claims raised on direct appeal, i.e. Grounds 1 and 2.
D. PROCEEDINGS ON POST-CONVICTION RELIEF
“Flowers sought post-conviction relief, and appointed counsel filed a notice stating he had found no colorable claims to raise under Rule 32.” (Exh. P-4, Mem. Dec. 10/5/21, at ¶ 3.) On December 8, 2020, Petitioner filed pro se a post-conviction relief (PCR) Petition (Exh. K) and Request for Findings of Fact (Exh. L). Petitioner argued: (a) ineffective assistance of counsel at sentencing by failure to present mitigation evidence regarding his background and character; (b) ineffective assistance of counsel for failing to counter false information in the presentence report; (c) denial of counsel at sentencing; (d) denial of a competency (“Rule 11”) evaluation; (e) COVID-19 related Eighth Amendment claims; (f) suppression of exculpatory evidence; (g) newly discovered evidence (“SSU Memo”). (Exh. K at 14-38.) Both the Petition and Motion were summarily denied by the PCR Court. (Exh. M, Order 12/15/20.)
The parties have not provided copies of counsel's brief.
Petitioner filed a pro per Motion for Rehearing (Exh. N), which was construed as a motion for reconsideration and denied with some explanation for the prior ruling. (Exh. O, Order 3/2/21.)
Petitioner sought review by the Arizona Court of Appeals (Exh. P, PFR.) The Arizona Court of Appeals granted review, but denied relief. (Exh. P-4, Mem. Dec. 10/5/21.) No motion for reconsideration or petition for furth review was filed, and the appellate court issued its Mandate (Exh. P-5) on December 2, 2021. On May 9, 2022 Petitioner filed a motion to stay the mandate, which was denied as untimely. (Exh. P-6, Order 5/18/22.)
E. PRESENT FEDERAL HABEAS PROCEEDINGS
Petition - Petitioner, presently incarcerated in the Arizona State Prison Complex at Florence, Arizona, commenced the current case by filing his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on July 18, 2022 (Doc. 1). Petitioner's Petition asserts the following five grounds for relief:
Ground 1:
Petitioner's Fourth Amendment rights were violated when the trial court stated that State v. Palmer,
(Order 7/29/22, Doc. 5 at 2.)
751 P.2d 975 (Ariz.Ct.App. 1987), “was the prevailing authority on whether or not a search warrant is needed to intrude the bod[y']s surface in a physically invasive search.”
Ground 2:
The trial court abused its discretion when it denied Petitioner's motion to suppress, which “challeng[ed] illegally seized evidence under the Fourth Amendment” and “the veracity of the affidavit of the search warrant,” and concluded Petitioner was not entitled to an evidentiary hearing.
Ground 3:
Petitioner received ineffective assistance of counsel when his attorney failed “to provide investigative factual evidence into [Petitioner's] background and character for mitigation.”
Ground 4:
The trial court violated Petitioner's Sixth Amendment right to counsel at sentencing.
Ground 5:
The State failed to disclose material evidence favorable to Petitioner.
Response - On November 7, 2022, Respondents filed their Limited Answer (Doc. 12). Respondents argue:
• Under Stone v. Powell, 428 U.S. 465 (1976), the exclusionary rule claims in Grounds 1 and 2 are not cognizable on habeas review.
• Under the deferential review required by 28 U.S.C. § 2254(d) and (e), Grounds 3 and 4 are without merit.
• Petitioner's claim in Ground 5 was procedurally barred in the state courts on an independent and adequate state ground, and thus habeas relief is precluded.
Reply - Petitioner was granted a series of extensions of time to reply, the latest of which expired on June 13, 2023. (See Order 3/24/23, Doc. 18.) Petitioner has not filed a reply.
