Opinion
CV 22-08216-PCT-JJT (ESW)
06-04-2024
Randolph A. Jackson, Jr., Petitioner, v. Ryan Thornell, et al., Respondents.
HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
EILEEN S. WILLETT, UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Randolph A. Jackson, Jr.'s (“Petitioner”) Amended “Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus” (the “Amended Petition”) (Doc. 5). After reviewing the parties' briefing (Docs. 14, 22, 31), the undersigned recommends that the Court deny habeas relief without an evidentiary hearing.
I. BACKGROUND
In March 2018, a jury sitting in the Superior Court of Arizona in and for Yavapai County convicted Petitioner of (i) transporting or importing narcotic drugs for sale in an amount over one gram; (ii) possession or use of drug paraphernalia; and (iii) resisting arrest. (Doc. 22-1 at 25). In April 2018, the trial court sentenced Petitioner to a total of fifteen years' imprisonment. (Id. at 29).
Petitioner timely appealed his convictions and sentences. While his appeal was pending, Petitioner filed two motions to modify his sentence, which the trial court denied. (Doc. 21-1 at 53; 22-2 at 41-42). Petitioner appealed the trial court's rulings. The Arizona Court of Appeals consolidated Petitioner's appeals, and on June 6, 2019, it affirmed Petitioner's convictions. (Doc. 22-1 at 3-17). The Arizona Court of Appeals modified the sentencing minute entry to reflect that the sentence imposed for possession of drug paraphernalia was a “slightly mitigated term,” but affirmed Petitioner's sentences. (Id. at 17). The Arizona Court of Appeals denied Petitioner's motion for reconsideration, and the Arizona Supreme Court denied review. (Doc. 22-2 at 106, 123).
In October 2019, Petitioner filed a timely Notice of Post-Conviction Relief (“PCR”) in the trial court. (Doc. 22-2 at 125). After two attorneys appointed to represent Petitioner in PCR proceedings filed notices stating that they could find no colorable issues to raise, the trial court granted Petitioner leave to file a pro se PCR petition. (Id. at 131-39, 142, 144, 146-54, 156). On June 8, 2020, Petitioner filed his PCR Petition. (Docs. 22-3 at 344). The trial court dismissed the PCR Petition. (Doc. 22-3 at 68-75). Petitioner filed a Petition for Review in the Arizona Court of Appeals, which granted review but denied relief. (Doc. 22-4 at 3-4). The Arizona Supreme Court denied Petitioner's request for further review on December 28, 2021. (Id. at 34).
Petitioner filed a second PCR Notice on June 25, 2021, which the trial court summarily dismissed. (Id. at 36, 42-43). On January 18, 2022, Petitioner filed a third PCR Notice, which the trial court also dismissed. (Id. at 45, 60-63). The trial court denied Petitioner's motion for reconsideration. (Id. at 70). Petitioner initiated a fourth PCR proceeding on November 3, 2022, which the trial court summarily dismissed. (Id. at 95, 99-100). Following denial of the trial court's motion for reconsideration, Petitioner filed a fifth PCR Notice, which the trial court summarily dismissed. (Id. at 119, 121-26; Doc. 225 at 3-4). After the trial court denied Petitioner's motion for reconsideration, Petitioner sought further review by the Arizona Court of Appeals. (Doc. 22-5 at 15-16, 18-77). As reflected in Petitioner's December 20, 2023 filing (Doc. 32 at 5-6), the Arizona Court of Appeals granted review but denied relief on December 12, 2023. Petitioner's pending Motion to Stay (Doc. 25) may be denied as moot.
Petitioner timely initiated this federal habeas proceeding on November 30, 2022. (Doc. 1). On August 7, 2023, he filed his Amended Petition that raises seven grounds for relief. (Docs. 14). Respondents filed an Answer (Doc. 22) on September 29, 2023. Petitioner filed a Reply (Doc. 31) on December 18, 2023. As discussed below, the undersigned finds that 28 U.S.C. § 2254(d) bars relief on Grounds One, Two, Three, and Six because Petitioner has failed to show that the state courts' denial of those claims is (i) contrary to or an unreasonable application of Supreme Court precedent or (ii) based on an unreasonable determination of the facts. The undersigned concurs with Respondents that Grounds Four and Five are procedurally defaulted without excuse. The undersigned also concurs with Respondents that Ground Seven does not present a cognizable habeas claim.
II. GROUNDS ONE, TWO, THREE, AND SIX: HABEAS RELIEF IS BARRED UNDER 28 U.S.C. § 2254(d)
A. Legal Standards Governing Habeas Review
In reviewing a habeas petitioner's claims, the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) requires federal courts to defer to the last reasoned state court decision. Woods v. Sinclair, 764 F.3d 1109, 1120 (9th Cir. 2014); Henry v. Ryan, 720 F.3d 1073, 1078 (9th Cir. 2013). To be entitled to relief, a state prisoner must show that the state court's adjudication of his or her claims either:
1. resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
2. resulted in a decision that 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)(1), (2); see also, e.g., Woods, 764 F.3d at 1120; Parker v. Matthews, 132 S.Ct. 2148, 2151 (2010); Harrington v. Richter, 562 U.S. 86, 99 (2011).
