Opinion
CV-22-01678-PHX-DWL (DMF)
08-28-2023
Ronald DeWayne McDonald, Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
HONORABLE DEBORAH M. FINE UNITED STATES MAGISTRATE JUDGE.
TO THE HONORABLE DOMINIC W. LANZA, UNITED STATES DISTRICT 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. 5 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-22-01678-PHX-DWL (DMF).
Petitioner is confined in the Arizona State Prison Complex in San Luis, Arizona and filed a pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (“Petition”) on September 26, 2022. (Doc. 1) Petitioner refers to himself as “Ronald DeWayne McDonald” in his Petition (Doc. 1 at 1, 25; Doc. 1-1 at 1), but refers to himself as “Roland D. McDonald” or “Roland McDonald” in his reply in support of the Petition (Doc. 13 at 1). The state court record refers to Petitioner as “Roland Dewayne McDonald.” (Doc. 10-1; see also Doc. 1-1 at 3, 50; Doc. 1-2 at 13).
The Petition was docketed by the Clerk of Court on October 3, 2022. (Doc. 1) The Petition contains a declaration by Petitioner that he placed the Petition in the prison mailing system on September 26, 2022. (Id. at 25) This Report and Recommendation uses September 26, 2022, as the operative filing date. 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.”); Melville v. Shinn, 68 F.4th 1154, 1159 (9th Cir. 2023) (affirming that the prison mailbox rule “applies to pro se federal habeas petitions” on the date a petitioner signs, dates, and attested the petition was placed in the prison mailing system).
On December 20, 2022, the Court ordered Respondents to answer the Petition. (Doc. 5 at 3-4) On February 23, 2022, Respondents filed their Limited Answer to the Petition. (Doc. 10) On April 24, 2023, Petitioner filed a reply. (Doc. 13) On August 24, 2023, Respondents supplemented the record in these proceedings as ordered by this Court. (Docs. 14, 15)
It is recommended that Petitioner's name be corrected on this Court's docket to Roland Dewayne McDonald. It is further recommended, for the reasons set forth below, that these proceedings be dismissed and denied with prejudice, that Petitioner's request for an evidentiary hearing be denied, that the Clerk of Court be directed to terminate this matter, and that a certificate of appealability be denied.
I.BACKGROUND
A. Petitioner's Charges, Convictions, and Sentences
In its memorandum opinion affirming Petitioner's convictions and sentences in Maricopa County Superior Court case number CR2016-144817-001, the Arizona Court of Appeals summarized the events and procedural history leading to Petitioner's convictions and sentences:
[Petitioner] was convicted of attempted second degree murder, a class 2 dangerous felony, aggravated assault, a class 3 dangerous felony, and misconduct involving weapons, a class 4 dangerous felony. The convictions relate to a shooting on August 22, 2016, when [Petitioner] approached D.F. and R.G. in a convenience store parking lot. [Petitioner] pulled a small semiautomatic weapon from his pocket, pointed it at D.F., and fired multiple times, leaving a bullet permanently lodged in D.F.'s back. The three individuals knew each other previously, and [Petitioner] and D.F. had recently experienced a “falling out.” Two additional witnesses were present near the shooting and testified at trial: W.K., a “sign spinner,”1 who was working nearby, and J.S., a friend of [Petitioner].
D.F., R.G., and J.S. each identified “Cash” or “Cash Flow” as the shooter. W.K. testified that an African-American man riding a distinctive red bike
was the shooter.2 Police later determined “Cash Flow” to be [Petitioner], based on other, unrelated investigations. Before trial, [Petitioner] moved for and the superior court granted an unopposed motion in limine to exclude testimony regarding these other police investigations. At trial, however, [Petitioner's] counsel elicited testimony from a police officer during cross-examination that briefly referenced [Petitioner's] involvement in the other investigations. [Petitioner] moved for a mistrial, which the court denied. The court did, however, strike the testimony and told the jury that the testimony was stricken and that both the question and the answer are “to be disregarded entirely by the jury.”
The jury found [Petitioner] guilty on all three counts, resulting in a twenty-year prison sentence.
1 A “sign spinner” is a person who advertises for a business by standing outside a business spinning a large sign to attract the attention of passersby. See generally, City of Scottsdale v. State, 237 Ariz. 467 (App. 2015).
