Offutt v. Shinn

Full title: Jeremy Offutt, Petitioner, v. David Shinn, et al., Respondents.

Court: United States District Court, District of Arizona

Date published: Jun 2, 2021

CV-20-08099-PCT-GMS (DMF) (D. Ariz. Jun. 2, 2021)

Opinion

CV-20-08099-PCT-GMS (DMF)

06-02-2021

Jeremy Offutt, Petitioner, v. David Shinn, et al., Respondents.

Honorable Deborah M. Fine United States Magistrate Judge

HONORABLE G. MURRAY SNOW, CHIEF UNITED STATES DISTRICT JUDGE:

REPORT AND RECOMMENDATION

Honorable Deborah M. Fine United States Magistrate Judge

This matter is on referral to the undersigned United States Magistrate Judge pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a report and recommendation. (Doc. 6 at 5) On April 14, 2020, Petitioner Jeremy Offutt (“Petitioner”) signed a pro per “Notice of Federal Habeas Corpus Petition” which was filed by the Clerk of Court on April 24, 2020. (Doc. 1)¹ The Court construed the Notice as a Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254, dismissed the Petition without prejudice for failure to use a court-approved form, and granted leave to amend within 30 days. (Doc. 3) Petitioner then filed an Amended Petition on May 19, 2020. (Doc. 5 at 13) The Court required an Answer. (Doc. 6 at 4). Respondents filed their Answer on July 20, 2020. (Doc. 9) Petitioner's Reply was filed on October 19, 2020. (Doc. 12)

1 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-20-08099-PCT-GMS (DMF).

For the reasons set forth below, the undersigned recommends that the Amended Petition be denied.

I. BACKGROUND SUMMARY

A. Indictment, Plea, and Sentences

In January 2016, Petitioner was indicted in the Yavapai County Superior Court. (Doc. 9-1 at 3) Count 1 of the two-count indictment charged Sexual Conduct with a Minor, alleging that Petitioner “knowingly engaged in sexual intercourse or oral sexual contact” with the victim “who was under the age of 15 years, in violation of A.R.S. §§ 13-1405 and 13-705, a class 2 felony.” (Id.) Count 2 of the Indictment charged Continuous Sexual Abuse of a Child, and alleged that Petitioner, over a period of three months or more, “engaged in three or more acts of sexual conduct with a minor, sexual assault or molestation of a child with [the victim], a child under 14 years of age, in violation of A.R.S. §§ 13-1417, 131405, 13-1406, 13-1410 and 13-705, a class 2 felony.” (Id.) At his initial appearance on January 14, 2016, Petitioner was held without bond “per A.R.S. § 13-3961.” (Id. at 59) Petitioner declined court appointed counsel (Id.) and was represented by retained defense counsel Brian Strong (Id. at 11, 13, 15, 22, 47; see also Doc. 9-3 at 121, 139).

In August 2016, Petitioner and the state entered into a written plea agreement (Doc. 9-1 at 5-11) specifying that Petitioner would plead guilty to four felony charges of Attempted Molestation of a Child in violation of A.R.S. §§ 13-1410, 13-1001, and 13-705, each a Class 3 dangerous crime against children, based on conduct which occurred on or about January, March, April, and June 2015 for Counts 1 through 4, respectively (Id. at 5). The plea agreement specified that each of the four charges carried a minimum sentence of 5 years, a presumptive sentence of 10 years, and a maximum sentence of 15 years. (Id. at 6) The plea agreement reflected the parties' intention that Petitioner would receive a prison sentence for Count 1 and that if Petitioner were sentenced to probation on any of Counts 2 through 4, the probationary term would be for lifetime and would be consecutive. (Id. at 7) On August 26, 2016, Petitioner pleaded guilty pursuant to the plea agreement. (Id. at 13; Doc. 9-3 at 120-136)

On September 30, 2016, the court sentenced Petitioner consistent with the plea agreement. (Doc. 9-1 at 15-19; Doc. 9-3 at 138-162) The sentencing court found a strong aggravating factor in light of the circumstance that Petitioner had been in a position of trust to the victim, but also recognized strong mitigating factors such as Petitioner's recognition of wrongdoing, acceptance of responsibility, and the fact that Petitioner himself revealed the crimes to which he pleaded guilty. (Doc. 9-3 at 157-158) The court concluded that the presumptive term of 10 years imprisonment was proper for Count 1 and that lifetime probation was appropriate for Counts 2, 3, and 4 and the court sentenced Petitioner accordingly. (Doc. 9-1 at 15-19, Doc. 9-3 at 158)

B. Post-Conviction Relief (“PCR”) Proceedings

On December 15, 2016, Petitioner timely filed a PCR notice in the superior court. (Doc. 9-1 at 21-23) In the pro per PCR notice, Petitioner identified his previous counsel as Brian Strong and wrote “NO” in response to the question of whether he was raising an ineffective assistance of counsel claim. (Id. at 22) Petitioner requested that the court appoint counsel for PCR proceedings. (Id.) After appointed counsel Tony Gonzales advised the court that he was unable to identify any colorable claim for relief (Doc. 9-3 at 70, 94), he remained Petitioner's advisory PCR counsel (Doc. 9-3 at 70). Thereafter, in March 2018, Petitioner filed his pro per PCR petition, citing dozens of legal authorities including numerous federal and state court cases (Doc. 9-1 at 25-49) and attaching hundreds of pages of exhibits (Doc. 9-1 at 50-128; Doc. 9-2 at 2-127; Doc. 9-3 at 2-68). The PCR petition exhibits included police reports, pertinent trial court documents such as the indictment and the plea agreement, as well as transcripts of the change of plea and sentencing proceedings. (Doc. 9-1 at 50-128; Doc. 9-2 at 2-127; Doc. 9-3 at 2-68)

In the pro per PCR petition, Petitioner argued that: (1) the state held Petitioner without bond or a hearing before trial thereby punishing him and violating his due process rights; (2) the statute proscribing molestation of a child, A.R.S. § 13-1410 (2010), was unconstitutional because it improperly placed the burden of proof on Petitioner to prove a lack of sexual intent; (3) Petitioner never expressly waived his right to have a jury determine the facts used to enhance his sentence pursuant to the Dangerous Crimes Against Children (“DCAC”) statute; (4) the state failed to provide adequate notice of the charges against Petitioner; (5) the age of a victim by itself cannot provide the factual basis to enhance a sentence pursuant to the DCAC sentencing scheme; (6) the superior court did not adequately inform Petitioner that the plea agreement provided for an enhanced sentence; (7) the DCAC sentencing scheme is unconstitutional “because it violates a defendant's right to a jury trial”; (8) the punishment set forth in the statutes proscribing molestation of a child is unconstitutionally vague; (9) because Petitioner was a first-time offender, the superior court erred by sentencing Petitioner pursuant to A.R.S. § 13-705 rather than § 13-701; and (10) Petitioner's trial counsel Brian Strong provided ineffective assistance when Mr. Strong did not challenge Petitioner's detention before trial, encouraged Petitioner to accept the plea offer without advising Petitioner that the offer included an enhanced sentence, and did not object when the superior court imposed an enhanced sentence. (Id.)

The superior court dismissed the PCR petition, stating:

The [c]ourt has received and read [Petitioner's] Petition for Post-Conviction Relief, the [s]tate's Response, and [Petitioner's] Reply. The [c]ourt has reviewed the exhibits attached to the Petition.

The [c]ourt accepts the Petition as timely. See State v. Rosario, 195 Ariz. 264, 987 P.2d 226 (App. 1999). None of [Petitioner's] claims are precluded. However, none of [Petitioner's] claims raise a material issue of fact or law. Rule 32(c), Ariz.R.Crim.Pro.

The [Petitioner's] plea waives all non-jurisdictional defenses and claims. State v. Reed, 121 Ariz. 547, 548, 592 P.2d 381, 382 (App. 1979). By pleading guilty, the [Petitioner] waives his right to complain of any irregularities occurring during the preliminary stages of the proceedings. State v. Miller, 110 Ariz. 3014, 307, 518 P.2d 137, 130 (1974). Such a waiver extends to complaints of due process violations. Id. The record clearly establishes that [Petitioner] entered the plea knowingly, intelligently and voluntarily. Even if they weren't waived, the Defendant's claims to various due process violations are meritless given the [c]ourt's questions and the [Petitioner's] answers

during the change of plea proceeding. State v. Chudy, 147 Ariz. 385, 387, 706 P.2d 397 (App. 1985).

[Petitioner's] complaint that he received an “enhanced” sentence is without merit. The [Petitioner] was advised of the range of sentencing in his plea. He acknowledged the range and waived the right to have “a jury to determine any fact used to impose a sentence.” Additionally, the [Petitioner] received a presumptive sentence so Apprendi does not apply. See Apprendi v. New Jersey, 530 U.S. 466 (2000).

