Opinion
CV-22-08228-PCT-DLR (DMF)
07-14-2023
Hubert Livingston Johnson, Petitioner, v. David Shinn, et al., Respondents.
TO THE HONORABLE DOUGLAS L. RAYES, 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. 6 at 4)
Citation to the record indicates documents as displayed in the official Court electronic document filing system maintained by the District of Arizona under Case No. CV-22-08228-PCT-DLR (DMF).
I. THESE HABEAS PROCEEDINGS
On December 3, 2022, Petitioner Hubert Livingston Johnson (“Petitioner”), who is confined in the Arizona State Prison Complex in Kingman, Arizona, filed a pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (NonDeath Penalty) (“Petition”) following an imprisonment sentence imposed upon Petitioner's admission to probation violation in Mohave County Superior Court case number CR2020-000055. (Doc. 1) In Ground One, Petitioner asserts he was denied due process and equal protection of the law, in violation of the Fourth, Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments. (Id. at 6) In Ground Two, Petitioner contends he received ineffective assistance of counsel. (Id. at 7)
The Petition was docketed by the Clerk of Court on December 8, 2022. (Doc. 1 at 1; Doc. 1-1) The Petition contains a declaration by Petitioner that he placed the Petition in the prison mailing system on December 3, 2022. (Id. at 11) This Report and Recommendation uses December 3, 2022, as the operative filing date of the 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.”).
Previously, Petitioner had filed a habeas action relating to the same matter, which was dismissed without prejudice on August 4, 2022, because Petitioner had not exhausted available state-court remedies before he filed the habeas proceedings; Petitioner's PCR proceedings were pending at the Arizona Court of Appeals at the time of the previous habeas action. Johnson v. State of Arizona, et al., CV-22-08115-PCT-DLR (DMF).
On January 12, 2023, the Court ordered Respondents to answer the Petition and ordered that “Petitioner may file a reply within 30 days from the date of service of the answer.” (Doc. 6 at 3-4)
On March 22, 2023, Respondents filed their Limited Answer to the Petition. (Doc. 11) In their Limited Answer, Respondents assert that Petitioner's habeas claims are procedurally defaulted without excuse and that Petitioner's ineffective assistance of counsel (“IAC”) claim is meritless. (Id.) The Limited Answer reflects service by mail to Petitioner at Petitioner's mailing address. (Id. at 22)
As his reply, Petitioner filed a “Respectful Objection to the Attorney Generals Assistance's Response” signed by Petitioner on April 13, 2023. (Doc. 14) Petitioner's filing states that he “disagrees” with the Limited Answer “[f]or the simple fact that the Mohave Police Officer lied and manipulated his authority and power to not protect his duty to protect and serve.” (Id. at 1)
In their Limited Answer, Respondents request substitution of named official Respondents:
Former Arizona Department of Corrections, Rehabilitation and Reentry Director David Shinn retired on January 4, 2023, and former Arizona Attorney General Mark Brnovich left the office on January 1, 2023.
Respondent's respectfully request that the Court substitute Director Ryan Thornell for David Shinn and Arizona Attorney General Kristin K. Mayes for Mark Brnovich. See Fed.R.Civ.P. 25(d).(Doc. 11 at 1, footnote 1) This request to substitute as Respondents current Arizona Department of Corrections, Rehabilitation and Reentry Director Ryan Thornell and current Arizona Attorney General Kristin K. Mayes is not directly opposed by Petitioner and has merit. It is recommended that the substitution be ordered.
On January 12, 2023, the Court substituted in place of David Shinn, who had retired, Deputy Director Joe Profiri. (Doc. 6 at 2, footnote 1).
For the reasons set forth below, it is further 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.