2 [Petitioner] is African-American and known to ride a red bike.(Doc. 10-1 at 4-5)
The state court's stated facts are entitled to the presumption of correctness. See 28 U.S.C. § 2254(e)(1); Purkett v. Elem, 514 U.S. 765, 769 (1995) (per curiam) (“In habeas proceedings in federal court, the factual findings of state courts are presumed to be correct.”); Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012) (rejecting argument that the statement of facts in an Arizona Supreme Court opinion should not be afforded the presumption of correctness). Further, the Petition lists the convictions for the three counts and the longest of the sentences on the three counts as twenty years. (Doc. 1 at 2)
During trial court proceedings in case number CR2016-144817-001, Petitioner was represented by counsel (“trial counsel”). (See id. at 5-6)
While Maricopa County Superior Court case number CR2016-144817-001 proceeded, Petitioner was also prosecuted in a separate Maricopa County Superior Court case, CR2016-144395-001. (Doc. 10-1 at 97)
B. Petitioner's Direct Appeal
Petitioner timely appealed his convictions and sentences in case number CR2016-144817-001. (Doc. 10-1 at 5) Through counsel Stephen Johnson (“appellate counsel”) on April 26, 2018, Petitioner filed an opening brief in the Arizona Court of Appeals, arguing that the trial court erred in failing to grant a mistrial when the police officer at trial referenced other investigations unrelated to case number CR2016-144817-001, in violation of a motion in limine excluding such testimony. (Id. at 9-34) The state filed a response (Id. at 36-69) and Petitioner filed a reply (Id. at 71-73). On October 4, 2018, the court of appeals issued a decision affirming Petitioner's convictions and sentences. (Id. at 3-7) In doing so, the court of appeals determined that the trial court did not abuse its discretion in denying Petitioner's motion for mistrial. (Id. at 5-7)
Through appellate counsel, Petitioner filed a petition for review in the Arizona Supreme Court. (Id. at 75-83) Petitioner raised the same issue in his petition for review in the Arizona Supreme Court as Petitioner raised in the court of appeals. (Id. at 76) On April 30, 2019, the Arizona Supreme Court denied Petitioner's petition for review without discussion. (Id. at 85)
On May 23, 2019, the Arizona Court of Appeals issued its mandate. (Id. at 87)
C. Petitioner's Post-Conviction Relief (“PCR”) Proceedings
On May 29, 2019, Petitioner filed a pro se PCR notice in the superior court in case number CR2016-144817-001, in which he requested that the superior court appoint counsel to represent Petitioner in the PCR proceedings. (Id. at 89-91) On March 4, 2020, Petitioner filed his PCR petition through his counsel Christopher Stavris (“PCR counsel”). (Id. at 93-102) In his PCR petition, consistent with his PCR notice, Petitioner asserted that trial counsel provided ineffective assistance of counsel. (Id. at 90, 98-101) In the PCR petition, Petitioner argued that trial counsel was ineffective for failing to review the evidence and the state's plea offer with Petitioner, including for failing to provide Petitioner with all disclosure in the case prior to the settlement conference and prior to Petitioner rejecting the state's plea offer. (Id. at 98-101)
The prison mailbox rule applies to Petitioner's PCR notice. Melville, 68 F.4th at 1159 (“‘We assume that [Melville] ‘turned his petition over to prison authorities on the same day he signed it and apply the mailbox rule.' Butler v. Long, 752 F.3d 1177, 1178 n.1 (9th Cir. 2014) (per curiam).”). Petitioner's PCR notice was signed and notarized on May 29, 2019. (Doc. 10-1 at 91)
The state filed a response (Id. at 104-17), and Petitioner filed a reply (Id. at 119-21). On February 9, 2021, the superior court dismissed Petitioner's PCR petition on the superior court record and without a hearing, determining that Petitioner had not established that his trial counsel was ineffective pursuant to Strickland v. Washington, 446 U.S. 668 (1984). (Id. at 123-25) The superior court found that Petitioner's PCR petition “provide[d] no evidence that [Petitioner] would have accepted the plea even if his lawyer had done what he claim[ed] she failed to so[;]” that Petitioner had filed a pro se motion for disclosure while represented by counsel and was informed that his prior counsel had provided Petitioner with all discovery in counsel's possession; that Petitioner's counsel represented to the trial court that Petitioner refused to communicate with counsel; that the trial counsel and the prosecutor thoroughly explained “the matters a defendant needs to understand to make an informed decision” regarding a plea offer; and that the record established that Petitioner maintained he was not guilty, would not take a plea offer, and wished to proceed to trial. (Id.) The superior court summed up that Petitioner “cannot now obtain relief for his unilateral decision to rebuff his attorney's efforts to inform him of relevant matters and to counsel and guide him.” (Id. at 125)
The filing date is the operative date of the superior court's ruling. See Ariz. R. Crim. P. 1.10(c) (see former Ariz. R. Crim. P. 1.3(c)).