[Petitioner's] remaining allegations support his dissatisfaction with counsel but fail to establish that counsel's performance fell below prevailing professional norms. State v. Santanna, 153 Ariz. 147, 149, 735 P.2d 757, 759 (1987). Additionally, given the strength of the [s]tate's case, there is absolutely no evidence that Petitioner would have received a more beneficial resolution. Id.

The Court has searched the record for any basis for post-conviction relief and finds none. Based upon the pleadings and the information in the [c]ourt's file, the [c]ourt concludes that no purpose would be served by any further proceedings.

(Doc. 9-3 at 69-70 (italics in original, bold emphasis added)) The order specified that copies were sent to not just Petitioner, but also to “Tony J. Gonzales, Esq.” as “advisory Counsel” for Petitioner. (Id. at 70)

Petitioner filed a petition for review in the Arizona Court of Appeals, but Petitioner did not request for review of all the issues he presented to the superior court. (Id. at 72-91) The Arizona Court of Appeals described Petitioner's petition for review as asserting that: (1) the superior court erred by not performing fundamental error review; (2) the state did not provide Petitioner with adequate notice that he was being charged with DCAC offenses that were subject to enhanced punishment; (3) under the DCAC sentencing scheme, the age of the victim is alone insufficient to provide a factual basis for enhancing a sentence; (4) trial counsel provided ineffective assistance of counsel by not requesting a bond hearing, encouraging Petitioner to accept the plea offer, and not objecting to Petitioner's sentence given the lack of a sufficient factual basis. (Doc. 9-3 at 95) The court of appeals denied relief on all of Petitioner's claims. (Id. at 94-98) In rejecting the Petitioner's claim that the superior court erred by failing to perform fundamental error review “akin to the process required for direct appeals under Anders v. California, 386 U.S. 738 (1967)[, ]” the court of appeals declared that “[a]s recently held by this court, however, the current Rule 32 procedure does not require the superior court to conduct such a review. State v. Chavez, 243 Ariz. 313, 318-19 ¶ 17 (App. 2017).” (Id. at 96)

Petitioner filed a petition for review in the Arizona Supreme Court. (Id. at 100-110) On November 14, 2019, the supreme court denied the petition without comment. (Id. at 118)

C. Habeas Claims in Amended Petition

Petitioner raises six grounds for relief in the Amended Petition. (Doc. 5 at 6-11) Respondents address numerous sub-claims asserted under Grounds 3, 4, and 5 for purposes of assessing whether the sub-claims are exhausted, cognizable in federal habeas, or should be considered on the merits. (Doc. 9 at 3-5) In the interests of clarity and consistency, Respondents' identification of Petitioner's sub-claims is adopted herein.

In Ground 1, Petitioner alleges that the state violated his Fourteenth Amendment rights because the indictment did not provide Petitioner adequate notice of the crimes with which he was charged. (Doc. 5 at 6) Petitioner asserts the indictment neither “allege[d] all essential elements” of the crimes charged nor implied them. (Id.)

In Ground 2, Petitioner asserts that at his change of plea hearing, the superior court did not find a factual basis to support all of the essential elements of the four counts to which Petitioner pleaded guilty, thereby violating Petitioner's due process rights. (Id. at 7)

Petitioner alleges three sub-claims under Ground 3. In Ground 3 a, Petitioner argues he entered into his plea agreement unintelligently because “neither the plea [agreement] nor the law makes clear what constitutes a DCAC crime.” (Id. at 8) Ground 3b contends that petitioner's plea offer was less advantageous than if he had proceeded to trial and been found guilty. (Id.) In Ground 3 c, Petitioner claims that his plea was not made intelligently since neither the trial court, defense counsel, nor the prosecution “made a distinction between the enhanced crime in the plea and the lesser included [crime] in the indictment.” (Id.)

Petitioner alleges two sub-claims within Ground 4. (Id. at 9) In Ground 4a, Petitioner contends he was “imprisoned without bond under an unconstitutional statute[, ]” referring to A.R.S. § 13-3961(a). (Id.) Petitioner further argues in Ground 4b that his detention without a bond violated his due process rights. (Id.)

Petitioner asserts eight sub-claims of ineffective assistance of trial counsel under Ground 5. (Id. at 10) He argues that his trial counsel Brian Strong was ineffective for: not knowing “there was an enhanced crime different from the lesser-included [crime Petitioner] was indicted on[]” (Ground 5a); urging Petitioner to accept a plea offer that contained an enhancement (Ground 5b); failing to object at Petitioner's change of plea hearing “when a fact was not held to uphold the enhanced conviction[]” (Ground 5c); failing to defend Petitioner's “right to due process in the pretrial stages of this case[]” (Ground 5d); refusing to seek “the required adversarial hearing” when Petitioner was denied a bond (Ground 5e); failing to challenge “the overbroad punitive statute [Petitioner] was held under[]” (Ground 5f); refused to investigate a new ruling on the allegedly overbroad statute (Ground 5g); and failing to challenge the “inadequate notice in the indictment[]” (Ground 5i). (Id. at 10) Petitioner also stated that “[n]on-incarcerated persons are convicted less often and receive shorter sentences than their incarcerated counterparts[]” which is listed by Respondents as Ground 5(h). (Id.)

In Ground 6, Petitioner claims his constitutional rights were violated when the trial court “failed to conduct the fundamental review for error required by the U.S. Constitution despite [Petitioner] having a right to counsel during of-right Rule 32 proceedings.” (Id. at 11)

Requesting relief, Petitioner asks the Court to “remove the enhancement from [his] conviction, or revoke the plea, or dismiss the conviction and charges with prejudice because of the unlawful punishment[, ] . . . order the Superior Court to conduct a review for fundamental error[, ] or whatever the Court sees fit.” (Doc. 5 at 13)

Respondents concede that these habeas proceedings were timely filed. (Doc. 9 at 7) Respondents assert that: Grounds 4a, 4b, 5e, 5h are barred from federal habeas corpus review; Grounds 2, 3c, 5a, 5b, 5c, 5d, 5f, 5g, 5h and 5i are technically exhausted but procedurally defaulted; and Grounds 1, 3 a, 3b, and 6 fail on the merits. Respondents also argue that Grounds 5a, 5b, 5c, 5d, 5g, in addition to being technically exhausted but procedurally defaulted, also rest on unidentified independent and adequate state law ground. (Id. at 11-19)

II. LEGAL FRAMEWORK

A. Exhaustion of Remedies 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); Duncanv. 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.”). The prisoner must present his claim “in each appropriate state court.” Baldwin, 541 U.S. at 29.

A claim can also be subject to an express or implied procedural bar. Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). 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). An implied procedural bar exists if a claim was not fairly presented in state court and no state remedies remain available to the petitioner. Coleman, 501 U.S. at 735 n.1; Rose v. Lundy, 455 U.S. 509, 519-20 (1982); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002).

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 v. U.S., 523 U.S. 614, 623 (1998); Jaramillo v. Stewart, 340 F.3d 877, 882-83 (9th Cir. 2003). 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 v. Lampert, 653 F.3d 929, 945 (9th Cir. 2011); McQuiggin, 569 U.S. at 399 (2013) (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 v. Perkins, 569 U.S. 383, 399 (2013) (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 v. Payne, 223 F.3d 982, 990 (9th Cir. 2000) (citing Calderon v. Thompson, 523 U.S. 538, 559 (1998)).

B. Ineffective Assistance of Counsel

Under clearly established federal law on ineffective assistance of counsel (“IAC”), Petitioner must show both that his counsel's performance was objectively deficient and that the deficient representation caused him prejudice. Stricklandv. Washington, 466 U.S. 668, 687 (1984). In federal habeas review pursuant to 28 U.S.C. § 2254, this results in a “doubly deferential” review of counsel's performance. Cullen v. Pinholster, 563 U.S. 170, 190 (2011). The Court has discretion to determine which Strickland prong to apply first. LaGrand v. Stewart, 133 F.3d 1253, 1270 (9th Cir. 1998). “Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.” Strickland, 466 U.S. at 700.

A habeas court reviewing a claim of JAC must determine “whether there is a reasonable argument that counsel satisfied Strickland's deferential standard, such that the state court's rejection of the JAC claim was not an unreasonable application of Strickland. Relief is warranted only if no reasonable jurist could disagree that the state court erred.” Murray v. Schriro, 746 F.3d 418, 465-66 (9th Cir. 2014) (internal citations and quotations omitted). In other words, this Court's “pivotal question is whether the state court's application of the Strickland standard was unreasonable.” Harrington v. Richter, 562 U.S. 86, 101 (2011).

Petitioner received objectively deficient representation if his counsel “‘fell below an objective standard of reasonableness' such that it was outside ‘the range of competence demanded of attorneys in criminal cases.'” Clark v. Arnold, 769 F.3d 711, 725 (9th Cir. 2014) (quoting Strickland, 466 U.S. at 687). “The question is whether an attorney's representation amounted to incompetence under ‘prevailing professional norms,' not whether it deviated from best practices or most common custom.” Harrington, 562 U.S. at 105 (quoting Strickland, 466 U.S. at 688). To demonstrate prejudice, Petitioner “must show that there [wa]s a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.