Supplement to Record - On September 1, 2023, the Court observed that Respondents had failed to fully comply with the requirements of Rule Governing § 2254 Cases 5(c) by identifying all available transcripts and all untranscribed recordings of the state proceedings. Respondents were ordered to supplement, and Petitioner was given 14 days after the supplement “to file any motion (based on the failure to comply with Rule 5(c)) to amend his reply or supplement the record.” (Order 9/1/23, Doc. 19.) Respondents filed their Notice (Doc. 20) supplementing on September 6, 2023, giving Petitioner through Monday, September 25, 2023 to move to amend or supplement. Petitioner has not timely done so.
III. APPLICATION OF LAW TO FACTS
A. GROUNDS 1 & 2 - EXCLUSIONARY RULE CLAIMS
In Ground 1, Petitioner alleges that he was served a search warrant authorizing an x-ray and, if contraband was shown, for it to be medically removed. As a result, he was subjected to an “invasive body cavity removal procedure without the consent of Flowers.” (Petition, Doc. 1 at 6; Memo. Doc. 1-1 at 2-6.) He filed a motion to suppress which was denied by the trial court without a hearing based upon the trial court's conclusion that a search warrant was not required pursuant to State v. Palmer, 156 Ariz. 315, 751 P.2d 975 (App. 1987). (Id.) (See Exh. H, Supp. Open. Brief at Exhibit 1, Search Warrant (Doc. 12-2 at 24-26); id. at Exhibit 3, Order 9/29/17.)
In Ground 2, Petitioner alleges that the trial court violated his Fourth Amendment Rights by erroneously denying his motion to suppress, and by doing so without an evidentiary hearing. (Petition, Doc. 1 at 7; Memo., Doc. 1-1 at 6-9.) Petitioner argues: (1) the supporting affidavit referenced information (a metal detector scan) from before the date of the warrant; (2) the affidavit of probable cause for the warrant was not signed by the affiant nor attested to by the magistrate; and (3) there is a discrepancy between the officer purportedly executing the warrant and the officer signing the return.
In his Supplemental Opening Brief on direct appeal, Petitioner raised related claims to the Arizona Court of Appeals, arguing that his motion to suppress “challenge[d the] veracity of search warrant,” and the trial court denied him due process by precluding him from raising the search issues as a defense at trial. (Exh. H, Supp. Open. Brf. at 3-14.) The appellate court acknowledged the claims, but summarily found no error. (Exh. P-1, Mem. Dec. 8/13/19 at ¶¶ 2, 4.) Thus, the decision of the trial court is the last reasoned decision on Petitioner's claims, and thus the decision subject to review in this habeas proceeding. Curiel v. Miller, 830 F.3d 864, 870 (9th Cir. 2016) (en banc) (quoting Ylst v. Nunnemaker, 501 U.S. 797, 802-06 (1991)).
Arguably, Petitioner's second claim to the Arizona Court of Appeals related to evidence to be presented at trial, not the rejection of his motion to suppress. If so, it appears the claim in Ground 2 would be procedurally defaulted. Defendants have not asserted procedural default. Because the claim raised in the Petition is plainly barred by Stone, the undersigned declines to raise the procedural default sua sponte.
Absent the “exclusionary rule,” evidence obtained in violation of the Fourth Amendment (i.e. because there was not probable cause to conduct a search) would be admissible at trial.
The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Amendment says nothing about suppressing evidence obtained in violation of this command. That rule-the exclusionary rule-is a “prudential” doctrine, created by this Court to “compel respect for the constitutional guaranty.” Exclusion is “not a personal constitutional right,” nor is it designed to “redress the injury” occasioned by an unconstitutional search. The rule's sole purpose, we have repeatedly held, is to deter future Fourth Amendment violations.Davis v. United States, 564 U.S. 229, 236-37 (2011).
However, in Stone v. Powell, 428 U.S. 465 (1976), the Supreme Court recognized that habeas proceedings are so far removed from the offending conduct that any deterrent effect is outweighed by the societal cost of ignoring reliable, trustworthy evidence and the judicial burden of litigating collateral issues. Thus, the Court held that “where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted habeas corpus relief on the ground that the evidence obtained in an unconstitutional search or seizure was introduced at his trial.” Id. at 494.