Petitioner filed a petition for review in the Arizona Court of Appeals, which was docketed by the clerk of the court of appeals on March 25, 2021. (Doc. 15 at 6-16) In his petition for review, Petitioner raised the same claim as previously raised in his PCR petition. (Id. at 11-16) On August 31, 2021, the court of appeals granted review of Petitioner's petition for review but denied relief, finding that Petitioner had not established that the superior court abused its discretion by denying Petitioner's PCR petition. (Doc. 10-1 at 129-30)
Petitioner filed a second petition for review in the court of appeals, on which the court of appeals took no action. (Doc. 15 at 18-46; Doc. 10-1 at 127)
Petitioner did not file a petition for review in the Arizona Supreme Court. (Id. at 132) On October 14, 2021, the Arizona Court of Appeals issued its mandate. (Id.)
II.PETITIONER'S HABEAS CLAIM
Petitioner raises one ground for relief in his September 26, 2022, Petition:
Petitioner McDonald's 14th Amendment Due Process U.S. Constitutional Rights were violated during his Rule-32 Post Conviction Proceeding by the State Courts where Petitioner raised a State vs. Donald colorable claim against trial counsel “Kerri Droban” and the Honorable Margaret Mahoney dissmissed [sic] Petitioner's Rule-32 P.C.R. proceeding without ever hearing from trial counsel Kerri Droban by Affidavit or Live Evidentiary Hearing Testimony denying the 6th Amend. I.A.C.(Doc. 1 at 6-22) Petitioner asserts that PCR counsel raised a claim of ineffective assistance of trial counsel in Petitioner's PCR petition, regarding trial counsel's alleged failure to review the evidence and plea offer with Petitioner and failure to provide Petitioner with all disclosure in his case prior to the settlement conference and prior to Petitioner rejecting the state's plea offer. (Id. at 7-8) Petitioner asserts that the superior court should have held an evidentiary hearing during Petitioner's PCR proceedings or required an affidavit from Petitioner's trial counsel regarding Petitioner's ineffective assistance of counsel (“IAC”) claim. (Id. at 20-21) In his Petition, Petitioner also requests an evidentiary hearing, asserting that he presented a colorable claim to the superior court that would have changed the outcome of his case. (Id. at 21-22, 25)
In their Limited Answer to the Petition, Respondents assert that the Petition was untimely filed based on the date the Arizona Court of Appeals denied relief on Petitioner's PCR petition for review. (Doc. 10 at 7-9) Nevertheless, recognizing that the issue of when tolling ceases was unresolved in the Ninth Circuit at the time of the filing of the Limited Answer, Respondents concede that if Petitioner's PCR proceedings concluded upon the court of appeals' issuance of a mandate, the Petition was timely filed. (Id. at 8, footnote 10) Respondents also assert that Petitioner's sole ground for relief is non-cognizable and procedurally defaulted without excuse. (Id. at 9-17)
In reply, Petitioner asserts that he is entitled to equitable tolling and that his Petition is timely. (Doc. 13) Petitioner argues that his PCR proceedings concluded on October 14, 2021, upon the Arizona Court of Appeals' issuance of a mandate, making his September 26, 2022, Petition timely filed. (Id. at 3-4)
III.TIMELINESS
A threshold issue for the Court is whether these habeas proceedings are time-barred by the statute of limitations. The time-bar issue must be resolved before considering other procedural issues or the merits of any habeas claim. See White v. Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2022).
As discussed below, the Petition was timely filed.
A. Starting Date of AEDPA's One Year Limitations Period
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs Petitioner's habeas proceedings because he filed his Petition after April 24, 1996, the effective date of AEDPA. Patterson v. Stewart, 251 F.3d 1243 (9th Cir. 2001) (citing Smith v. Robbins, 528 U.S. 259, 267 n.3 (2000)). For AEDPA statute of limitations purposes, this Report and Recommendation uses September 26, 2022, the date Petitioner placed his Petition in prison mail, as the applicable filing date for the Petition. Respondents recognize September 26, 2022, as the proper filing date of the Petition. (Doc. 10 at 8)
See footnote 2, supra.
Under AEDPA, there are four possible starting dates for the beginning of its one-year statute of limitations period:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1). The latest of the applicable possible starting dates is the operative start date. Id.