C. 28 U.S.C. § 2254 Habeas Petition - Merits Standard of Review

On habeas review, this Court may grant relief if the petitioner demonstrates prejudice because the adjudication of a claim on the merits in state court 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). This is a “‘highly deferential standard for evaluating state court rulings' which demands that state court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n. 7 (1997)). In making a determination pursuant to § 2254(d), a federal court “looks to the last reasoned state court decision to address the claim.” White v. Ryan, 895 F.3d 641, 665 (9th Cir. 2018) (citing Wilson v. Sellers, U.S., 138 S.Ct. 1188, 1192 (2018)).

Under the “unreasonable application” prong of § 2254(d)(1), a federal habeas court may grant relief where a state court “identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular ... case” or “unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Williams v. Taylor, 529 U.S. 362, 407 (2000). For a federal court to find a state court's application of Supreme Court precedent “unreasonable” under § 2254(d)(1), the petitioner must show that the state court's decision was not merely incorrect or erroneous, but “objectively unreasonable.” Id. at 409. Under AEDPA, “[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington, 562 U.S. at 101. Accordingly, to obtain habeas relief from this Court, Petitioner “must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.

With respect to § 2254(d)(2), a state court decision “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.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). A “state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood v.Allen, 558 U.S. 290, 301 (2010). As the Ninth Circuit has explained, to find that a factual determination is unreasonable under § 2254(d)(2), the court must be “convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record.” Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004), abrogated on other grounds by Murray v. Schriro, 745 F.3d 984, 1000 (9th Cir. 2014). “This is a daunting standard-one that will be satisfied in relatively few cases.” Id.

III. DISCUSSION

A. Procedural Default

Respondents argue that: (1) Grounds 2, 3c, 5a, 5b, 5c, 5d, 5f, 5g, 5h, and 5i are technically exhausted but procedurally defaulted for Petitioner's failure to assert the claims in each required state court in his PCR action; and (2) Grounds 5a, 5b, 5c, 5d, in addition to being technically exhausted but procedurally defaulted also are waived based on independent and adequate state law grounds. (Doc. 9 at 11-19) For the reasons discussed below, undersigned agrees that Grounds 3c, 5f, and 5i are procedurally defaulted but concludes that Ground 5g is not sufficiently pled to support habeas relief and that Grounds 2, 5 a, 5b, 5 c, and 5d must be considered on the merits. As discussed below in Section III(B)(4), Ground 5h does not assert a claim cognizable in federal habeas corpus review.

1. Ground 2

Petitioner's Ground 2 claim is that the superior court violated his Fourteenth Amendment Due Process rights at his change of plea hearing because the court failed to establish a factual basis for each essential element of the crimes charged. (Doc. 5 at 7) Petitioner alleges the superior court found that the victim was under 15 years old when Petitioner committed sexual acts on him but failed to supply a factual basis for the element of intent needed to establish a DCAC offense. (Id.) Petitioner asserted this claim in his pro per PCR petition to the superior court, although stated differently. (Doc. 9-1 at 36-41) There, he stated the enhancement of his sentence could not be legal because it lacked a factual basis. (Id. at 37, 41) Within Petitioner's discussion of this claim, he addressed the federal Due Process requirement that a plea be entered knowingly and voluntarily with an express waiver of constitutional rights. (Id. at 37)

In his petition for review of the superior court's ruling to the Arizona Court of Appeals, Petitioner argued the trial court had not established “a factual basis to support the DCAC enhancement” as opposed to the “normal crime” of Molestation of a Child without such an enhancement. (Doc. 9-3 at 86-90) Petitioner quoted Apprendi v. New Jersey for Supreme Court authority “establishing] that a ‘crime' includes every fact that is by law a basis for imposing or increasing punishment.” (Id. at 87, quoting Apprendi v. New Jersey, 530 U.S. 466, 501 (2000) (concurrence by Thomas, J.).) Among the authority Justice Thomas cited in his concurrence in Apprendi was the holding of In re Winship, 397 U.S. 358, 364 (1970) that due process requires a jury to find every fact necessary to constitute the crime. Apprendi, 530 U.S. at 499-500.

Although Respondents state that Petitioner did not raise his Ground 2 claim to either the superior court or the Arizona Court of Appeals (Doc. 9 at 12), the record indicates otherwise. Petitioner exhausted this claim, which is considered on the merits below in Section III(D)(2).

2. Ground 3 c

Petitioner asserts in Ground 3 c that he did not enter the plea agreement intelligently because he was not advised by either the court, defense counsel, or the prosecution that there was a “distinction between the enhanced crime in the plea and the lesser-included crime in the indictment.” (Doc. 5 at 8) In Petitioner's pro per PCR petition, he cited Brady v. United States, 397 U.S. 742, 748 (1970) for its statement that a plea agreement “not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” (Doc. 9-1 at 37) He asserted that “because the court, prosecutor, and defense counsel failed to inform [Petitioner] that the plea called for a discretionary enhancement, [Petitioner] was deprived of information relevant to the exact terms of the plea.” (Id.)

Petitioner did not argue this claim in his petition for review to the Arizona Court of Appeals. (Doc. 9-3 at 86-90) Thus, Petitioner has not fairly presented his Ground 3c claim to “each appropriate state court[, ]” Baldwin, 541 U.S. at 29, it is too late under Arizona procedures to return to state court to exhaust the claim, and the claim is technically exhausted but procedurally defaulted.

3. Ground 5a

Petitioner argues in his Ground 5a claim that defense counsel Brian Strong provided IAC because “he did not know there was an enhanced crime different from the lesser included [offense] [Petitioner] was indicted on. [Counsel] assumed all child sex offenses (the lesser included) were always the higher sentencing range.” (Doc. 5 at 10) Petitioner in his pro per PCR petition alleged his defense counsel was ineffective when he “left Petitioner exposed to . . . an enhanced plea agreement without any warning.” (Doc. 9-1 at 46-47, 48)

In his petition for review to the Arizona Court of Appeals, Petitioner asserted that defense counsel did not understand “the case law relevant to enhancements.” (Doc. 9-3 at 77)

Respondents argue that the court of appeals found this claim was not properly exhausted because Petitioner did not raise the same issue he asserted in the superior court in his petition for review in the court of appeals. (Doc. 9 at 15) Petitioner contends his claim is not procedurally barred because the court of appeals addressed it on the merits and that Respondents' position that Petitioner did not raise the claim with both the superior court and the Arizona Court of Appeals is refuted by the record. (Doc. 12 at 15-16)

Undersigned concludes that Petitioner raised the same claim, although couched in somewhat different language, in his PCR action in the superior court and in the court of appeals as well as in the Amended Petition. Petitioner clearly alleged in his PCR action in superior court that his trial counsel was ineffective under Strickland for not challenging what Petitioner believes to be improperly enhanced sentences. (Doc. 9-1 at 47-48) Similarly, on petition for review in the Arizona Court of Appeals, Petitioner alleged trial counsel Brian Strong violated Petitioner's Strickland rights when counsel failed to object to Petitioner's enhanced sentencing because counsel did not understand “the case law relevant to enhancements.” (Doc. 9-3 at 77) As noted, in Ground 5a, Petitioner alleges his trial counsel provided IAC and violated the Sixth Amendment because counsel did not understand Arizona statutes applicable to sentencing regarding child sex offenses. (Doc. 5 at 10) Accordingly, Respondents are incorrect in asserting that Petitioner did not assert this claim at both required levels of state court review.

The superior court concluded that Petitioner's claims of IAC lacked merit. Moreover, the Arizona Court of Appeals considered Petitioner's Ground 5a claim on the merits and determined that Petitioner's “trial counsel was not deficient by failing to object to the enhanced sentence imposed.” (Doc. 9-3 at 97-98) Thus, this claim was not procedurally defaulted and the state courts decided it on the merits. Undersigned considers the claim on the merits below in Section III(D)(6).