As to relief under 28 U.S.C. § 2254(d)(1), “clearly established federal law” refers to the holdings of the U.S. Supreme Court's decisions applicable at the time of the relevant state court decision. Carey v. Musladin, 549 U.S. 70, 74 (2006); Thaler v. Haynes, 559 U.S. 43, 47 (2010). A state court decision is “contrary to” such clearly established federal law if the state court (i) “applies a rule that contradicts the governing law set forth in [U.S. Supreme Court] cases” or (ii) “confronts a set of facts that are materially indistinguishable from a decision of the [U.S. Supreme Court] and nevertheless arrives at a result different from [U.S. Supreme Court] precedent.” Price v. Vincent, 538 U.S. 634, 640 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). “The ‘unreasonable application' clause of § 2254(d)(1) applies when the ‘state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.'” Holland v. Jackson, 542 U.S. 649, 652 (2004) (quoting Williams, 529 U.S. at 413).
As to relief under 28 U.S.C. § 2254(d)(2), factual determinations by state courts are presumed correct unless the petitioner can show by clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1); see also Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (“Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding, § 2254(d)(2)[.]”).
B. Grounds One through Three: Denial of Petitioner's Mid-Trial Request to Continue
Petitioner represented himself during trial with the presence of advisory counsel. Petitioner's claims in Grounds One through Three stem from the trial court's denial of Petitioner's request made mid-trial to continue the proceeding so that Petitioner could obtain new counsel. The undersigned concurs with Respondents that Grounds One through Three are interrelated and the claims will be addressed together.
1. Background Pertaining to Grounds One through Three
From the time of Petitioner's indictment in March 2014, Petitioner had seven different attorneys, five appointed by the trial court and two privately retained. (Doc. 226 at 138). In addition, on three separate occasions prior to trial, Petitioner decided to waive his right to counsel and proceed pro se. (Id.). Over the four years the case was pending, the trial date was reset five times. (Id.).
Petitioner was represented by counsel when the trial commenced on February 27, 2018. (Doc. 22-5 at 93). During a pre-trial conference that morning, Petitioner again asserted his desire to represent himself. (Doc. 22-5 at 99-100). Petitioner stated that he “might want to hire [his] own counsel.” (Id. at 118). The trial court told Petitioner that he is “free to do that if [he] want[s] to do that during the trial, but we're not going to continue the trial.” (Id.). After the court conducted a colloquy with Petitioner, the trial court accepted his waiver of the right to counsel. (Id. at 126-27). Trial then proceeded, with Petitioner representing himself and his most recent counsel, Tony Gonzales, serving as advisory counsel. (Id. at 127).
On the fourth day of trial, after the State had finished presenting its case-in-chief, Petitioner indicated that he wanted to testify and requested that an attorney ask him questions on direct examination. (Doc. 22-6 at 42-43). When the trial court explained to Petitioner that if he is going to testify he would “have to testify to questions that [advisory counsel] asks that you have prepared,” Petitioner said that he wanted to “recuse” himself and have counsel represent him. (Id. at 43-44). The trial court said it would consider having Petitioner's advisory counsel represent him, but Petitioner refused. (Id. at 44, 47). The trial court asked: “So Mr. Jackson, before we go any further, are you asking that [advisory counsel] at this point in time, now that the State has rested, that you no longer want to represent yourself, is that your understanding?” (Id. at 47). Petitioner replied: “I didn't tell you I would pick [advisory counsel]. I told you I don't want to represent myself, and I need counsel.” (Id.). The trial court then stated: “If you decide at this point in time in the middle of trial that you no longer want to represent yourself, then I'm going to reappoint [advisory counsel] to represent you.” (Id.). Petitioner asked if he could hire his own attorney, someone in Phoenix that he had been “consulting with,” and the trial court explained that it would not continue the trial and reiterated that if he did not want to represent himself, the court would appoint his advisory counsel to represent him for the remainder of the trial. (Id. at 48). After Petitioner again refused, and advisory counsel said that he was not ready to proceed, the trial court ruled that the trial would continue with Petitioner representing himself. (Id. at 49-52).
2. Analysis of Grounds One through Three
In Ground One, Petitioner argues that the trial court violated his right to counsel by not allowing him to rescind his waiver of counsel during the trial. (Doc. 14 at 9-12).
In Ground Two, Petitioner argues that the trial court's refusal to grant a continuance to allow him to find and retain new counsel “effectively denied” his right to counsel. (Id. at 12-14).