Because the Petition's claim arises from a final judgment and sentence, AEDPA's one-year statute of limitations start date is determined by 28 U.S.C. § 2244(d)(1)(A) unless a later start date applies under 28 U.S.C. § 2244(d)(1)(B), (C), or (D). Here, the record does not present any basis for a later start date pursuant to 28 U.S.C. § 2244(d)(1)(B), (C), or (D). Under 28 U.S.C. § 2244(d)(1)(A), AEDPA's one-year statute of limitations period runs from when the judgment and sentence became “final by the conclusion of direct review or the expiration of the time for seeking such review.”
Petitioner commenced a timely direct appeal of his convictions and sentences in case number CR2016-144817-001. (Doc.10-1 at 5) On October 4, 2018, the court of appeals affirmed Petitioner's convictions and sentences. (Id. at 3-7) On April 30, 2019, the Arizona Supreme Court denied Petitioner's petition for review. (Id. at 85) Following the Arizona Supreme Court's order, Petitioner had 90 days to file a petition for a writ of certiorari in the United States Supreme Court. See Harris v. Carter, 515 F.3d 1051, 1052-53 n.1 (9th Cir. 2008) (judgment becomes final when period for filing petition for certiorari in U.S. Supreme Court expires, i.e., 90 days after state supreme court issues opinion or denies review). Petitioner had until July 29, 2019, to file a petition for a writ of certiorari in the United States Supreme Court, but the record does not reflect that Petitioner did so. Consequently, Petitioner's convictions became final on July 29, 2019, and AEDPA's limitations period began to run on July 30, 2019, unless AEDPA's limitations period was statutorily tolled before that time by the timely and proper filing of a PCR proceeding relating to case CR2016-144817-001.
B. Statutory Tolling
AEDPA expressly provides for statutory tolling of the limitations period when a “properly filed application for State post-conviction or other collateral relief with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). A collateral review petition is “properly filed” when its delivery and acceptance are in compliance with state rules governing filings. Artuz v. Bennett, 531 U.S. 4, 8 (2000). This includes compliance with filing deadlines. A state post-conviction relief petition not filed within the state's required time limit is not “properly filed,” and the petitioner is not entitled to statutory tolling during those proceedings. Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (“When a post-conviction petition is untimely under state law, ‘that [is] the end of the matter' for purposes of § 2244(d)(2).”); Allen v. Siebert, 552 U.S. 3, 6 (2007) (finding that inmate's untimely state post-conviction petition was not “properly filed” under AEDPA's tolling provision, and reiterating its holding in Pace, 544 U.S. at 414). Once the statute of limitations has run, subsequent collateral review petitions do not “restart” the clock. Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003).
Here, AEDPA's one-year limitations period was already statutorily tolled before July 30, 2019, because in case CR2016-144817-001, Petitioner filed a timely and proper PCR notice on May 29, 2019. (Doc. 10-1 at 89-91) The parties agree that AEDPA's statute of limitations period was tolled at its start date, but Respondent and Petitioner disagree as to when PCR proceedings ceased pending for statutory tolling purposes. (Doc. 10 at 8; Doc. 13 at 3-4)
See footnote 5, supra.
In their procedural history, Respondents erroneously use the date the Petition was received by and filed by the clerk of this court, but Respondents use the correct date of September 26, 2022, for the filing date of the Petition in their timeliness analysis. (Doc. 10 at 5, 8)
After Petitioner filed his reply in support of the Petition, in Melville v. Shinn, 68 F.4th 1154, 1159-61 (9th Cir. 2023), the Ninth Circuit decided when a PCR petition ceases to be pending for statutory tolling. The Ninth Circuit's decision in Melville rejected the argument that a petition ceases to be pending on the issuance of the Arizona Court of Appeals' mandate and instead held that a PCR petition ceases to be pending “when the time for [Petitioner] to seek further relief in the state courts expired.” Id. at 1156; see also Id. at 1160-1161. The Ninth Circuit concluded that “a PCR application is pending as long as a state avenue for relief remains open, whether or not a petitioner takes advantage of it.” Id. at 1156. Thus, whether the state collateral review process is pending “requires looking to the relevant state's law and procedural rules.” Id. at 1160.
The Ninth Circuit issued its decision in Melville on May 23, 2023. Respondents filed their Limited Answer on February 23, 2023 (Doc. 10), and Petitioner filed his reply on April 24, 2023 (Doc. 13).