4. Ground 5b

In Ground 5b, Petitioner contends his defense counsel provided IAC when counsel “pushed a plea that contained an enhancement. That plea carried a presumptive of 40 years while trial's presumptive was 10 years.” (Doc. 5 at 10) In his pro per PCR petition, Petitioner contended that during plea negotiations he had questioned why the general sentencing provisions of A.R.S. § 13-702 for first time offenders was “contradicted [by] the pleas that the prosecution offered which enhanced his sentence from a maximum of 14 years to 60 years[.]” (Doc. 9-1 at 47) Petitioner claimed that his trial counsel just told him “that life was unfair, but did nothing in the way of righting these constitutional violations . . . and pushed [Petitioner] into signing the plea saying, ‘This is the best I could do,' and ‘If you don't sign this, I'll break your arm.'” (Id.) In its order dismissing the PCR petition, the superior court held that Petitioner's argument he had received an “enhanced” sentence was meritless and concluded generally that Petitioner had failed to establish that defense counsel had provided IAC. (Doc. 9-3 at 69)

On petition for review, Petitioner asserted that defense counsel had “pushed a plea agreement that had a higher sentencing range than a loss at trial would constitute as it had an enhancement which was not alleged in the indictment.” (Doc. 9-3 at 73) Despite this, the Arizona Court of Appeals erroneously concluded that Petitioner had waived “his claims of ineffective assistance of counsel predicated on counsel's . . . encouragement to accept the plea offer” for failure to reassert this claim in his petition for review. (Doc. 9-3 at 95) Petitioner contends the court of appeals erroneously held his Ground 5b claim was waived and concludes this Court should not apply a procedural bar based on the appellate court's mistake.

The Ninth Circuit has concluded that “[w]hile it is unusual to reject a state court' use of a procedural bar on the ground that it was erroneously applied, ‘[t]he procedural default doctrine self-evidently is limited to cases in which a “default” actually occurred i.e., cases in which the prisoner actually violated the applicable state procedural rule.'” Sivak v. Hardison, 658 F.3d 898, 907 (9th Cir. 2011) (quoting 2 J. Liebman & R. Hertz, Federal Habeas Corpus Practice and Procedure § 26.2c (6th ed. 2011)). The Ninth Circuit declared it was following “the Supreme Court and our sister circuits in holding that an erroneously applied procedural rule does not bar federal habeas review.” Id. (citing James v. Kentucky, 466 U.S. 341, 351 (1984); Mapes v. Coyle, 171 F.3d 408, 429 (6th Cir. 1999); Forgy v.Norris, 64 F.3d 399, 402 (8th Cir. 1995); and Kubat v. Thieret, 867 F.2d 351, 366 n. 11 (7th Cir. 1989). Applying this instruction to the circumstances of Petitioner's Ground 5b claim, undersigned considers the claim on the merits in Section III(D)(7), below.

5. Ground 5c

Petitioner's Ground 5c claim is that his defense counsel Brian Strong provided IAC by not objecting at Petitioner's change of plea hearing “when a fact was not held to uphold the enhanced conviction.” (Doc. 5 at 10) In his PCR petition, Petitioner alleged that defense counsel did not object to “an arbitrary sentence enhancement when the judge, acting as fact finder, failed to find any element to activate the enhancement.” (Doc. 9-1 at 48) This claim is very closely related to Petitioner's Ground 5a argument. Respondents contend that Petitioner did not raise this claim in his petition for review in the Arizona Court of Appeals. (Doc. 9 at 16) In his Reply, Petitioner argues as he did with regard to Ground 5a, that the claim is not subject to procedural default because the court of appeals addressed it on the merits and further because Petitioner raised the issue with both the superior court and the Arizona Court of Appeals. (Doc. 12 at 15-16)

Contrary to Respondents' position, the record indicates that Petitioner did allege in his petition for review filed in the Arizona Court of Appeals that his trial counsel violated the requirements of Strickland when at the change of plea hearing counsel failed to object to Petitioner's sentence when “[n]o fact was found or cited on the record to enhance the sentence from a Class 3 felony to a DCAC.” (Doc. 9-3 at 80-81) In its memorandum decision, the court of appeals expressly noted that Petitioner alleged IAC by trial counsel when he failed “to object to the sentence, notwithstanding the absence of a sufficient factual basis.” (Id. at 95) Further, the court of appeals decided this claim on the merits, concluding that defense counsel was not ineffective “by objecting to the enhanced sentence imposed.” Because the Arizona Court of Appeals decided this claim on the merits, it was not precluded and will be addressed on the merits in Section III(D)(6) below.

6. Ground 5d

Petitioner argues in Ground 5d that his defense counsel Brian Strong was ineffective when he “failed to defend [Petitioner's] right to due process in the pretrial stages of this case.” (Doc. 5 at 10)

In Petitioner's pro per PCR petition he asserted that his trial counsel was ineffective for failing “to identify the constitutional violations of presumption of guilt, lack of adequate notice, and punishment without Due Process to correct them or preserve them for review.” (Doc. 9-1 at 46-47) The superior court concluded that Petitioner's plea waived “all non-jurisdictional defenses and claims[, ]” including “complaints of due process violations” but also ruled on the merits, finding that Petitioner had failed to establish his counsel's “performance fell below prevailing professional norms.” (Doc. 9-3 at 69) In his petition for review to the Arizona Court of Appeals, Petitioner alleged that trial counsel “failed to defend [Petitioner's] right to bond or even attempt to secure due process for the denial of bond[.]” (Id. at 73) The court of appeals noted that Petitioner had asserted his trial counsel was ineffective when he failed to request a bond hearing. (Id. at 95) However, the court of appeals then contradicted itself and concluded that Petitioner waived this claim by not reasserting it in his petition for review, while in fact he had asserted the claim. (Id.) As with Ground 5b, the Arizona Court of Appeals erroneously applied a state procedural rule. Accordingly, this mistaken application does not bar federal habeas review of Petitioner's IAC claim. Sivak, 658 F.3d at 907. Accordingly, Ground 5d is considered on the merits below in Section III(D)(8).

7. Ground 5f

In Ground 5f, Petitioner argues his defense counsel failed to challenge “the overbroad punitive statute [Petitioner] was held under.” (Doc. 5 at 10) Respondents accurately assert that Petitioner failed to raise this claim in the state courts in his PCR proceeding. (Doc. 9-1 at 25-49, Doc. 9-3 at 72-91) Petitioner does not address this claim in his Reply. (Doc. 12) Petitioner failed to exhaust this claim. Because under Arizona law it is too late for Petitioner to return to state court to exhaust the claim, it is technically exhausted but procedurally defaulted. Coleman, 501 U.S. at 735 n.1.

8. Ground 5g

Petitioner asserts in Ground 5g that “even after [Petitioner] notified counsel to the new ruling he refused to investigate.” (Doc. 5 at 10) Petitioner does not explain in the Amended Petition what “new ruling” he refers to and does not address this claim in his Reply. The claim amounts to a conclusory statement lacking in any facts to support the conclusion, thereby violating the requirements of Rule 2(c)(2) of the Rules Governing Section 2254 Cases. See also Mayle v. Felix, 545 U.S. 644, 655 (2005) (noting that the rules governing pleading for Section 2254 habeas petitions are “more demanding” than the notice pleading allowed under Fed.R.Civ.P. 8); James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (“Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.”); Greenway v. Schriro, 653 F.3d 790, 804 (9th Cir. 2011) (“[C]ursory and vague claim[s] cannot support habeas relief.”). As alleged, this claim is insufficient to support habeas relief.

9. Ground 5i

Petitioner's IAC claim in Ground 5i is that defense counsel Brian Strong failed to “complain about the inadequate notice in the indictment.” (Doc. 5 at 10) In Petitioner's pro se PCR petition in the superior court, he alleged his trial counsel was ineffective when he “failed to identify the constitutional violations of presumption of guilt, lack of adequate notice, and punishment without Due Process to correct them or preserve them for review.” (Doc. 9-1 at 46-47) Petitioner did not specify that the lack of notice involved his indictment, and his discussion instead centered on the issues of his detention after not obtaining release on bond, “a sentence that was worse than a loss at trial, ” and an enhanced plea agreement without warning. (Id. at 48) Petitioner asserted in his petition for review that his trial counsel “should have known that adequate notice requires that all crimes and enhancements alleged in an indictment must be supported by alleged facts[]” and he claimed that the indictment failed to “allege any facts beyond those necessary to convict of sexual conduct with a minor, a Class 2 felony.” (Doc. 9-3 at 79-80)

“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.” O 'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). “Generally, a petitioner satisfies the exhaustion requirement if he properly pursues a claim (1) throughout the entire direct appellate process of the state, or (2) throughout one entire judicial postconviction process available in the state.”² Casey v.Moore, 386 F.3d 896, 916 (9th Cir. 2004) (quoting J. Liebman & R. Hertz, Federal Habeas Corpus Practice and Procedure, § 23.3b (4th ed. 1998)). See also Childers v. State ofArizona, No. 05-2010-PHX-ROS, 2006 WL 1543986, *5 (D. Ariz. June 2, 2006) (claim not raised in petitioner's PCR Notice but raised in petition for review filed with the Arizona appellate court was not properly exhausted).