In Ground Three, Petitioner states that while he “did initially waive his right to counsel, he realized that he was not prepared to represent himself. He retained the right to rescind that waiver and be represented by counsel, even though his request came during trial.” (Id. at 17). Petitioner argues that the “appointment of new counsel was fundamental and necessary.” (Id. at 18-19).
Respondents concede that Petitioner raised Grounds One through Three in his direct appeal. (Doc. 22 at 21-24). In denying Petitioner's claims, the Arizona Court of Appeals stated:
¶35 Jackson contends that the trial court erred in denying his motion to continue, filed during trial, to allow him to obtain private counsel. “We review the court's interpretation of a constitutional right de novo,” State v. Aragon, 221 Ariz. 88, 90, ¶ 4 (App. 2009), and its denial of a request for a continuance in order to substitute counsel for an abuse of discretion, State v. Hein, 138 Ariz. 360, 368 (1983) (citing State v. Sullivan, 130 Ariz. 213, 215 (1981)).
¶36 A trial court is given “wide latitude in balancing the right to counsel of choice against the needs of fairness, and against the demands of its calendar.” United States v. Gonzalez-Lopez, 548 U.S. 140, 152 (2006) (citation omitted). Our supreme court has stated that “[w]hether an accused's constitutional rights are violated by the denial of a request for a continuance depends on the circumstances present in the particular case.” Hein, 138 Ariz. at 369 (citing United States v. Casey, 480 F.2d 151, 152 (5th Cir. 1973)). In making this
determination, we look to the number of other continuances granted, the length of the requested delay, the inconvenience to litigants, jurors, and witnesses, and the sincerity of the request. Id.
¶37 Here, the trial court granted multiple continuances, appointed numerous attorneys to the case, and, prior to the start of trial, fully briefed Jackson on the consequences of representing himself. Jackson's request was made following the State's presentation of its case-in-chief with a jury already empaneled. On this record, the court did not abuse its discretion in denying Jackson's requested continuance. See State v. Dixon, 226 Ariz. 545, 553, ¶ 39 (2011).(Doc. 22-1 at 12-13).
The Supreme Court has held that “[t]he matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel.” Ungar v. Sarafite, 376 U.S. 575, 589 (1964) (citing Avery v. Alabama, 308 U.S. 444 (1940)). “There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process.” Id. “The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.” Id. The Supreme Court has also held that “only an unreasoning and arbitrary ‘insistence upon expeditiousness in the face of a justifiable request for delay' violates the right to the assistance of counsel.” Morris v. Slappy, 461 U.S. 1, 11-12 (1983) (citing Ungar, 376 U.S. at 589).
Here, the Arizona Court of Appeals considered the relevant circumstances surrounding Petitioner's request for a continuance, including (i) the number of continuances previously granted; (ii) the timing of the request, which was made right after the State rested its case; and (iii) the potential inconvenience to the litigants, jurors, witnesses, and the trial court. (Doc. 22-1 at 12-13). The Arizona Court of Appeals found that these factors weighed against granting Petitioner's request and concluded that the trial court did not abuse its discretion in denying a continuance. Id. Although Petitioner argues that the denial of his request violated his right to counsel, reasonable jurists could conclude that, under the circumstances, the request for delay was not “justifiable” within the meaning of Morris. See Morris, 461 U.S. at 11-12.
“As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings.” Richter, 562 U.S. at 102. After reviewing the parties' briefing and the submitted record, the undersigned finds that Petitioner has failed to show that the Arizona Court of Appeals' rejection of his claims in Grounds One through Three is (i) contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court or (ii) based on an unreasonable determination of the facts. 28 U.S.C. § 2254 bars relief. It is thus recommended that the Court deny Grounds One, Two, and Three.
C. Ground Six: Alleged Brady Violation
1. Background Pertaining to Ground Six
Petitioner's convictions at issue in this matter arise from a March 2014 traffic stop by the Yavapai County Sheriff's Office (“YCSO”). The Arizona Court of Appeals recounted that:
¶ 2 In March 2014, two Yavapai County Sheriff's Office (YCSO) deputies parked in separate patrol vehicles monitored the roadway for traffic violations.[ ] One deputy used a radar gun to determine the vehicle in which Jackson was a passenger was traveling eighty miles per hour in a seventy-five-mile-per-hour zone. He also saw the vehicle cross over the fog line and watched as the driver seemed to hide from his view. When the deputy pulled onto the roadway, the vehicle slowed to seventy miles per hour.
¶3 When the deputy stopped the vehicle, he smelled an odor of marijuana and asked the driver and Jackson to exit. Jackson stated they were returning from Nevada and California to Oklahoma, where he had rented the vehicle. When asked about the smell of marijuana, Jackson claimed he legally smoked marijuana in California. Around this time, the deputy learned from dispatch that the rental car company in Oklahoma had reported the vehicle stolen.