Following the Arizona Court of Appeals' August 31, 2021, decision denying Petitioner's petition for review, Petitioner had 30 days to file a petition for review in the Arizona Supreme Court, Ariz. R. Crim. P. 31.21, or 15 days to file a motion for reconsideration. See Ariz. R. Crim. P. 31.20. Because Petitioner did not file a motion for reconsideration or a petition for review in the Arizona Supreme Court, Petitioner's PCR petition ceased pending on September 30, 2021, when the time for Petitioner to file a petition for review in the Arizona Supreme Court expired.
Petitioner was not entitled to five additional days for service of the court of appeals' decision for filing his petition for review to the Arizona Supreme Court. Effective January 1, 2018, Ariz. R. Crim. P. 1.3(a)(5) was amended to exclude “the clerk's distribution of notices, minute entries, or other court-generated documents” from the five-day extension for service by mailing. See former Ariz. R. Crim. P. 1.3(a)(5) (2018) (now Ariz. R. Crim. P. 1.10(a)(5) (2023)); State v. Mason, 2021 WL 6143054, at *4 (Ariz.Ct.App. Dec. 30, 2021) (excluding minute entries setting forth verdicts from five-day extension); Murphy v. Arizona, 2021 WL 6339047, at *4 n.2 (D. Ariz. Dec. 3, 2021) (excluding court of appeals' order denying PCR relief from five-day extension).
Petitioner's PCR petition did not cease pending upon the court of appeals' issuance of a mandate on October 14, 2021, because the court of appeals' mandate did not extend the time for Petitioner to file a petition for review or motion for reconsideration. See Melville, 68 F.4th at 1160-61.
During the pendency of Petitioner's PCR proceedings through September 30, 2021, AEDPA's one-year limitations period was tolled pursuant to 28 U.S.C. § 2244(d)(2). Petitioner is entitled to statutory tolling through September 30, 2021, the date on which the last state avenue for relief expired. AEDPA's one-year statute of limitations period commenced to run on October 1, 2021, and the period for Petitioner to file a habeas petition expired on September 30, 2022. See Patterson v. Stewart, 251 F.3d 1243, 1247 (9th Cir. 2001) (“Excluding the day on which [the prisoner's] petition was denied by the Supreme Court, as required by Rule 6(a)'s ‘anniversary method,' [AEDPA's] one-year grace period began to run on June 20, 1997 and expired one year later, on June 19, 1998…”). Petitioner filed these habeas proceedings on September 26, 2022, prior to the expiration of AEDPA's statute of limitations.
C. The Petition Was Timely Filed
Accordingly, these proceedings were timely filed, and the Court proceeds to Respondents' arguments regarding procedural default and non-cognizability of the Petition's sole ground for relief.
IV. PROCEDURAL DEFAULT
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 proceedings. 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 “Rule 32.2(a)(3) determinations are independent of federal law because they do not depend upon a federal constitutional ruling on the merits”); Johnson v. Mississippi, 486 U.S. 578, 587 (1988) (“adequate” grounds exist when a state strictly or regularly follows its procedural rule).
Moreover, if a state court applies a procedural bar, but goes on to alternatively address the merits of the federal claim, the claim is still barred from federal review. See Harris, 489 U.S. at 264 n.10 (“[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law.... In this way, a state court may reach a federal question without sacrificing its interests in finality, federalism, and comity.”) (citations omitted); Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003) (“A state court's application of a procedural rule is not undermined where, as here, the state court simultaneously rejects the merits of the claim.”) (citing Harris, 489 U.S. at 264 n.10).
Second, the claim may be procedurally defaulted if the petitioner failed to present the claim in a necessary state court and “the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.” Coleman, 501 U.S. at 735 n.1; Boerckel, 526 U.S. at 848 (when time for filing state court petition has expired, petitioner's failure to timely present claims to state court results in a procedural default of those claims); Smith v. Baldwin, 510 F.3d 1127, 1138 (9th Cir. 2007) (failure to exhaust claims in state court resulted in procedural default of claims for federal habeas purposes when state's rules for filing petition for post-conviction 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 former rules Ariz. R. Crim. P. 32.2(a) (precluding claims not raised on appeal or in prior petitions for post-conviction relief), 32.4(a) (time bar), 32.1(d)-(h), 32.9(c) (petition for review must be filed within thirty days of trial court's decision); see also current 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).
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.
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 Rule 32 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)).