II. STATE COURT PROCEEDINGS
A. Petitioner's Convictions and Sentences
As recounted in the Court's August 4, 2022, Order in Johnson v. State of Arizona, et al., CV-22-08115-PCT-DLR (DMF) (Doc. 6 at 2), dismissing Petitioner's previous habeas proceedings without prejudice for failure to exhaust, “Petitioner pleaded guilty in Mohave County Superior Court, case #CR2020-000555, to one count each of failing to submit a notice of a change of address as a sex offender and possession of a dangerous drug and was sentenced to probation.” Further, “[o]n July 13, 2021, the [s]tate filed a petition to revoke probation.” (Id.) Petitioner was represented by counsel during his probation revocation proceedings. (Doc. 11-1 at 4)
Petitioner admitted to violating his probation, waived his right to a trial, and pleaded guilty. (Id. at 4-7) On September 20, 2021, the superior court revoked Petitioner's probation and sentenced him to: a slightly aggravated sentence of three years' imprisonment for failure to comply with sex offender registration requirements, a class 4 felony, with 151 days of presentence-incarceration credit; and a mitigated sentenced of one year in prison for possession of dangerous drugs (methamphetamine), a class 4 felony, with no presentence-incarceration credit, to be followed by six months of community supervision. (Id.) On the same day as Petitioner's sentencing, he received a notice of rights after sentencing in the superior court. (Id. at 9-10) The notice, which Petitioner signed, stated that Petitioner had 90 days after the oral pronouncement of sentence to file a notice of post-conviction relief (“PCR”). (Id.)
B. PCR Proceedings in the Superior Court
Petitioner did not file a PCR notice until February 2 or 3, 2022. (Id. at 15-20) In the notice, Petitioner alleged that: he had received ineffective assistance of Rule 33 counsel; his sentence was not authorized by law or the plea agreement; newly discovered material facts “probably” existed and those facts “probably” would have changed the court's judgment or sentence; and there had been a significant change in the law that, if applicable, would “probably” overturn his judgment or sentence. (Id.) Petitioner alleged that he was raising his claims “within a reasonable time after learning of the claim[s].” (Id.) The PCR notice was devoid of any facts or details supporting the claims. (Id.) In the PCR notice, Petitioner requested appointment of counsel for the PCR proceedings. (Id. at 18)
It is hard to discern if Petitioner signed the notice on February 2, 2023, or February 3, 2022. (Id. at 17-18) The notice was received by the superior court for filing on February 10, 2022. (Id. at 15) The court uses the date Petitioner signed the notice. Melville v. Shinn, 68 F.4th 1154, 1159 (9th Cir. 2023) (PCR filing date is date signed by petitioner). Regardless of whether the filing was February 2, 3, or 10, 2023, ninety days had expired in December 2021, months before the filing.
On February 15, 2022, the superior court dismissed Petitioner's PCR notice as untimely and without appointing counsel for Petitioner. (Id. at 22-23) The superior court's order explained:
On September 20, 2021, pursuant to the terms of a probation violation plea agreement, [Petitioner] was sentenced to prison for four (4) years. Pursuant to Rule 33.4, Arizona Rules of Criminal Procedure, the Notice of PostConviction must be filed no later than 90 [days] after entry of judgment and sentence. [Petitioner] dated his notice 136 days after of [sic] entry of judgment and sentence; consequently, [Petitioner] 's notice is not timely. Further, [Petitioner] fails to allege the untimely filing was without the defendant's fault.(Id.)
Shortly thereafter, Petitioner filed a document arguing that the superior court had prematurely issued a ruling after Petitioner's PCR notice but before the filing of a PCR petition. (Id. at 25-28) On March 2, 2022, the superior court affirmed its prior ruling dismissing the PCR proceedings as untimely. (Id. at 30-31)
In April 2022, Petitioner filed a “Motion To Demonstrate That The Defendant Does Indeed Have A Claim Under Post-Conviction Relief Rule 32.1(a-h),” in which Petitioner asserted that “the Kingman Police Department manipulated the truth of their own report” because Petitioner registered as a sex offender on May 6, 2019, and was booked on May 16, 2019. (Id. at 33-41). In the motion, Petitioner did not address the superior court's untimeliness ruling. (Id.) Attached to the motion were two pages of a September 2019 police report. (Id. at 38-39)
On May 4, 2022, the superior court denied the motion, stating:
The Court has previously denied, on two occasions, [Petitioner] 's Notice of Post-Conviction Relief because the notices were filed untimely. Therefore, to the extent the [Petitioner] 's motion is requesting post-conviction relief, it is untimely. Further, [Petitioner] claims he did not violate the registration laws for a transient because he registered on May 6, 2019, and [Petitioner] claims the date of violation was May 16, 2019. However, the date of violation in this matter, pursuant to the indictment, is between August 7, 2019, and September 4, 2019.(Id. at 43-44)
C. PCR Proceedings in the Arizona Court of Appeals