The key to the limitation on the exclusionary rule in Stone is the provision of an opportunity for full and fair consideration of the exclusionary rule claim. "The relevant inquiry is whether petitioner had the opportunity to litigate his claim, not whether he did in fact do so or even whether the claim was correctly decided." Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996).
Here, the only deficiency asserted by Petitioner in the state's consideration of his claims (apart from challenging its correctness) is that he was not afforded an evidentiary hearing by the trial court. But Petitioner fails to identify any evidence to be presented in such hearing that would have altered the outcome, given the conclusion by the trial court that no search warrant was required.
Petitioner contends that, under state law (i.e. State v. Palmer) the trial court's conclusion was erroneous. Even if that were the case, however, under federal law a search warrant is not invariably required to conduct an invasive body cavity search of a prisoner (as opposed to an ordinary citizen, suspect, or pretrial detainee), only reasonable suspicion and a legitimate penological purpose, e.g. exclusion of drugs, weapons, etc. Tribble v. Gardner, 860 F.2d 321, 324-325 (9th Cir. 1988). Petitioner relies on Schmerber v. California, 384 U.S. 757 (1966) for the proposition that a warrant is required for an invasive search. But Schmerber involved an involuntary blood sample obtained by police from an arrested DUI suspect, not an invasive search by prison officials of a convicted prisoner. Petitioner also relies on Fuller v. M.G. Jewelry, 950 F.2d 1437 (9th Cir. 1991), but that case also involved an invasive search of an arrested suspect, not a convict. As noted in Tribble, a prison inmate loses those constitutional rights that are inconsistent with his status as a prisoner. 860 F.2d at 324. Among those is the right to a search warrant for a search, invasive or otherwise, which serves a legitimate penological need, such as prison security. Id. at 325.
Petitioner has never proffered evidence he would have presented in a suppression hearing to show a lack of reasonable suspicion or the absence of a legitimate penological purpose. At best, he has raised purported technical deficiencies in the issuance of the warrant and the making of the return. (Petition, Memo, Doc. 1-1 at 7-9.) Because no warrant was constitutionally required, such deficiencies are irrelevant to Petitioner's federal habeas claim. See Mack v. Cupp, 564 F.2d 898, 901 (9th Cir. 1977) (Stone satisfied despite lack of evidentiary hearing when no offer of relevant proof was made).
Petitioner also offers nothing to show that the appellate court's review of his claim was not sufficient to afford a full and fair opportunity to litigate his claim. See Mack, 564 F.2d at 901-902; Stone, 428 U.S. at 495, n. 37 (requiring “full and fair litigation of that claim at trial and on direct review”).
Consequently, Petitioner is not entitled to habeas relief based upon his claims in Grounds 1 and 2 that his Fourth Amendment rights were violated as a result of the denial of his motion to suppress and admission of the evidence sought to be excluded. Therefore, these grounds must be denied.
B. GROUND 3 - INEFFECTIVE ASSISTANCE
In Ground 3, Petitioner argues trial counsel was ineffective for failing to investigate and properly present evidence in mitigation. In particular, Petitioner points to: (a) counsel's erroneous argument to the sentencing court that Petitioner had been on death row, when his sentence on the prior conviction was to natural life; (b) counsel's failure to investigate Petitioner's post-traumatic stress disorder; and (c) failure to object to falsehoods in the presentence report. (Petition, Doc. 1 at 8; Memo., Doc. 1-1 at 9-11.)
Respondents argue the Arizona Court of Appeals addressed this claim on the merits on review in Petitioner's PCR proceeding, and that determination survives the deferential review under 28 U.S.C. § 2254(d).
Applying Strickland v. Washington, 466 U.S. 668 (1984), the Arizona Court of Appeals rejected this claim because: (a) Petitioner proffered no prejudice from the misstatement as to the prior sentence; and (b) failed to identify any mitigating evidence that could or should have been presented at sentencing but was not. The court further observed that the trial court considered mitigating evidence from Petitioner's own statement regarding his sentence and childhood accomplishments and counsel's presentation of “mitigating evidence, including details regarding Flower's difficult childhood.” (Exh. P-4, Mem. Dec. 10/5/21 at ¶¶ 5-7.)