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. Exhaustion and Procedural Default of Petitioner's Sole Habeas Claim
In the sole ground for relief in the Petition, Petitioner alleges that his Fourteenth Amendment due process rights were violated because the superior court dismissed Petitioner's PCR petition without an evidentiary hearing requiring testimony from trial counsel regarding Petitioner's IAC claim against trial counsel and without even an affidavit from trial counsel regarding the subject of the IAC claim. (Doc. 1 at 6) Although Petitioner raised an IAC claim regarding trial counsel in his PCR petition in the superior court (Doc. 10-1 at 98-101), Petitioner's sole ground for relief in the Petition asserts a Fourteenth Amendment due process claim challenging the superior court's alleged error in dismissing Petitioner's PCR petition (Doc. 1 at 6). Petitioner did not raise the Petition's due process claim to the court of appeals during PCR proceedings, where he was required to raise such. See Swoopes, 196 F.3d at 1010. While Petitioner filed a petition for review in the Arizona Court of Appeals, Petitioner did not raise a due process claim that the superior court erred in dismissing Petitioner's PCR petition without an evidentiary hearing or an affidavit from trial counsel. Petitioner raised only a claim of IAC in his petition for review in the court of appeals, which was the same claim raised in the superior court. (See Doc. 15 at 6-16) Accordingly, Petitioner's sole ground for relief in the Petition was not properly exhausted for purposes of federal habeas review.
Petitioner's sole ground for relief is unexhausted and implicitly procedurally defaulted because it is too late under Arizona procedure for Petitioner to return to state court to assert such a claim. Where Petitioner failed to raise an issue that could have been raised in his petition for review in the court of appeals, Petitioner has waived appellate review of that issue. See Ariz. R. Crim. P. 32.16(a)(4). Petitioner does not argue that he can return to state court to assert his sole ground for relief in the Petition, nor does the record support such a finding. To the contrary, Petitioner asserts that he “exhausted ‘All' of his State Remedies in the State Courts as such[.]” (Doc. 1 at 14)
Accordingly, Petitioner's sole ground for relief is procedurally defaulted, and it is too late for Petitioner to return to state court to assert such a claim.
C. Petitioner Fails to Establish Cause and Prejudice or Miscarriage of Justice/Actual Innocence to Excuse the Procedural Default of Petitioner's Sole Habeas Claim
To excuse the procedural default of the Petition's sole ground for relief, Petitioner bears the burden of establishing either: (1) both cause and actual prejudice; or (2) a miscarriage of justice/actual innocence. Coleman, 501 U.S. at 750.
1. Cause and Prejudice Not Established
In his Petition and reply in support of the Petition, Petitioner does not assert that any “objective factor external to the defense” prevented him from asserting the Petition's sole ground for relief in state court. Coleman, 501 U.S. at 753. Instead, Petitioner asserts in the Petition that he exhausted all of his state court remedies. (Doc. 1 at 14) Despite Petitioner filing a petition for review in the court of appeals, Petitioner failed to raise a claim that the superior court had erred in dismissing his PCR petition. (Doc. 15 at 6-16) Moreover, Petitioner has not established prejudice, as he has not shown that any alleged error at trial “worked to his actual and substantial disadvantage[.]” Murray, 477 U.S. at 494. Although Petitioner asserts that he would have accepted a plea deal offered by the state if his trial counsel had provided Petitioner with certain discovery materials prior to Petitioner's settlement conference (Doc. 1 at 24), Petitioner's sole ground for relief in the Petition alleges error in Petitioner's PCR proceedings, not error in Petitioner's trial court proceedings. Moreover, Petitioner's assertion that he would have accepted the state's plea offer does not sufficiently establish actual prejudice. Murray, 477 U.S. at 494; see also Lafler v. Cooper, 566 U.S. 156, 164 (2012) (where counsel is alleged to provide deficient advice, petitioner must show reasonable probability that he would have accepted a plea to establish prejudice). Petitioner does not support his assertion with evidence that he would have accepted the state's plea offer. As the superior court found in its order dismissing Petitioner's PCR petition, the record established that Petitioner “repeatedly insisted he was not guilty and was adamant that he wanted to go to trial and that he would not take a plea” as well as that Petitioner made a “unilateral decision to rebuff his attorney's efforts to inform him of relevant matters and to counsel and guide him.” (Id. at 125)
Accordingly, Petitioner has not established cause and prejudice to excuse his procedural default of his sole ground for relief in the Petition.