In March 2022, a filing entitled “Petition For Review And Request For Reversal And Remand To Lower Court Of Mohave County” was filed by Petitioner in the Arizona Court of Appeals. (Id. at 47-49) In the filing, Petitioner asserted that the superior court “will not even accept the Notice for Post[-]Conviction Relief under newly discovered material facts and in reguards [sic] to the United States Constitutional Amendments 5, 8, 14.” (Id. at 47)
On March 21, 2022, the Clerk of the Arizona Court of Appeals notified Petitioner by letter that his petition did not substantially comply with Arizona Rules of Criminal Procedure Rules 32.16(c)(2) and 33.16(c)(2) because Petitioner's filing did not contain: (1) the issues decided by the trial court which Petitioner wished to present for review; (2) material facts for consideration of the issues; and (3) reasons why the petition should be granted. (Id. at 51-52) Petitioner was warned that if a compliant petition for review was not filed within 30 days of the date of the letter, the court of appeals would dismiss the matter. (Id. at 52)
Petitioner thereafter filed a document which the court of appeals treated as a timely, compliant petition for review. (Id. at 54-60, 65-68) In the filing, Petitioner stated that he had filed a PCR notice in the superior court asserting he had obtained newly discovered evidence “that was not provided to the Petitioner Mr. Johnson until the Petitioner was sentenced in the superior court” and that “Petitioner never got that opportunity to demonstrate this material, because the superior court” dismissed the notice “without allowing the Petitioner the opportunity to present the post-conviction relief that goes more into detail and allows the Petitioner to file proof of newly discovered material[.]” (Id. at 56) In the filing, Petitioner referred to the September 2019 police report and asserted that the arresting officer fabricated the offense and “in turn violated the Petitioner's due process rights.” (Id. at 57) Petitioner complained that the superior court not allowing Petitioner to present his argument in PCR proceedings constituted “manifest injustice[.]” (Id.)
On November 2, 2022, the court of appeals granted review, found that the superior court did not abuse its discretion by dismissing Petitioner's PCR notice, and denied relief.(Id. at 65-68) The court of appeals explained that:
On October 21, 2022, the matter had been transferred to the Division Two of the Arizona Court of Appeals in order to “equalize caseloads for the best use of judicial resources.” (Id. at 62-63)
Generally, a defendant must file a notice of post-conviction relief raising “a claim under Rule 33.1(a) within 90 days after the oral pronouncement of sentence.” Ariz. R. Crim. P. 33.4(b)(3)(A). However, the court must excuse an untimely notice filed under this subsection “if the defendant adequately explains why the failure to timely file a notice was not the defendant's fault.” Ariz. R. Crim. P. 33.4(b)(3)(D). For claims under Rule 33.1(b) through (h),
the defendant must file a notice “within a reasonable time after discovering the basis for the claim.” Ariz. R. Crim. P. 33.4(b)(3)(B). “If the notice does not provide sufficient reasons why the defendant did not raise the claim ... in a timely manner, the court may summarily dismiss the notice.” Ariz. R. Crim. P. 33.2(b)(1).
The trial court correctly determined that [Petitioner]'s February 10, 2022 notice was filed more than ninety days after the oral pronouncement of sentence on September 20, 2021. As such, any Rule 33.1(a) claim was untimely, and, although the court would have had to excuse the untimely filing if [Petitioner] established that the untimeliness was not his fault, he failed to do so. See State v. Reed, 252 Ariz. 236, ¶ 11 (App. 2021).
However, the only claim [Petitioner] reasserts on review is one of newly discovered evidence pursuant to Rule 33.1(e). See Ariz. R. Crim. P. 33.16(c)(4) (“A party's failure to raise any issue that could be raised in the petition for review ... constitutes a waiver of appellate review of that issue.”). As to that claim, [Petitioner] needed to file his notice within a reasonable time after its discovery or else provide sufficient reasons why he had not done so. [Petitioner] maintains the newly discovered evidence “was not provided to [him] until [he] was sentenced.” But [Petitioner] failed to file his February 2022 notice for nearly five months after the sentencing. He offers neither any explanation for the delay in the filing of his notice nor any reason why the trial court erred in dismissing it. See Ariz. R. Crim. P. 33.16(c)(2)(D) (petition must include “reasons why the appellate court should grant the petition, including citations to supporting legal authority, if known”); State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) (failure to develop argument waives claim on review). As such, we cannot say the court abused its discretion in dismissing [Petitioner's notice.(Id. at 67-68, ¶¶ 6-8)
Petitioner did not file a motion for reconsideration and did not file a petition for review in the Arizona Supreme Court. (Id. at 70) Petitioner initiated these habeas proceedings after the Arizona Court of Appeals' decision.