The Court's Order setting the original reply deadline instructed:
Respondents also argue the state courts rejected some of Petitioner's claims on the merits and that Petitioner cannot meet the requirements for relief under 28 U.S.C. § 2254(d) (i.e. showing the last reasoned state court decision on the claim was: (1) contrary to or an unreasonable application of U.S. Supreme Court law; or (2) based on an unreasonable determination of the facts in light of the evidence
before the state court). Petitioner's Reply should, at a minimum, demonstrate (for each of his claims for relief addressed by Respondents on the merits) how this standard is met, or why it does not apply.(Order 11/8/22, Doc. 13 at 1.) Despite this instruction, Petitioner has proffered no argument how the limitations on relief under § 2254(d) are met. The undersigned finds they were not.
While the purpose of a federal habeas proceeding is to search for violations of federal law, in the context of a prisoner “in custody pursuant to the judgment a State court,” 28 U.S.C. § 2254(d) and (e), not every error justifies relief. Where the state court has rejected a claim on the merits, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied [the law] incorrectly.” Woodford v. Visciotti, 537 U.S. 19, 24- 25 (2002) (per curiam). Rather, in such cases, 28 U.S.C. § 2254(d) provides restrictions on the habeas court's ability to grant habeas relief based on legal or factual error.
To justify habeas relief based on legal error, a state court's merits-based decision must be “contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” before relief may be granted. 28 U.S.C. §2254(d)(1). Similarly, the habeas courts may grant habeas relief based on factual error only if a state-court merits decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2).
Here, the Arizona Court of Appeals identified the proper standard of deficient performance and prejudice under Strickland and reasonably applied it, and properly placed the burden on Petitioner of establishing those elements. See Strickland, 466 U.S. at 697.
The only deficiency by counsel actually developed by Petitioner is related to the misstatement on his prior sentence. But Petitioner proffers no reason to conclude that there was prejudice, i.e. “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different,” Strickland, 466 U.S. at 694, for example, that the misstatement led “to an increased sentence for the defendant." Daniels v. Woodford, 428 F.3d 1181, 1206 (9th Cir. 2005). The gist of counsel's argument was simply that Petitioner, given his young age at the time of the earlier crimes and his ongoing imprisonment, had become “an ADOC number years ago and nothing more and he has known nothing but prison life since.” (Exh. D, Sent. Memo at 3.) That same argument was supported equally by the factual assertion that Petitioner was on death row or (as was true) serving a life sentence. Moreover, the trial court had before it the presentence report reflecting a life sentence on the prior. (Exh. C, Present. Rep. at 3.) Further the prosecution argued at sentencing that at the time of the instant offenses, Petitioner was serving a “current prison sentence,” not awaiting execution of a death sentence. (Exh. E, R.T. 4/10/18 at 6.) Finally, the trial court rejected the prosecution's call for an effective sentence of 20.75 years (id. at 8), and sentenced Petitioner to an effective term of 11.5 years (id. at 9). Thus the undersigned finds nothing to suggest that the state appellate court's finding of no prejudice was an unreasonable determination of the facts.
Ground 3 is without merit and must be denied.
C. GROUND 4 - DENIAL OF COUNSEL
In Ground 4, Petitioner argues he was denied counsel at sentencing when the trial court asked for Petitioner to speak, asserting Petitioner was “still running the show,” effectively terminating counsel's representation. (Petition, Doc. 1 at 9; Memo., Doc. 1-1 at 11, et seq.)
Respondents argue this claim was rejected on the merits on petition for review in the PCR proceeding, and the state court's decision survives deferential review under 28 U.S.C. § 2254(d) and (e). (Answer, Doc. 12 at 22-24.)