2. Miscarriage of Justice/Actual Innocence Standard Not Met
As set forth above, to meet the miscarriage of justice/actual innocence exception to procedural default, Petitioner must “support his allegations of constitutional error with new reliable evidence[,]” Schlup, 513 U.S. at 324, and “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” McQuiggin, 569 U.S. at 399 (quoting Schlup, 513 U.S. at 327). Petitioner fails to meet this burden. Indeed, Petitioner does not argue actual innocence of Petitioner's underlying conviction. Further, Petitioner does not present “new reliable evidence[,]” Schlup, 513 U.S. at 324, that would likely prevent a jury from convicting Petitioner. See McQuiggin, 569 U.S. at 399. Petitioner attached to his Petition: the transcript from his April 7, 2017, settlement conference in Maricopa County Superior Court case numbers CR2016-144817-001 and CR2016-144395-001 (Doc. 1-1 at 3-24); his April 26, 2018, opening brief challenging his convictions and sentences in case number CR2016-144817-001 in the court of appeals (Id. at 26-48); the court of appeals' October 4, 2018, decision affirming Petitioner's convictions and sentences (Id. at 50-54); the Arizona Supreme Court's April 30, 2019, denial of Petitioner's petition for review (Id. at 56); Petitioner's May 29, 2019, PCR notice (Id. at 58-60); Petitioner's March 4, 2020, PCR petition (Doc. 1-2 at 2-11); the superior court's February 9, 2021, order dismissing Petitioner's PCR petition (Id. at 13-15); Petitioner's March 2021 PCR petition for review in the court of appeals (Id. at 17-27); the court of appeals' April 23, 2021, order reinstating review (Id. at 29); the court of appeals' June 15, 2021, order regarding a procedurally inappropriate second petition for review filed by Petitioner (Id. at 31); the court of appeals' August 31, 2021, decision denying relief on Petitioner's PCR petition for review (Id. at 33-34); the court of appeals' October 14, 2021, mandate in Petitioner's PCR proceedings (Id. at 36-37); the state's July 7, 2017, sentencing memorandum in case numbers CR2016-144817-001 and CR2016-144395-001 (Id. at 39-40); Petitioner's December 2016 motion to change counsel in case numbers 2016-144817-001 and CR2016-144395-001 (Id. at 42-44); Petitioner's May 2017 “Motion Seeking Full Disclosure” in the superior court (Id. at 46-51); a February 2017 inmate legal request (Id. at 53-55); and an April 2017 motion to change counsel (Id. at 57-61).
Petitioner does not challenge his conviction(s) and sentence(s) in Maricopa County Superior Court case number CR2016-144395-001 in these proceedings. (See Doc. 1 at 1)
The legal documents attached to the Petition are not new reliable evidence that would likely prevent a jury from convicting Petitioner. Petitioner does not argue, nor is it apparent upon review, that these attachments show that it is “more likely than not that no reasonable juror would have convicted him” of the offenses underlying the Petition. McQuiggin, 569 U.S. at 399. Indeed, in support of Petitioner's claim, Petitioner asserts that he would have accepted a plea offer and admitted guilt.
Accordingly, for the reasons discussed above, Petitioner's sole ground for relief is procedurally defaulted without excuse.
V.PETITIONER'S SOLE GROUND FOR RELIEF IS NON-COGNIZABLE
Respondents argue that the Petition's sole ground for relief is not a cognizable claim in these federal habeas proceedings. (Doc. 10 at 9-10) As discussed below, Respondents are correct.
This Court may only consider a habeas petition if the petitioner alleges that he “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A petitioner cannot “transform a state law issue into a federal one by merely asserting a violation of due process.” Poland v. Stewart, 169 F.3d 573, 584 (9th Cir. 1998). Moreover, a petitioner cannot assert an error in state post-conviction proceedings as a proper ground for habeas relief because such a claim does not challenge the petitioner's detention as a violation of the Constitution, a federal statute, or a treaty. Franzen v. Brinkman, 877 F.2d 26 (9th Cir. 1989) (“[A] petition alleging errors in the state post-conviction review process is not addressable through habeas corpus proceedings.”); see also Cooper v. Neven, 641 F.3d 322, 331 (9th Cir. 2011) (finding non-cognizable the petitioner's alleged Fifth and Fourteenth Amendment due process violation stemming from the state trial court's failure to conduct an in camera inspection of the prosecutor's trial file during the post-conviction evidentiary hearing).