2 In Arizona, for non-capital cases “review need not be sought before the Arizona Supreme Court in order to exhaust state remedies.” Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); see also Crowell v. Knowles, 483 F.Supp.2d 925 (D. Ariz. 2007); Moreno v.Gonzalez, 192 Ariz. 131, 962 P.2d 205 (1998).Petitioner's Ground 4b claim is that his detention prior to trial violated his Fourteenth Amendment due process rights and stripped the state of its jurisdiction to prosecute him. (Doc. 5 at 9) Petitioner asserted in his pro per PCR petition that his federal constitutional rights were violated at his initial appearance when the judge relied on A.R.S. § 12-3961(A) to deny him bail. (Doc. 9-1 at 31) He concluded that his detainment became punishment and deprived him of due process. (Id. at 34) The superior court stated that Petitioner's plea waived his claims based on due process violations. (Doc. 9-3 at 69) Although Petitioner asserted this claim in his petition for review (Id. at 86), the Arizona Court of Appeals did not specifically address the claim. (Id. at 93-98)

Petitioner failed to assert his Ground 5i claim in the superior court and so did not present the claim during “one entire judicial postconviction process.” Casey, 386 F.3d at 916. Because it is not possible under Arizona statutes for Petitioner to timely return to state court to assert this claim, the claim is technically exhausted but procedurally defaulted.

B. Claims Respondents Argue are Barred from Federal Habeas Corpus Review

Respondents argue that Petitioner's claims asserted in Grounds 4a, 4b, 5e, and 5h are based on independent and adequate state law grounds and are thus barred from federal habeas corpus review. For the reasons addressed below, undersigned instead concludes that Grounds 4a, 4b, and 5e must be considered on the merits and that Ground 5h is insufficient to assert a claim cognizable in federal habeas corpus review.

1. Ground 4 a

Petitioner asserts he was imprisoned under an unconstitutional statute, A.R.S. § 13-3961(A), and was not given an “adversarial hearing required by state law” in violation of due process under the Fourteenth Amendment. (Doc. 5 at 9) He correctly states that this statute later was ruled unconstitutional on due process grounds. (Id.) Petitioner asserted this claim on the basis of Arizona and federal law in his pro per PCR petition. (Doc. 9-1 at 3034) The superior court concluded Petitioner had waived this claim by pleading guilty. (Doc. 9-3 at 69) Petitioner reasserted his claim on petition for review (Id. at 82-86), but the Arizona Court of Appeals did not expressly address it. (Id. at 93-98)

Respondents contend that the superior court's conclusion that Petitioner had waived the claim by pleading guilty “rests on an independent and adequate state law ground and is barred” from the Court's review. (Doc. 9 at 13-14) Respondents do not specify or discuss what independent and adequate state law ground provided the basis for waiver of this claim. (Doc. 9 at 13-14) Accordingly, as the party seeking dismissal based on a procedural bar, Respondents have failed to demonstrate that “the bar is applicable, ” that is, that “the state procedural rule has been regularly and consistently applied[.]” Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir. 2003). For this reason, undersigned considers the merits of this claim below in Section III(D)(5).

2. Ground 4b

Respondents argue the superior court's finding this claim was waived by Petitioner's plea is barred from federal habeas review because the waiver rests on an independent and adequate state law ground. (Doc. 9 at 14) However, as with Ground 4a, Respondents do not specify the state law ground they rely on for their waiver argument and undersigned will consider this claim on the merits below in Section III(D)(5).

3. Ground 5e

In Ground 5e, Petitioner contends that when he inquired of his trial counsel whether his denial of bond was correct, counsel “refused to seek the required adversarial hearing.” (Doc. 5 at 10) In his pro per PCR petition, Petitioner asserted his defense counsel Brian Strong was ineffective for failure to identify a constitutional violation of punishment without due process and complained that when he asked counsel why the court had denied bond, counsel told him “that's just the way it is.” (Doc. 9-1 at 46-48) The superior court summarily concluded that Petitioner had failed to establish that “counsel's performance fell below prevailing professional norms.” (Doc. 9-3 at 69)

In his petition for review by the Arizona Court of Appeals, Petitioner claimed that defense counsel Brian Strong “failed to defend [Petitioner's] right to [a] bond or even attempt to secure due process for the denial of bond.” (Id. at 73, 76-78) The court of appeals stated that “to the extent [Petitioner] argues that his right to challenge trial counsel's failure to seek a bond hearing survives his guilty plea, . . . none of the cases he relies on support that proposition. (Id. at 95, citing cases including Blackledge v. Perry, 417 U.S. 21, 30-31 (1974) and Menna v. New York, 423 U.S. 61, 62-63 (1975)) The court of appeals further concluded that by entering a guilty plea, Petitioner had waived “claims of ineffective assistance of counsel, except those that relate to the validity of his plea.” (Id. at 96 (citation and internal quotation marks omitted))

Respondents conclude that the court of appeals' denial of Ground 5e was based on an independent and adequate state law ground and that the claim is barred from federal habeas corpus review. (Doc. 9 at 17) Respondents fail to identify what state procedural rule the court of appeals relied on to deny this claim. The court of appeals declared, without citing to any state procedural rule, that Petitioner had “abandoned all PCR claims not reasserted in his petition for review, ” and concluded he had waived his claim of IAC based on counsel's failure to request a bond hearing. (Doc. 9-3 at 95) However, the court made the contradictory observation earlier in its memorandum decision that Petitioner in fact had alleged in his petition for review that his counsel had been ineffective by “failing to request a bond hearing.” (Id.) As noted in the discussion above in Section III(A)(6), the record indicates that in his petition for review, Petitioner in fact did argue his trial counsel was ineffective for failure to assert Petitioner's right to a bond or challenge the denial of a bond. (Id. at 73) Thus, the Arizona Court of Appeals erroneously applied a state procedural rule and this incorrect application of the rule does not bar federal habeas review of Petitioner's claim. Sivak, 658 F.3d at 907. Petitioner's Ground 5e claim is considered on the merits below in Section III(D)(8).

4. Ground 5h

Petitioner states within Ground 5 that “[n]on-incarcerated persons are convicted less often and receive shorter sentences than their incarcerated counterparts.” (Doc. 5 at 10) Respondents note what is apparent - that this is a statement and not a claim alleging he is “in custody in violation of the Constitution or laws or treaties of the United States[.]” 28 U.S.C. § 2241(c)(3). The statement is not a cognizable claim in federal habeas review, a conclusion that Petitioner did not contest or address in his Reply (Doc. 12).

C. Cause and Prejudice or Actual Innocence

Petitioner states that Respondents concede that “all claims have been exhausted.” (Doc. 12 at 3) This assertion is incorrect and contradicted by the Answer. However, as is discussed above, undersigned concludes that only Petitioner's Grounds 3 c, 5f, and 5i are procedurally defaulted, and Ground 5g was insufficiently pled to warrant federal habeas review. In his Reply, Petitioner does not discuss Grounds 5f, 5i, or 5g and only states regarding Ground 3 c that he asserted this claim on petition for review in the court of appeals, a position the record refutes. Petitioner does not argue that cause and prejudice excuse his default of Grounds 3 c, 5f, or 5i.

In Ground 3, Petitioner claims he is “actually innocent of the enhanced crime.” (Doc. 5 at 8) However, Petitioner's argument is the alleged legal insufficiency of his conviction. He does not attempt to establish his actual innocence. Bousley, 523 U.S. at 623. Neither does Petitioner provide any new reliable evidence of his actual innocence. Schlup, 513 U.S. at 324. Accordingly, undersigned concludes Petitioner has failed to establish either cause and prejudice or actual innocence to excuse the procedural default of Grounds 3 c, 5f, or 5i.

D. Merits Review of Grounds 1, 2, 3a, 3b, 4a, 4b, 5a, 5b, 5c, 5d, 5e, and 6

1. Ground 1

Petitioner contends he was not given adequate notice of the crimes on which he was convicted when the indictment did not “allege all essential elements” of the crimes. (Doc. 5 at 6) Petitioner asserts this violated the Fourteenth Amendment. (Id.) The superior court concluded Petitioner had waived all non-jurisdictional defenses and claims, and that even if he had not waived his claims, such claims of due process violations were without merit considering the court's “questions and [Petitioner's] answers during the change of plea hearing.” (Doc. 9-3 at 69) The Arizona Court of Appeals addressed Petitioner's argument, stating:

[Petitioner] seemingly challenges the validity of his plea by arguing the State failed to provide him with adequate notice that he was charged with offenses designated as dangerous crimes against children and subject to sentencing enhancement. To provide sufficient notice, an indictment must: (1) contain the elements of the offense charged; (2) set forth “a plain, concise statement of the facts” that form the basis of the charged offense; and (3) cite “the statute, rule, regulation or other provision of law the defendant allegedly violated.” Ariz. R. Crim. P. 13.1(a), (d); see also Hamling v. United States, 418 U.S. 87, 117 (1974).