The state court ruled:
¶8 Flowers next argues the trial court committed fundamental error at sentencing, essentially denying him counsel, when it stated, “[L]et's hear from Mr. Flowers, you're still running the show. How do you want to proceed from your side?" After Flowers stated he did not have anything to say, Lockwood argued on his behalf. Flowers has not identified any error. Although he was given an opportunity to speak, he was represented by counsel during the proceeding. And,
although perhaps inartful, the court's comment that Flowers was "running the show" does not suggest that any error occurred. [FN5] * * *
[FN 5] And, as the state points out in its response to the petition for review, the trial court's inquiry was reasonable in light of the fact that Flowers had filed a pro se sentencing memorandum after requesting that counsel represent him at sentencing.(Exh. P-4, Mem. Dec. 10/5/21 at ¶ 8 and n. 5.)
In effect, the appellate court ruled that Petitioner failed to show he was denied counsel. Petitioner proffers nothing to show that this decision was based on an incorrect determination of the facts, let alone an unreasonable one. The undersigned finds the determination supported by the record. (See Exh. E, R.T. 4/10/18 at 4:20-6:8.)
Nor does Petitioner proffer anything to suggest that the state court's decision was contrary to or an unreasonable application of Supreme Court law. It is true the state court did not explicitly analyze the law being applied. But the Supreme Court has held that for a state court decision to pass muster under 28 U.S.C. § 2254(d)(1) “does not require citation of our cases-indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002). “A state court decision that fails to cite or show awareness of U.S. Supreme Court cases may still satisfy the deferential standard of review under § 2254(d)(1) so long as neither the reasoning nor the result of the state opinion contradicts clearly established federal law.” Reno v. Davis, 2022 WL 3570618, at *12 (9th Cir. Aug. 19, 2022).
Here, the controlling Supreme Court law is that “appointment of counsel for an indigent is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected,” including sentencing. Mempa v. Rhay, 389 U.S. 128, 134 (1967) (concluding it extends to sentencings on revocation of probation and deferred sentencings). See also Lopez v. Thompson, 202 F.3d 1110, 1117 (9th Cir. 2000). The Arizona court's decision was consistent with these principals, and simply concluded that in the context of this case (a defendant who self-represented at trial, requested appointment of counsel at sentencing, but nonetheless filed his own sentencing memorandum, and appointed counsel filed a sentencing memorandum and argued for Petitioner at sentencing) Petitioner had been provided counsel at sentencing. Petitioner fails to explain how the trial court's mere reference to him “running the show” and inviting him to speak defeated the representation by appointed counsel.
This claim is without merit and must be denied.
D. GROUND 5 - PROCEDURAL BAR
In Ground 5, Petitioner argues his constitutional rights under Brady v. Maryland, 373 U.S. 83 (1963) were violated when the prosecution failed to disclose material favorable evidence, i.e. an “SSU Memo” or “SSU Report.”
Respondents argue this claim was procedurally barred on an independent and adequate state ground, Petitioner proffers no cause and prejudice or actual innocence, and thus no relief can be granted on the claim. (Answer, Doc. 12 at 24.)
In denying Petitioner's PCR petition for review the Arizona Court of Appeals reasoned: “Flowers also reasserts his claim that the state failed to disclose information, specifically an "SSU memo" that is favorable to him, in violation of Brady, 373 U.S. at 87. This claim is likewise precluded because Flowers could have, but did not, raise it on appeal. See Ariz. R. Crim. P. 32.2(a)(3).” (Exh. P-4, R.T. 10/5/21 at ¶ 10.)