In his sole ground for relief in the Petition, Petitioner asserts a violation of his Fourteenth Amendment due process rights during his state PCR proceedings. (Doc. 1 at 6) Petitioner asserts that the state court judge dismissed his PCR proceedings without hearing testimony or an affidavit from Petitioner's trial counsel regarding Petitioner's IAC claim against trial counsel. (Id.) Petitioner cannot transform his sole ground for relief in the Petition asserting error in a state court PCR proceeding into a federal claim by citing the Fourteenth Amendment due process clause. Poland, 169 F.3d at 584. Further, Petitioner's sole ground for relief in the Petition asserts an error in state post-conviction proceedings and does not assert that Petitioner's “detention violates the constitution, a federal statute, or a treaty.” Franzen, 877 F.2d at 26. Petitioner's sole ground for relief is not cognizable on federal habeas review.
V.EVIDENTIARY HEARING
Petitioner requests that this Court conduct an evidentiary hearing on his sole ground for relief in the Petition, arguing he is entitled to such because he presented a colorable claim of IAC to the superior court. (Doc. 1 at 21-22, 25)
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). Insofar as an evidentiary hearing on claims that were adjudicated on the merits in state court, “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Pinholster, 563 U.S. at 181; see also Gulbrandson v. Ryan, 738 F.3d 976, 993 n.6 (9th Cir. 2013) (noting that the holding of Pinholster is also applicable to § 2254(d)(2) claims). Because review under Section 2254(d)(1) “requires an examination of the state-court decision at the time it was made[, . . .] the record under review is limited to the record in existence at that same time i.e., the record before the state court.” Id. at 182. Such a limitation “ensures that the ‘state trial on the merits' is the ‘main event, so to speak, rather than a tryout on the road for what will later be the determinative federal habeas hearing.'” Shoop v. Twyford, 396 U.S.__,__, 2022 WL 2203347, at *5 (2022) (slip op., at 6) (quoting Wainwright v. Sykes, 433 U.S. 72, 90 (1977) (internal quotation marks omitted)).
Further, Title 28, section 2254(e)(2) of the United States Code “restricts the discretion of federal habeas courts to consider new evidence when deciding claims that were not adjudicated on the merits in state court.” Cullen v. Pinholster, 563 U.S. 170, 186 (2011) (citing Williams v. Taylor, 529 U.S. 420, 427-29 (2000)). Section 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 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); see also Shinn v. Martinez Ramirez, 596 U.S., 142 S.Ct. 1718, 1738 (2022) (“[W]hen a federal habeas court convenes an evidentiary hearing for any purpose, or otherwise admits or reviews new evidence for any purpose, it may not consider that evidence on the merits of a negligent prisoner's defaulted claim unless the exceptions in § 2254(e)(2) are satisfied.”).
Petitioner is not entitled to an evidentiary hearing. First, even if Petitioner had raised a claim which was adjudicated on the merits in state court, this Court would be limited to the record before the state court. Further, Petitioner has not demonstrated that his procedurally defaulted claim meets the requirements of 28 U.S.C. § 2254(e)(2), as he does not allege a “new rule of constitutional law” or present facts “that could not have been previously discovered through the exercise of due diligence[.]” 28 U.S.C. § 2254(e)(2)(A)(i)-(ii). Further, Petitioner has not shown that the facts underlying the claim would establish by clear and convincing evidence that no reasonable fact-finder would find Petitioner guilty of the convictions underlying Petitioner's habeas claim. See 28 U.S.C. § 2254(e)(2)(B).
Accordingly, an evidentiary hearing on the Petition's sole ground for relief is not appropriate.
VI.CONCLUSION
The state court record refers to Petitioner as Roland Dewayne McDonald, and the Clerk of Court should be directed to reflect this name correction for Petitioner.
Further, for the reasons set forth above, the September 26, 2022, Petition which initiated this matter was timely filed, but Petitioner procedurally defaulted his sole ground for relief in the Petition without excuse. Further, the Petition's sole ground for relief is a non-cognizable claim. An evidentiary hearing on Petitioner's sole ground for relief is unnecessary and inappropriate. Therefore, it is recommended that the Petition be dismissed and denied with prejudice without an evidentiary hearing and that the Clerk of Court be directed to terminate this matter.
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, and because Petitioner has not “made a substantial showing of the denial of a constitutional right[.]” Slack v. McDaniel, 529 U.S. 473, 484 (2000); 28 U.S.C. § 2253.
Accordingly, IT IS THEREFORE RECOMMENDED that the Clerk of Court be directed to amend Petitioner's name in this matter to Roland Dewayne McDonald.
IT IS FURTHER RECOMMENDED that the Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 1) be dismissed and denied with prejudice without an evidentiary hearing and that the Clerk of Court be directed to terminate this matter.
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.