¶4 After being arrested and informed of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), Jackson became
belligerent and combative, forcefully pushing and pulling away from the deputies. Once Jackson was subdued, a search incident to arrest revealed approximately ten ounces of heroin in the insoles of Jackson's shoes. After obtaining a search warrant for Jackson's phone, the deputies found photos and text messages indicative of drug trafficking.(Doc. 22-1 at 4-5) (footnote omitted).
The Arizona Court of Appeals noted that before trial, Petitioner filed multiple discovery requests and motions to compel the State to produce dash camera recordings from the YCSO vehicle. (Id. at 8, ¶16). At a pretrial hearing, one of the YCSO deputies, Randy Evers (“Deputy Evers”), testified that “his dash camera equipment was not broken, but he could not download recordings.” (Id., ¶17). The State later disclosed that Deputy Evers had resigned from YCSO prior to an internal investigation which “revealed numerous discrepancies and inconsistencies in [his] statements and claims pertaining to the condition of his issued camera and audio recording devices.” (Id.). The trial court reviewed the internal investigation records in camera and ordered portions to be disclosed to the defense, and the State complied. (Id.).
Petitioner filed additional motions seeking metadata from the deputy's “in-car system hard drives” and to inspect the patrol vehicle. (Id.). The State “avowed that all available evidence had been disclosed and any metadata would have been overwritten within months of the date of the offense, which was nearly two years prior to the State or YCSO learning of the issue involving the deputy's equipment.” (Id.). The trial court found that the State had complied with its disclosure obligations. (Id.)
At trial, Deputy Evers testified that his dash camera equipment was not broken but he could not download recordings. (Id., ¶19). Deputy Evers denied any attempts to cover up misconduct. (Id.). The Arizona Court of Appeals noted that Petitioner “extensively cross-examined” Deputy Evers about his disciplinary records, inconsistent statements, and failure to preserve recordings of the arrest. (Id.). Petitioner testified that the deputies had destroyed or withheld recordings to hide their own alleged misconduct. (Id.).
2. Analysis of Ground Six
In Ground Six, Petitioner alleges a Brady violation, asserting that the State “failed to preserve and disclose the videos from the dash cams that are routinely used by law enforcement throughout the state.” (Doc. 14 at 30).
The undersigned concurs with Respondents (Doc. 22 at 9) that to the extent Ground Six presents a subclaim alleging that “the defense should have been able to present additional evidence relating to the action of then-Deputy Evers” (Doc. 14 at 35), the claim is not cognizable as it does not allege a violation of the federal constitution or law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (per curiam) (stating that federal law “unambiguously provides that a federal court may issue a writ of habeas corpus to a state prisoner only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States'”) (quoting 28 U.S.C. § 2254(a)).
The Supreme Court held in Brady v. Maryland, 373 U.S. 83 (1963), that the “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id. at 87. Evidence is considered “material” when there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the proceeding would have been different. Cone v. Bell, 556 U.S. 449, 46970 (2009). This does not require a showing that the defendant would more likely than not have received a different verdict, only that the suppressed evidence undermines confidence in the outcome of the trial. Smith v. Cain, 132 S.Ct. 627, 630 (2012).
The Arizona Court of Appeals addressed Ground Six in its decision affirming Petitioner's convictions. The appellate court acknowledged that the testifying YCSO deputy “provided inconsistent statements regarding his dash camera equipment,” but determined that
it is unclear from the record whether any recordings or related metadata were ever created or, if created, what they would have captured. The ‘mere possibility' that the items would have aided Jackson's defense is not enough to establish a Brady violation. Agurs, 427 U.S. at 109-10. Additionally, the prosecutor timely disclosed the deputy's disciplinary records and the jury heard that the deputy had resigned just prior to a finding that he was inconsistent and, at the very least, lacked
competency related to the use of his dash camera equipment. Nothing from the record indicates undisclosed exculpatory evidence was withheld from the jury. See State v. Jessen, 130 Ariz. 1, 4 (1981) (“When previously undisclosed exculpatory information is revealed at the trial and is presented to the jury, there is no Brady violation.”).(Doc. 22-1 at 9, ¶ 23).
Petitioner argues that Deputy Evers “gave conflicting reasons why the video of the incident was not captured” and that “his word of what occurred was improperly and prejudicially relied upon in prosecuting” Petitioner. (Doc. 14 at 30). Petitioner also contends that “[u]nder the circumstances of this case, it can be presumed that the dash cams were intentionally destroyed.” (Id. at 31). Petitioner provides no evidence to support this claim beyond his own speculation. The undersigned agrees with Respondents that Petitioner's Brady claim rests on speculation that a dash camera recording existed and might have contained exculpatory information. (Doc. 22 at 26). Such speculation is insufficient to demonstrate a Brady violation. See United States v. Michaels, 796 F.2d 1112, 1116 (9th Cir. 1986) (“[M]ere speculation about materials in the government's files [does not require] the district court ... under Brady to make the materials available for [appellant's] inspection.”); United States v. Guzman-Padilla, 573 F.3d 865, 890 (9th Cir. 2009) (rejecting a Brady claim that was speculative).