Here, the [s]tate charged [Petitioner] by indictment with one count of sexual conduct with a minor (alleging he knowingly engaged in sexual intercourse or oral sexual contact with a minor under fifteen years old) and one count of continuous sexual abuse of a child (alleging he engaged in sexual conduct with a minor under fourteen years old over a four-month period). For each count, the [s]tate alleged that [Petitioner] violated A.R.S. § 13-705, the dangerous crimes against children sentencing statute. In addition, the plea agreement expressly identified each count as a dangerous crime against

children in the third degree and stated that each offense was committed in violation of A.R.S. section 13-705. Therefore, contrary to [Petitioner's] contention, the [s]tate provided constitutionally-adequate notice that he was charged with offenses designated as dangerous crimes against children and subject to sentencing enhancement.

(Doc. 9-3 at 96-97)

Respondents contend the Arizona Court of Appeals reasonably concluded Petitioner was provided with constitutionally adequate notice of his crimes in the indictment and the factors that would enhance his sentence. (Doc. 9 at 22-23) Respondents indicate the indictment alleged that Petitioner: “knowingly engaged in sexual intercourse or oral sexual contact with” the victim “who was under the age of 15 years” under Count 1; “engaged in three or more acts of sexual conduct with a minor, sexual assault or molestation of a child with [the victim] a child under 14 years of age”; and also cited § 13-705, the DCAC statute, for both counts. (Id. at 23)

Petitioner's Ground 1 challenges his indictment as to Count 1. (Doc. 5 at 6) The indictment in Petitioner's case charged Petitioner in Count 1 with violation of the crime of sexual conduct with a minor and alleged that “[o]n or about between January 1, 2015 and February 28, 2015, [Petitioner], knowingly engaged in sexual intercourse or oral sexual contact with [the victim], who was under the age of 15 years, in violation of A.R.S. §§ 131405 and 13-705, a class 2 felony.” (Doc. 9-1 at 3) Petitioner argues that the indictment lists the elements of an “unenhanced” offense but failed to allege “any fact that could be used to enhance the sentence to a [DCAC].” (Doc. 5 at 6) Petitioner contends that while the indictment cites the DCAC statute, A.R.S. § 13-705, the statute does not define what “activates it.” (Id.) Petitioner asserts that the Arizona Supreme Court has held that targeting of the victim is the “activating element” needed to apply sentencing under the DCAC. (Id.)

The United States Supreme Court in Hamling v. United States stated that an indictment is constitutionally sufficient if it “contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” 418 U.S. 87, 117 (1974) (citing Hagner v. United States, 285 U.S. 427 (1932) and United States v. Debrow, 346 U.S. 374 (1953)). The Supreme Court instructed that an indictment may “set forth the offense in the words of the statute itself, ” as long as the wording of the statute ‘“set[s] forth all the elements necessary to constitute the offence intended to be punished.'” Id. (quoting United States v. Carll, 105 U.S. 611, 612 (1881)). The Ninth Circuit explains that “[a]n indictment ‘should be read in its entirety, construed according to common sense, and interpreted to include facts which are necessarily implied.'” United States v. Berger, 473 F.3d 1080, 1103 (9th Cir. 2007) (quoting United States v. King, 200 F.3d 1207, 1217 (9th Cir. 1999)).

As noted, Petitioner was charged under A.R.S. § 13-1405, which provides that: “(A) A person commits sexual conduct with a minor by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person who is under eighteen years of age.” A.R.S. § 13-1405(A). Section 13-1405(B) provides in part that: “(B) Sexual conduct with a minor who is under fifteen years of age is a class 2 felony and is punishable pursuant to § 13-705.” A.R.S. § 13-1405(B). Oral sexual contact is defined as “oral contact with the penis, vulva or anus.” A.R.S. § 13-1401(A)(1). Sexual intercourse is defined as “penetration into the penis, vulva or anus by any part of the body or by any object or masturbatory contact with the penis or vulva.” A.R.S. § 13-1401(A)(4).

The crime defined under § 13-1405(A) requires that: (1) a person commit sexual conduct; (2) with a minor, that is, a person younger than 18. Section 13-1405(B) defines sexual conduct with a minor that is subject to enhanced punishment pursuant to the DCAC statute, § 13-705, as “sexual conduct with a minor who is under fifteen years of age.” On its face, section 13-1405(B) establishes the additional fact that a minor victim who is also younger than 15 subjects a perpetrator to a sentence under the DCAC. The Arizona Supreme Court in State v. Williams, however, concluded that “[i]t would not make sense if the youth of the victim both increased the degree of the felony and activated the special sentencing provisions of § 13-604.01 [now § 13-705], unless something more than the age of the victim is required by § 13-604.01 [now § 13-705].” 175 Ariz. 98, 102, 854 P.2d 131, 135 (1993). The Arizona Supreme Court concluded that to establish a crime is a DCAC, “the defendant's conduct must be focused on, directed against, aimed at, or target a victim under the age of fifteen.” Id. at 103, 854 P.2d at 136. The court reaffirmed this holding in State v. Sepahi, 206 Ariz. 321, 323, 78 P.3d 732, 734 (2003).

In Williams, the Arizona Supreme Court observed that “as a practical matter, the question of whether the child victim is the target of the defendant's criminal conduct will rarely be an issue given the nature of the crimes listed in § 13-604.01(K)(1)³” because “it is impossible to imagine how” crimes such as sexual assault, molestation, sexual conduct, and sexual abuse among others listed “could be committed without targeting persons.” Id. at 104, 854 P.2d at 137. The Arizona Supreme Court observed that the “issue we resolve only arises in that rare case when, as here, an enumerated offense can be committed by unfocused actions, whether intentional, knowing or reckless in nature.” Id.

3 Currently renumbered as A.R.S. § 13-705.

The Arizona Court of Appeals has relied on the reasoning in Williams in holding that state superior courts have not erred by imposing an enhanced sentence pursuant to § 13-705 without requiring a jury to expressly decide whether the defendant's conduct was “focused on, directed against, aimed at, or target[ed] a victim under the age of fifteen” because such targeting was: (1) “inherent in the elements of the offenses” of sexual conduct with a minor and molestation of a child (State v. Crews, No. 1 CA-CR 18-0060, 2019 WL 304131, at *3 (Ariz. App. Jan. 24, 2019), State v. Chavez-Tavena, No. 1 CA-CR 12-0750, 2014 WL 2548106, at *7 (Ariz. App. June 3, 2014)); (2) “inherent in the nature of' the crimes of sexual conduct with a minor and molestation of a child (State v. Javier Mora, No. 1 CA-CR 18-0332, 2019 WL 2394635, at *3 (Ariz. App. June 6, 2019)); or (3) an implicit finding where the jury “determined that [the defendant] knowingly possessed child pornography and that the children shown engaging in sexual conduct were under the age of fifteen” (State v. Coghill, 216 Ariz. 578, 590, 169 P.3d 942, 954 (App. 2007)). Similarly, the Arizona Court of Appeals has concluded that where a defendant has pleaded guilty to a crime subject to sentence enhancement under § 13-705, the elements of “underlying offenses” to which the defendant has pleaded guilty fall “within the conduct subject to enhanced punishment by the [DCAC] sentencing scheme[.]” State v. Moore, No.1 CA-CR 18-0639 PRPC, 2019 WL 470715, at *2 (Ariz. App. Feb. 7, 2019). The court of appeals made the same holding in Petitioner's case. (Doc. 9-3 at 97-98)

The District of Arizona addressed a § 2254 habeas corpus petition in which the petitioner challenged the constitutionality of his sentence and argued he was denied the Fourteenth Amendment right to due process when his sentence was enhanced pursuant to A.R.S. § 13-604.01 (now § 13-705) because the superior court failed to provide a factual basis for the “targeting element” of the DCAC sentencing enhancement. Jones v. Ryan, No. CV-13-00813-PHX-SRB (BSB), 2014 WL 2921865, at *5 (D. Ariz. June 27, 2014). The petitioner had pleaded guilty to counts of molestation of a child, attempted molestation of a child, and sexual abuse, each of which was charged as a dangerous crime against children. Id. at *2. The petitioner argued the sentencing court erred by applying the DCAC sentencing enhancement to his counts of conviction without making a factual finding that his conduct was “focused on, directed against, aimed at, or target[ed] a victim under the age of fifteen.” Id. at *12. The District Court concluded that even assuming the petitioner's claim was correct, any error was harmless and would not support habeas corpus relief. Id. at 13. The Court relied on the Arizona Supreme Court's statement in Williams that regarding the crimes of sexual molestation, sexual conduct, and sexual abuse, it was “impossible to imagine” how such crimes could be committed without targeting the victims. Id. at *14 (quoting Williams, 175 Ariz. at 104, 854 P.2d at 137).

The reasoning employed in Jones v. Ryan applies here as well. The charges in the indictment and those to which Petitioner pleaded guilty impliedly contain the element of intentional targeting, as the Arizona Supreme Court noted in Williams. The indictment “interpreted to include facts which are necessarily implied” provided Petitioner with constitutionally adequate notice. Berger, 473 F.3d at 1103.