The Rule 32.2(a)(3) referenced by the state court provides that a claim may not ordinarily be brought in a petition for post-conviction relief that "has been waived at trial, on appeal, or in any previous collateral proceeding." Ariz.R.Crim.P. 32.2(a)(3). Under this rule, most claims may be deemed waived if the State simply shows "that the defendant did not raise the error at trial, on appeal, or in a previous collateral proceeding." Stewart v. Smith, 202 Ariz. 446, 449, 46 P.3d 1067, 1070 (2002) (quoting Ariz.R.Crim.P. 32.2, Comments). For others of "sufficient constitutional magnitude," the State "must show that the defendant personally, ''knowingly, voluntarily and intelligently' [did] not raise' the ground or denial of a right." Id. That requirement is limited to those constitutional rights “that can only be waived by a defendant personally.” State v. Swoopes, 216 Ariz. 390, 399, 166 P.3d 945, 954 (App. Div. 2, 2007). In coming to its prescription in Stewart v. Smith, the Arizona Supreme Court identified: (1) waiver of the right to counsel, (2) waiver of the right to a jury trial, and (3) waiver of the right to a twelve-person jury under the Arizona Constitution, as among those rights which require a personal waiver. 202 Ariz. at 450, 46 P.3d at 1071. Here, Petitioner's claim in Ground 5 is not of the sort requiring a personal waiver.
As a result of Petitioner's waiver, his claim was procedurally barred. “[A]bsent showings of ‘cause' and ‘prejudice,' federal habeas relief will be unavailable when (1) ‘a state court [has] declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement,' and (2) ‘the state judgment rests on independent and adequate state procedural grounds.'” Walker v. Martin, 562 U.S. 307, 316 (2011).
In Bennett v. Mueller, 322 F.3d 573 (9th Cir.2003), the Ninth Circuit addressed the burden of proving the independence and adequacy of a state procedural bar.
Once the state has adequately pled the existence of an independent and adequate state procedural ground as an affirmative defense, the burden to place that defense in issue shifts to the petitioner. The petitioner may satisfy this burden by asserting specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule. Once having done so, however, the ultimate burden is the state's.Id. at 584-585. Petitioner fails to proffer anything to suggest that Rule 32.2(a) is not an independent and adequate state ground, sufficient to bar federal habeas review of claims a defendant could have but did not raise on direct appeal. Moreover, the federal courts have routinely held that it is. “Arizona's waiver rules are independent and adequate bases for denying relief.” Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014).
If a habeas petitioner's claim has been procedurally barred on independent and adequate state grounds, he may not obtain federal habeas review of that claim absent a showing of “cause and prejudice” sufficient to excuse the default. Reed v. Ross, 468 U.S. 1, 11 (1984). As noted by Respondents, Petitioner proffers no cause to excuse his failure to properly raise his claim in Ground 5.
It is also true that failure to establish cause may be excused “in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Murray v. Carrier, 477 U.S. 478, 496 (1986). However, a petitioner asserting his actual innocence of the underlying crime must show "it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence" presented in his habeas petition. Schlup v. Delo, 513 U.S. 298, 327 (1995). Moreover, not just any evidence of innocence will do; the petitioner must present “new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” Schlup, 513 U.S. at 324. Here Petitioner proffers no new, credible evidence to show his actual innocence.
Accordingly Ground 5 cannot be considered on its merits, and must be dismissed with prejudice.
IV. CERTIFICATE OF APPEALABILITY
The standard for issuing a certificate of appealability (“COA”) is whether the applicant has “made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. “If the court issues a certificate, the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” 28 U.S.C. § 2253(c)(3). See also Rules Governing § 2254 Cases, Rule 11(a).
Assuming the recommendations herein are followed in the district court's judgment, that decision will be in part on procedural grounds, and in part on the merits. Under the reasoning set forth herein, jurists of reason would not find it debatable whether the district court was correct in its procedural ruling, and jurists of reason would not find the district court's assessment of the constitutional claims debatable or wrong.
V. RECOMMENDATION
IT IS THEREFORE RECOMMENDED:
(A) Ground 5 of Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) be DISMISSED WITH PREJUDICE as procedurally barred.
(B) The remainder of Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) be DENIED.
(C) To the extent the foregoing findings and recommendations are adopted in the District Court's order, a Certificate of Appealability be DENIED.
VI. EFFECT OF RECOMMENDATION
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), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.
However, pursuant to Rule 72(b), Federal Rules of Civil Procedure , the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See also Rule 8(b), Rules Governing Section 2254 Proceedings. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”