After reviewing the parties' briefing and the submitted record, the undersigned finds that Petitioner has failed to show that the Arizona Court of Appeals' denial of Ground Six is (i) contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court or (ii) based on an unreasonable determination of the facts. 28 U.S.C. § 2254 bars relief. The undersigned recommends that the Court deny Ground Six.
III. GROUNDS FOUR AND FIVE ARE PROCEDURALLY DEFAULTED
A. Legal Standards
1. Exhaustion-of-State-Remedies Doctrine
It is well-settled that a “state prisoner must normally exhaust available state remedies before a writ of habeas corpus can be granted by the federal courts.” Duckworth v. Serrano, 454 U.S. 1, 3 (1981); see also Picard v. Connor, 404 U.S. 270, 275 (1971) (“It has been settled since Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886), that a state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for habeas corpus. ”). The rationale for the doctrine relates to the policy of federal-state comity. Picard, 404 U.S. at 275 (1971). The comity policy is designed to give a state the initial opportunity to review and correct alleged federal rights violations of its state prisoners. Id. In the U.S. Supreme Court's words, “it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation.” Darr v. Burford, 339 U.S. 200, 204 (1950); see also Reed v. Ross, 468 U.S. 1, 11 (1984) (“[W]e have long recognized that in some circumstances considerations of comity and concerns for the orderly administration of criminal justice require a federal court to forgo the exercise of its habeas corpus power.”) (citations and internal quotation marks omitted).
The exhaustion doctrine is codified at 28 U.S.C. § 2254. That statute provides that a habeas petition may not be granted unless the petitioner has (i) “exhausted” the available state court remedies; (ii) shown that there is an “absence of available State corrective process”; or (iii) shown that “circumstances exist that render such process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1).
Case law has clarified that in order to “exhaust” state court remedies, a petitioner's federal claims must have been “fully and fairly presented” in state court. Woods v. Sinclair, 764 F.3d 1109, 1129 (9th Cir. 2014). To “fully and fairly present” a federal claim, a petitioner must present both (i) the operative facts and (ii) the federal legal theory on which his or her claim is based. This test turns on whether a petitioner “explicitly alerted” a state court that he or she was making a federal constitutional claim. Galvan v. Alaska Department of Corrections, 397 F.3d 1198, 1204-05 (9th Cir. 2005). “It is not enough 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) (citation omitted); see also Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), as modified by 247 F.3d 904 (9th Cir. 2001) (federal basis of a claim must be “explicit either by citing federal law or the decisions of federal courts, even if the federal basis is self-evident or the underlying claim would be decided under state law on the same considerations that would control resolution of the claim on federal grounds”).
2. Procedural Default Doctrine
If a claim was presented in state court, and the court expressly invoked a state procedural rule in denying relief, then the claim is procedurally defaulted in a federal habeas proceeding. See, e.g., Zichko v. Idaho, 247 F.3d 1015, 1021 (9th Cir. 2001). Even if a claim was not presented in state court, a claim may be procedurally defaulted in a federal habeas proceeding if the claim would now be barred in state court under the state's procedural rules. See, e.g., Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002).
Similar to the rationale of the exhaustion doctrine, the procedural default doctrine is rooted in the general principle that federal courts will not disturb state court judgments based on adequate and independent state grounds. Dretke v. Haley, 541 U.S. 386, 392 (2004). A habeas petitioner who has failed to meet the state's procedural requirements for presenting his or her federal claims has deprived the state courts of an opportunity to address those claims in the first instance. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991).
As alluded to above, a procedural default determination requires a finding that the relevant state procedural rule is an adequate and independent rule. See id. at 729-30. An adequate and independent state rule is clear, consistently applied, and well-established at the time of a petitioner's purported default. Greenway v. Schriro, 653 F.3d 790, 797-98 (9th Cir. 2011); see also Calderon v. U.S. Dist. Court (Hayes), 103 F.3d 72, 74-75 (9th Cir. 1996). An independent state rule cannot be interwoven with federal law. See Ake v. Oklahoma, 470 U.S. 68, 75 (1985). The ultimate burden of proving the adequacy of a state procedural bar is on the state. Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003).
B. Grounds Four and Five are Procedurally Defaulted
Petitioner's Grounds Four and Five allege the ineffective assistance of counsel. (Doc. 14 at 19-29). In Ground Four, Petitioner argues that his advisory counsel, Tony Gonzales, did not advise or assist him. (Id. at 19-21). As mentioned, Mr. Gonzales represented Petitioner prior to becoming advisory counsel. In Ground Five, Petitioner argues that during his representation, Mr. Gonzales provided ineffective assistance for failing to file appropriate motions, discuss the case with Petitioner, or develop a defense strategy. (Id. at 22-26). Ground Five also asserts the ineffective assistance of appellate counsel for failing to argue on direct appeal that “due process was violated because of the bad faith of Deputy Evers.” (Id. at 29). Petitioner argues that
the test for a violation of due process in this case was dependent on the subjective intent of Deputy Evers, which was made clear after the investigation and determinations by the Sheriffs Review Board and the forced resignation of Deputy Evers. The test for a Willits instruction, which was argued by [appellate counsel], only and explicitly covers an innocent destruction. This clearly was not that.(Id. at 29-30).