Petitioner has failed to establish that the Arizona Court of Appeals' conclusion that “the [s]tate had provided constitutionally-adequate notice that he was charged with offenses designated as dangerous crimes against children and subject to sentencing enhancement” was either contrary to or an unreasonable application of clearly established Federal law or was based on an unreasonable determination of the facts in evidence. 28 U.S.C. § 2254(d).

2. Ground 2

As is discussed above in Section III(A)(1), Petitioner contends in Ground 2 that his due process rights under the Fourteenth Amendment were violated at his change of plea hearing when the superior court did not establish a factual basis for all essential elements of the charges to which he pleaded guilty. (Doc. 5 at 7) Petitioner asserts that the court established the facts that the victim was younger than fifteen and that a sexual act had occurred, but did not find facts to support the essential element that Petitioner had targeted the victim. (Id.) As noted, Respondents do not address this claim on the merits because they contend Petitioner failed to exhaust this claim, a position undersigned determines is not supported by the record.

At Petitioner's change of plea hearing conducted by the superior court on August 26, 2016, the court noted that the plea agreement anticipated Petitioner would plead guilty to four counts of attempted molestation of a child. (Doc. 9-3 at 126) The superior court ascertained that Petitioner understood that for each of the four counts he could be sentenced to a presumptive term of 10 years, a minimum term of 5 years and a maximum term of 15 years, and that probation would not be available on Count 1. (Id.) Petitioner stated he understood he could be eligible for probation up to lifetime terms on each of Counts 2 through 4. (Id. at 127) Petitioner's counsel put on the record that while the sentencing court was able under the plea agreement terms to impose prison sentences on Counts 2 through 4, the prosecution would not ask for imprisonment on those counts. (Id. at 129)

On Count 1, Petitioner admitted he had direct “hand-to-genital conduct when he masturbated the victim, who was under 15.” (Id. at 131) On Counts 2 through 4, Petitioner admitted he had over-the-clothing contact with the victim's genital area in March, April, and June 2015 and that the victim was 13 during all four of the charged offenses. (Id.) At no point during the change of plea hearing or at sentencing did Petitioner or his defense counsel claim that Petitioner's sexual contacts with the victim were anything less than intentional acts. As the Arizona courts have repeatedly recognized, the DCAC to which Petitioner pleaded guilty inherently or impliedly include a targeting element. In habeas review, federal courts defer to state courts on questions of state law. Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“We have repeatedly held that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus”). Thus, when the superior court elicited Petitioner's testimony that he had hand-to-genital conduct when he masturbated the victim, whom he knew was younger than 15, and admitted he had over-the-clothing contact with the victim's genital area, this established a factual basis for all essential elements of the charges to which he pleaded guilty, including the element that Petitioner had targeted the victim.

The Arizona Court of Appeals recognized that Petitioner had admitted to “repeatedly attempting to molest a child” younger than 15 and had therefore “specifically targeted a child for the purpose of sexual activity. Therefore, the underlying offenses clearly fall within the conduct subject to enhanced punishment by the [DCAC] sentencing scheme [and] the sentence is supported by a sufficient factual basis.” (Doc. 9-3 at 97-98) Petitioner has not shown that the Arizona Court of Appeals' decision was an unreasonable application of or contrary to clearly established Federal law or was based on an unreasonable determination of the facts in the record.

3. Ground 3a

Petitioner's Ground 3a claim is that he did not enter into the plea agreement knowingly and intelligently because “neither [Petitioner's] plea nor the law makes clear what constitutes a DCAC crime.” (Doc. 5 at 8) In his Reply, Petitioner asserts that because the Arizona Supreme Court has “removed” the enhanced sentence in several cases, this establishes that “application of A.R.S. § 13-705 . . . [is] discretionary.” (Doc. 12 at 31)

In his petition for review filed in the Arizona Court of Appeals, Petitioner asserted that “since it is unclear what element activates the DCAC enhancement, [Petitioner's] plea could not have been voluntary.” (Doc. 9-3 at 90) In its memorandum decision granting review but denying relief, the Arizona Court of Appeals rejected Petitioner's claim and concluded that “the [s]tate provided constitutionally-adequate notice that he was charged with offenses designated as [DCAC] and subject to sentencing enhancement.” (Id. at 97) As is addressed below, Petitioner's arguments fail to demonstrate he is entitled to habeas relief on his Ground 3 a claim.

a. Whether § 13-705 is discretionary

Petitioner cites Arizona Supreme Court opinions in support of his argument that the application of § 13-705 is discretionary, including State v. Williams, State v. Bartlett, 164 Ariz. 229, 792 P.2d 692 (1990) (“Bartlett I”), State v. Bartlett, 171 Ariz. 302, 830 P.2d 823 (1992) (“Bartlett II”), and State v. Davis, 206 Ariz. 377, 79 P.3d 64 (2003). (Id.) A discussion of each of these cases follows.

In Williams, the Arizona Supreme Court held that the defendant had not committed a DCAC where, although he drove his “pickup truck in an extremely dangerous and aggressive manner” and collided with a station wagon in which a child younger than fifteen was a passenger and the child was injured, the defendant's behavior was not targeted, directed or focused on the child victim whose presence in the station wagon the defendant was apparently unaware. 175 Ariz. at 104, 854 P.2d at 137.

In Bartlett I, the sentencing court imposed the minimum mandatory sentence on each count of sexual conduct with a minor under fifteen pursuant to the DCAC statute. 164 Ariz. 229, 231, 792 P.2d 692, 694 (1990), vacated, Arizona v. Bartlett, 501 U.S. 1246 (1991). The Arizona Court of Appeals rejected the defendant's argument that his combined sentence of 40 years' imprisonment that resulted from mandatory sentencing under the DCAC statute violated the constitutional protection against cruel and unusual punishment. Id. at 232, 854 P.2d at 695. On review, however, the Arizona Supreme Court concluded that the mandatory minimum sentences under the DCAC statute as applied to the defendant's and his victims' circumstances were disproportionate to the severity of the crimes. Id. at 236, 241, 854 P.2d at 699, 704. The Arizona Supreme Court neither invalidated the defendant's convictions nor held the sentencing provisions of the DCAC unconstitutional “as applied to other defendants under different circumstances.” Id. The United States Supreme Court granted certiorari, vacated the judgment, and remanded the case to the Arizona Supreme Court for consideration under Harmelin v. Michigan, 501 U.S. 957 (1991). Arizona v. Bartlett, 501 U.S. 1246 (1991).

Faced with a fractured United States Supreme Court ruling in Harmelin in which there was no majority opinion on how to apply the proportionality principle, the Arizona Supreme Court again concluded that the original sentence imposed was grossly disproportionate to the severity of the defendant's crimes. Bartlett II, 171 Ariz. at 307, 830 P.2d at 828. The Arizona Supreme Court noted that: the two children with whom the defendant engaged in sexual intercourse were willing participants in the defendant's conduct; the defendant had no prior record; “sexual conduct among post-pubescent teenagers is not uncommon”; and that societal standards had changed such that “the modern trend in the law has been to separate the crime of statutory rape from other violent forms of rape, and concomitantly to reduce the severity of the sentence.” Id. at 307-08, 830 P.2d at 828-29. The state supreme court applied “the limited proportionality analysis and principle articulated in Justice Kennedy's concurring opinion in Hamelin. Id. at 311, 830 P.2d at 832. The court noted that the superior court had resentenced the defendant to concurrent sentences with the longest sentence being seven years. Id. Because the defendant had not challenged that sentence, the court permitted the sentence to stand and did not remand for resentencing. Id.

Subsequently, in State v. Davis, the Arizona Supreme Court held that “sentencing a twenty-year-old to a mandatory minimum sentence of fifty-two years without the possibility of parole for having voluntary sex with two post-pubescent teenage girls [was] so grossly disproportionate to the crime as to violate the Eighth Amendment's prohibition against cruel and unusual punishment.” Davis, 206 Ariz. 377, 379, 79 P.3d 64, 66 (2003). After trial where the defendant was convicted on four counts of sexual conduct with a minor, the superior court sentenced the defendant to 52 years in prison consistent with the statutory requirements.⁴ Id. at 380, 79 P.3d at 67. The Arizona Supreme Court discussed its earlier decisions in comparable cases including Bartlett I, Bartlett II, and State v. DePiano, 187 Ariz. 27, 926 P.2d 494 (1996), in which a three-justice majority held that the proper measure of disproportionality should be based on the nature of the crime rather than on the circumstances or facts in any particular case. Id. at 381-84, 79 P.3d at 68-71. The Davis court noted that Bartlett I had presented “exceedingly rare” circumstances in which “the application of the provisions of the [DCAC] Act rendered the sentence unconstitutionally long.” Id. at 382, 79 P.3d at 69.

4 The probation officer opined that the mandatory sentence was not warranted, the prosecutor recommended a mitigated sentence, and the superior court entered an order allowing the defendant to petition the Board of Executive Clemency for a commutation of sentence within 90 days of sentencing.