III. PETITIONER'S CLAIMS ARE PROCEDURALLY DEFAULTED WITHOUT EXCUSE
In their Limited Answer to the Petition, Respondents argue the claims raised in the Petition are procedurally defaulted without excuse. (Doc. 11 at 6-18) As set forth below, Respondents are correct.
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 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 his 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 his 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 PCR procedural preclusion “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.”).
In Arizona, claims not properly presented to the state courts are generally barred from federal review because an attempt to return to state court to present them is futile unless the claims fit in a narrow category of claims for which a successive petition is permitted. See Ariz. R. Crim. P. 33.4(b)(3)(A) (claims filed pursuant to Rule 33.1(a) must be filed within 90 days after oral pronouncement of sentence); Ariz. R. Crim. P. 33.1(b)-(h), 33.2(b)(1), 33.4(b)(3)(B) (allowing a defendant to assert claims identified in Rule 33.1(b) through (h) “within a reasonable time after discovering the basis for the claim.”) Arizona Rule of Criminal Procedure 33.1(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. 33.1(b)-(h); Ariz. R. Crim. P. 33.16 (petition for review must be filed “[n]o later than 30 days after entry of the trial court's final decision on a petition or a motion for rehearing, or the dismissal of a notice”); see also rules Ariz. R. Crim. P. 32.4(b)(3) (time bar); Ariz. R. Crim. P. 32.1(b) through (h) and 32.2(b) (permitting successive PCR proceedings on certain grounds and specified circumstances); 32.16(a)(1) (petition for review must be filed within thirty days of trial court's decision).
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 his state remedies. In Arizona, “ineffective assistance of counsel claims should be raised in post-conviction relief proceedings pursuant to rule 32, Arizona Rules of Criminal Procedure.” Lambright v. Stewart, 241 F.3d 1201, 1203 (9th Cir. 2001) (quoting State v. Atwood, 171 Ariz. 576 (1992)) (finding that failure to raise IAC claims on direct appeal did not bar federal habeas review).
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. Petitioner's Habeas Claims Are Procedurally Defaulted
Petitioner's habeas claims are procedurally defaulted. The Arizona Court of Appeals affirmed the superior court's ruling that Petitioner's PCR proceedings were subject to an express procedural bar in that Petitioner's PCR notice was untimely filed. (Doc. 11-1 at 65-68) The same procedural bar applies such that Petitioner could not return to the state courts to properly exhaust his claims.
The Court need not reach Respondents' other arguments regarding Petitioner's failure to properly exhaust his claims.
C. Petitioner Fails to Establish Cause and Prejudice or Miscarriage of Justice/Actual Innocence to Excuse the Procedural Default
To excuse the procedural default of his claims, 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
As discussed above, 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). Petitioner does not argue, and the record does not support, a finding of cause to excuse the procedural default. Thus, the Court need not reach prejudice.
2. Miscarriage of Justice/Actual Innocence
To meet 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 does not include with his Petition “new reliable evidence” that would likely prevent a jury from convicting him. Schlup, 513 U.S. at 324. Further, as recounted in the Court's August 4, 2022, Order in Johnson v. State of Arizona, et al., CV-22-08115-PCT-DLR (DMF) (Doc. 6 at 2), “Petitioner pleaded guilty in Mohave County Superior Court, case #CR2020-000555, to one count each of failing to submit a notice of a change of address as a sex offender and possession of a dangerous drug[.]” In addition, Petitioner admitted to probation violation, resulting in the sentence and PCR proceedings preceding Petitioner's current habeas action.
In short, Petitioner has not met his burden to establish actual innocence that would excuse his procedural default.
IV. CONCLUSION
Petitioner's claims are procedurally defaulted without excuse. Therefore, it is recommended that the Petition be dismissed with prejudice and that this matter be terminated. Given the unexcused procedural default of all of Petitioner's claims, Respondents' argument that Petitioner's IAC claim fails on the merits is not addressed.
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. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
For the reasons set forth above, IT IS THEREFORE RECOMMENDED that current Arizona Department of Corrections, Rehabilitation and Reentry Director Ryan Thornell and current Arizona Attorney General Kristin K. Mayes be substituted as Respondents.
IT IS FURTHER RECOMMENDED that Hubert Livingston Johnson's Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (NonDeath Penalty) (Doc. 1) be dismissed with prejudice and that this matter be terminated.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability be denied.
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.