It is first noted that Petitioner concedes that he did not present Ground Five to the Arizona Court of Appeals.(Doc. 14 at 30; Doc. 22-3 at 77-91). The claim is thus unexhausted. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“Because the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts, [the Supreme Court has concluded] that state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.”); Castillo v. McFadden, 399 F.3d 993, 998 n.3 (9th Cir. 2005) (PCR claims of “Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.”).
The Amended Petition states that Petitioner presented Ground Five to the Arizona Supreme Court during his direct appeal. (Doc. 14 at 30). Even if his Petition for Review may be construed as presenting Ground Five, a petitioner generally cannot exhaust a habeas claim by circumventing a state's lower courts and going directly to the state's higher courts. See Casey v. Moore, 386 F.3d 896, 915-18 (9th Cir. 2004) (habeas claim presented by petitioner to state supreme court was unexhausted because the petitioner did not fairly present the claim to the state's court of appeals); Castille v. Peoples, 489 U.S. 346, 351 (1989) (“[W]here the claim has been presented for the first and only time in a procedural context in which its merits will not be considered unless ‘there are special and important reasons therefor,” . . . . Raising the claim in such a fashion does not, for the relevant purpose, constitute ‘fair presentation.'”); Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994) (“Submitting a new claim . . . in a procedural context in which its merits will not be considered absent special circumstances does not constitute fair presentation.”). Respondents are correct that any presentation of Ground Five to the Arizona Supreme Court during the direct appeal would not serve to fairly present the claim to the state courts. (Doc. 22 at 17-18).
As to Ground Four, the Amended Petition states that Petitioner presented the claim to the trial court in his first PCR proceeding and subsequently presented it to the Arizona Court of Appeals. (Doc. 14 at 21). Upon review, the undersigned finds that Respondents accurately assert that Petitioner did not fairly present any claims regarding the ineffective assistance of his trial or advisory counsel in his first PCR proceeding. (Doc. 22 at 17). In his June 8, 2020 PCR Petition filed in the trial court, Petitioner raised claims alleging that (i) he was denied his right to counsel at a June 2016 suppression hearing and “forced” to represent himself while under the influence of narcotic pain medication; (ii) the trial court violated his due process rights by denying him a continuance on the first day of trial to allow him to prepare his defense after he began representing himself; (iii) the trial court wrongfully denied counsel of choice; (iv) the trial court improperly “forced” Petitioner to continue representing himself during trial and denied counsel; (v) his due process rights were violated because the State used evidence obtained through an unlawful arrest; (vi) the trial court imposed a sentence that was not authorized by law; and (vii) Petitioner's appellate counsel was ineffective for “failing to raise or properly brief any of the claims” raised in Petitioner's pro se PCR Petition. (Doc. 22-3 at 8-15).
Petitioner's subsequent PCR proceedings were summarily dismissed on the basis that the claims raised were precluded by Arizona Rule of Criminal Procedure 32.2. (Doc. 22-4 at 42-43, 60-63, 99-100; Doc. 22-5 at 3-4). Arizona Rule of Criminal Procedure 32.2 constitutes an “adequate and independent” state ground for denying review. See, e.g., Stewart v. Smith, 536 U.S. 856, 860 (2002) (per curiam) (preclusion of issues for failure to present them at an earlier proceeding under Arizona Rule of Criminal Procedure 32.2(a)(3) “are independent of federal law because they do not depend upon a federal constitutional ruling on the merits”); Jones v. Ryan, 691 F.3d 1093, 1101 (9th Cir. 2012) (“Arizona Rule of Criminal Procedure 32.2(a)(3) is independent of federal law and has been regularly and consistently applied, so it is adequate to bar federal review of a claim.”); Murray v. Schriro, 745 F.3d 984, 1016 (9th Cir. 2014) (“[A] claim that has been ‘waived' under [Ariz. R. Crim. P. 32.2(a)(3)] is procedurally defaulted and therefore barred from federal court consideration, absent a showing of cause and prejudice or fundamental miscarriage of justice.”) (quoting Poland v. Stewart, 169 F.3d 573, 578 (9th Cir. 1998)). To the extent that Petitioner's second, third, fourth, or fifth PCR proceedings may be construed as presenting the claims in Grounds Four or Five, the claims are procedurally defaulted as the state court dismissed the proceedings by invoking an adequate and independent state rule.
Petitioner cannot return to state court to exhaust Grounds Four and Five as they would be found waived and untimely under Rules 32.2(a) and 32.4(b) of the Arizona Rules of Criminal Procedure. Because adequate and independent state rules would preclude Petitioner from returning to state court to exhaust Grounds Four and Five, the undersigned finds that the claims are procedurally defaulted. See Beaty, 303 F.3d at 987 (a claim is procedurally defaulted “if the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the requirement would now find the claims procedurally barred”) (quoting Coleman, 501 U.S. at 735 n.1)).
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.”).
C. Petitioner's Procedural Defaults are Not Excused
The merits of a habeas petitioner's procedurally defaulted claims are to be reviewed if the petitioner (i) shows cause for the default and actual prejudice as a result of the alleged violation of federal law or (ii) shows that the failure to consider the federal claim will result in a fundamental miscarriage of justice. McKinney v. Ryan, 730 F.3d 903, 913 (9th Cir. 2013).
In order to establish cause for a procedurally defaulted claim, “a petitioner must demonstrate that the default is due to an external objective factor that cannot fairly be attributed to him.” Smith v. Baldwin, 510 F.3d 1127, 1146 (9th Cir. 2007) (internal quotation marks and citation omitted). Under Ninth Circuit precedent, Petitioner's status as an inmate with limited legal resources does not constitute cause. See Hughes v. Idaho State Bd. of Corr., 800 F.2d 905, 909 (9th Cir. 1986) (an illiterate pro se petitioner's lack of legal assistance did not amount to cause to excuse a procedural default); Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988) (petitioner's arguments concerning his mental health and reliance upon jailhouse lawyers did not constitute cause).
The undersigned finds that Petitioner has failed to establish that his procedural defaults are “due to an external objective factor that cannot fairly be attributed to him.” Smith, 510 F.3d at 1146 (internal quotation marks and citation omitted). Petitioner has therefore failed to show cause for his procedural defaults. Where a petitioner fails to establish cause, the Court need not consider whether the petitioner has shown actual prejudice resulting from the alleged constitutional violations. Smith v. Murray, 477 U.S. 527, 533 (1986). Accordingly, the undersigned finds that Petitioner has not satisfied the “cause and prejudice” exception to excuse his procedural defaults.
To satisfy the fundamental miscarriage of justice exception, Petitioner must show that “a constitutional violation has resulted in the conviction of one who is actually innocent.” Schlup v. Delo, 513 U.S. 298, 327 (1995). To the extent Petitioner may assert that he is innocent, Petitioner has failed to satisfy his burden of producing “new reliable evidence” of actual innocence. See id. at 324 (“To be credible, such a claim 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.”). The undersigned recommends that the Court find that Petitioner cannot pass through the actual innocence/Schlup gateway to excuse his procedural defaults. See Smith v. Hall, 466 Fed.Appx. 608, 609 (9th Cir. 2012) (explaining that to pass through the Schlup gateway, a petitioner must first satisfy the “threshold requirement of coming forward with ‘new reliable evidence'”); Griffin v. Johnson, 350 F.3d 956, 961 (9th Cir. 2003) (“To meet [the Schlup gateway standard], [petitioner] must first furnish ‘new reliable evidence . . . that was not presented at trial.'”) (quoting Schlup, 513 U.S. at 324). Consequently, the undersigned recommends that the Court dismiss Grounds Four and Five.
IV. GROUND SEVEN IS NOT A COGNIZABLE HABEAS CLAIM
In Ground Seven, Petitioner alleges that his sentence was unlawful because the trial court improperly enhanced his sentence based on a prior conviction. (Doc. 14 at 36). Respondents correctly observe that Ground Seven does not allege that Petitioner is in custody in violation of federal law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (per curiam) (stating that federal law “unambiguously provides that a federal court may issue a writ of habeas corpus to a state prisoner ‘only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States'”) (quoting 28 U.S.C. § 2254(a)).
Further, Respondents correctly assert in their Answer (Doc. 22 at 9-11) that a district court on habeas review cannot reexamine state court determinations on state law questions. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas court to reexamine state court determinations on state-law grounds.”); Gilmore v. Taylor, 508 U.S. 333, 348-49 (1993) (“[M]ere error of state law, one that does not rise to the level of a constitutional violation, may not be corrected on federal habeas.”); Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (“[F]ederal habeas corpus relief does not lie for errors of state law.”). A habeas petitioner may not “transform a state-law issue into a federal one merely by asserting a violation of due process.” Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996).
Because Ground Seven challenges the application of state law, the claim is not cognizable on federal habeas corpus review. See Estelle, 502 U.S. at 67-68; Watts v. Bonneville, 879 F.2d 685, 687 (9th Cir. 1989) (holding the sentencing error claim under the state penal code was not cognizable on federal habeas review); Miller v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989) (holding whether the offense qualified as a “serious felony” for purposes of state sentence enhancement provisions is not cognizable on federal habeas review); Sturm v. Cal. Adult Auth., 395 F.2d 446, 448 (9th Cir. 1967) (observing that “a state court's interpretation of its [sentencing] statute does not raise a federal question” necessary for federal habeas review); Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) (finding that petitioner's claim that the state court erred in imposing consecutive sentences was not cognizable in federal habeas); Hendricks v. Zenon, 993 F.2d 664, 674 (9th Cir. 1993) (holding that “claim regarding merger of convictions for sentencing is exclusively concerned with state law and therefore not cognizable in a federal habeas corpus proceeding.”); Gerlaugh v. Lewis, 898 F.Supp. 1388, 1412-13, n.18 (D. Ariz. 1995) (declining to address habeas petitioner's claim that his sentence violated Ariz. Rev. Stat. § 13-116 because “[w]hether Petitioner's sentence violates Ariz. Rev. Stat. § 13-116 alleges an error of state law”). Accordingly, it is recommended that the Court dismiss Ground Seven.
V. REQUEST FOR AN EVIDENTIARY HEARING
Petitioner requests an evidentiary hearing. (Doc. 14 at 19; Doc. 31 at 13). AEDPA imposes “an express limitation on the power of a federal court to grant an evidentiary hearing and [has] reduced considerably the degree of the district court's discretion.” Baja v. Ducharme, 187 F.3d 1075, 1078 (9th Cir. 1999) (internal quotation marks and citation omitted). 28 U.S.C. § 2254(e)(2) provides that if a habeas petitioner “has failed to develop the factual basis of a claim in State court proceedings,” no evidentiary hearing on the claim will be held in federal court unless the petitioner shows that:
(A) the claim relies on:
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that, but for
constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense.28 U.S.C. § 2254(e)(2). “Finally, even if all of these requirements are satisfied, a federal habeas court still is not required to hold a hearing or take any evidence.” Shinn v. Ramirez, 596 U.S. 366, 381-82 (2022). The Supreme Court has explained that “[l]ike the decision to grant habeas relief itself, the decision to permit new evidence must be informed by principles of comity and finality that govern every federal habeas case.” Id.
Case law has clarified that review under Section 2254(d) is limited to the record that was before the state court that adjudicated the claim on the merits. Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (holding that “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits”); Gulbrandson v. Ryan, 738 F.3d 976, 993 n.6 (9th Cir. 2013) (stating that Pinholster and the statutory text make clear that limitation on evidentiary hearings applies to Section 2254(d)(2) claims as well). In Gulbrandson, the Ninth Circuit Court of Appeals held that a U.S. District Court did not abuse its discretion in denying a habeas petitioner's request for an evidentiary hearing regarding the petitioner's ineffective assistance of counsel claims. The Court explained that “the state court's rejections of these claims were neither contrary to, nor involved unreasonable applications, of Strickland. Thus, Pinholster bars a habeas court from any further factual development on these claims.” Gulbrandson, 738 F.3d at 994; see also Stokley v. Ryan, 659 F.3d 802, 807 (9th Cir. 2011) (finding that a habeas petitioner was not entitled to an evidentiary hearing as the petitioner failed to present a colorable ineffective assistance of counsel claim). Further, “if the record refutes the [habeas] applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (a hearing is not required if the allegations would not entitle the petitioner to relief under Section 2254(d)); Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998) (“[A]n evidentiary hearing is not required on issues that can be resolved by reference to the state court record.”) (emphasis in original).
The undersigned finds that the record is adequately developed. It is recommended that the Court deny Petitioner's request for an evidentiary hearing. See Roberts v. Marshall, 627 F.3d 768, 773 (9th Cir. 2010) (finding “a district court is not obligated to hold evidentiary hearings to further develop the factual record” when the record is “amply developed” and explaining that “[d]istrict courts have limited resources (especially time), and to require them to conduct further evidentiary hearings when there is already sufficient evidence in the record to make the relevant determination is needlessly wasteful”).
VI. CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that the Court (i) deny Grounds One, Two, Three, and Six of the Amended Petition (Doc. 14) and (ii) dismiss with prejudice Grounds Four, Five, and Seven.
IT IS FURTHER RECOMMENDED that the Court deny Petitioner's request for an evidentiary hearing.
IT IS FURTHER RECOMMENDED that the Court deny Petitioner's Motion to Stay (Doc. 25) either (i) for the reason set forth in the undersigned's November 30, 2023 Report and Recommendation or (ii) on the basis that the requested stay is now moot in light of the Arizona Court of Appeals' decision issued on December 12, 2023 (Doc. 32 at 5-6).
IT IS FURTHER RECOMMENDED that a certificate of appealability and leave to proceed in forma pauperis on appeal be denied because dismissal of Grounds Four and Five of the Amended Petition is justified by a plain procedural bar, dismissal of Ground Seven is warranted on the basis that the claim is not cognizable, and Petitioner has not made a substantial showing of the denial of a constitutional right in his remaining claims for relief.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) 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. Thereafter, the parties have fourteen days within which to file a response to the 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. Failure to file timely objections to any factual determinations 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 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).