In Davis, the Arizona Supreme Court relied on the United States Supreme Court opinions in Lockyer v. Andrade, 538 U.S. 63 (2003) and Ewing v. California, 538 U.S. 11 (2003) to conclude that an Eighth Amendment proportionality review could include an examination of the specific facts and circumstances presented in the commission of a defendant's crime. Id. at 383-84, 79 P.3d at 70-71. Additionally, the state supreme court indicated that A.R.S. § 13-4037(B) imposed a duty on a court finding a sentence to be excessive “to review the circumstances of the case to determine whether the sentence imposed is in fact unwarranted.” Id. at 384, 79 P.3d at 384. The Arizona Supreme Court expressly overruled its opinion in DePiano. Id.

The Arizona Supreme Court observed that:

Like Bartlett, Davis was caught in the very broad sweep of the governing statute, which makes any sexual conduct with a person younger than fifteen years old by a person older than eighteen years old a “dangerous crime against children, ” whether the offense is a rape-incest by a step-parent who forces sex on a trusting ward or a pedophile who uncontrollably preys upon young children, see State v. Taylor, 160 Ariz. 415, 773 P.2d 974 (1989), or the more benign boyfriend-girlfriend situation in which one party is older than eighteen and the other younger than fifteen.

Id. at 385, 79 P.3d at 385. The Davis court assessed whether an inference of gross disproportionality could be drawn and conducted an intra- and inter-jurisdictional analysis of sentencing within Arizona and between Arizona and other states. Id. at 384-87, 79 P.3d at 71-74. After also considering the impact of mandatory consecutive sentences in the defendant's case, the court, while recognizing the defendant had “committed crimes worthy of severe punishment, ” found that “application of the mandatory sentencing provisions of the [DCAC] Act creates an unconstitutionally disproportionate punishment in light of the specific facts and circumstances of Davis's offenses.” Id. at 388, 79 P.3d at 75. As in Bartlett I, the court emphasized that its conclusion that the defendant's sentence violated the Eighth Amendment's prohibition against grossly disproportionate punishments was isolated to the facts and circumstances presented in the defendant's specific case. Id. The court vacated the defendant's conviction on one count, affirmed the rest of his convictions, vacated his sentences, and remanded the case to the superior court for retrial and sentencing without application of the DCAC mandatory sentencing requirements. Id. at 391, 79 P.3d at 78.

None of the above-discussed cases cited by Petitioner support his contention that the DCAC sentencing statute is discretionary rather than mandatory. Instead, the cases indicate that in exceedingly rare circumstances, a defendant may be able to establish his sentence imposed pursuant to A.R.S. § 13-705 is grossly disproportionate to the crime committed. Indeed, the Arizona Supreme Court has explained that the DCAC sentencing statute “requires enhanced penalties for persons convicted of a ‘dangerous crime against children.' The statute defines such a crime as one of fifteen enumerated offenses ‘that is committed against a minor who is under fifteen years of age.' A.R.S. § 13-604.01(L)(1).” Sepahi, 206 Ariz. at 322, 78 P.3d at 733 (emphasis supplied); see also Davis, 206 Ariz. at 381, 79 P.3d at 68 and Bartlett 1, 164 Ariz. at 230-42, 792 P.2d at 693-705 (in which the Arizona Supreme Court repeatedly described the DCAC sentencing statute as requiring mandatory sentences). Among the fifteen enumerated offenses are the two charges in Petitioner's indictment, sexual conduct with a minor, and continuous sexual abuse of a child (A.R.S. § 13-705(Q)(1)(e)&(n)), and the four charges in the amended indictment to which Petitioner agreed to plead guilty, each for attempted molestation of a child (A.R.S. § 13-705(Q)(1)(d)).

Moreover, it cannot reasonably be argued that Petitioner's sentencing pursuant to his plea agreement to 10 years of imprisonment on one count and lifetime probation on the remaining three counts of attempted molestation of a child, where the victim was 13 years old and when Petitioner was in a position of trust to the victim, was “cruel and unusual in light of the specific facts and circumstances[.]” Davis, 206 Ariz. at 388, 79 P.3d at 388.

Further, Petitioner appears to mistakenly conclude that because Arizona courts refer to the sentencing ranges required under the DCAC sentencing statute as “enhanced, ” this means the DCAC sentencing scheme provides an “alternative” range of sentences for certain crimes. (Doc. 12 at 31) Petitioner further argues that “the state has made available two sentencing schemes but they left it vague as to how to apply § 13-705.” (Id. at 36) Petitioner fails to show that at any point in the prosecution of his case he was subject to two sentencing schemes.

Petitioner further contends that the statute defining the crime on which he was indicted under Count I, A.R.S. § 14055, contains improper superfluous language unless the “legislature intended two sentencing ranges to be available depending on the circumstances in each case.” (Doc. 12 at 33) Section 1405 defines the crime of sexual conduct with a minor, providing:

A. A person commits sexual conduct with a minor by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person who is under eighteen years of age.

B. Sexual conduct with a minor who is under fifteen years of age is a class 2 felony and is punishable pursuant to § 13-705. Sexual conduct with a minor who is at least fifteen years of age is a class 6 felony. Sexual conduct with a minor who is at least fifteen years of age is a class 2 felony if the person is or was in a position of trust and the convicted person is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as specifically authorized by § 31-233, subsection A or B until the sentence imposed has been served or commuted.

A.R.S. § 13-1405 (eff. July 3, 2015). Petitioner's argument was settled by the Arizona Court of Appeals in Williams. As is discussed above, the Williams court concluded that the DCAC⁵

5 As noted, Petitioner pleaded guilty to four counts of Attempted Molestation of a Child in violation of A.R.S. §§ 13-1410, 13-1001, and 13-705. (Doc. 9-1 at 5)

A valid guilty plea is one that is “voluntary and intelligent.” See Brady v. UnitedStates, 397 U.S. 742, 748 (1970); McMann v. Richardson, 397 U.S. 759, 766 (1970); Boykin, 395 U.S. at 242. In Boykin, the Supreme Court held that a knowing and voluntary guilty plea must include an explicit waiver by the criminal defendant of his constitutional rights against self-incrimination, right to trial by jury, and right of confrontation. Id. at 24243. In Brady, the Supreme Court clarified Boykin by stating, “[t]he new element added in sentencing scheme requires an element in addition to the age of the victim, that is, that the minor victim was targeted by the defendant. 175 Ariz. at 102-104, 854 P.2d at 135-137. As noted, the Williams court further concluded that regarding crimes such as those on which Petitioner was charged and to which he pleaded guilty, the question of targeting would “rarely be an issue.” Id. at 104, 854 P.2d at 137.

Petitioner fails to establish that application of the DCAC sentencing scheme is discretionary or that two alternative sentencing schemes were available to the superior court based on Petitioner's plea agreement.

b. Voluntariness of plea

Petitioner also argues his plea was not voluntary because he did not possess a full understanding either of the charges to which he pleaded guilty or of the related law. (Doc. 12 at 36-40) Petitioner asserts that he did not understand that the charge of sexual conduct with a minor was different than a charge of sexual conduct with a minor which was additionally a DCAC. (Id. at 38) He claims that while his indictment referred to § 13-705, neither the indictment nor that statute informed him of “what element [he] needed to defend against.” (Id.) Petitioner contends that he agreed to enter the plea agreement and subject himself to the sentencing ranges defined in § 13-705 on the assumption that this statute “applies every time the victim is under fifteen and one of the enumerated crimes has been committed.” (Id.) Further, Petitioner states that the necessary understanding of the relevant law must be more than understanding the range of sentencing he will be subject to. (Id.) Petitioner relies in support of his voluntariness argument on Boykin v. Alabama, 395 U.S. 238 (1969). Boykin was the requirement that the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily.” 397 U.S. at 747-48 fn. 4. In North Carolina v. Alford, 400 U.S. 25, 31 (1970), the Supreme Court explained that in determining the validity of guilty pleas the “standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.”

“A plea is not voluntary ‘unless the defendant received real notice of the true nature of the charge against him . . . .'” Bargas v. Burns, 179 F.3d 1207, 1215 (9th Cir. 1999) (quoting Henderson v. Morgan, 426 U.S. 637, 644 (1976) (citation and internal quotation marks omitted)). Further, a plea is “‘unintelligent' if the defendant is without the information necessary to assess ... ‘the advantages and disadvantages of a trial as compared with those attending a plea of guilty.'” United States v. Hernandez, 203 F.3d 614, 619 (9th Cir. 2000), overruled on other grounds by Indiana v. Edwards, 554 U.S. 164 (2008) (quoting Hill v. Lockhart, 474 U.S. 52, 56 (1985)).

Paragraph 1 of the plea agreement provided that for Counts 1 through 4, each of which charged attempted molestation of a child, “[p]ursuant to A.R.S. § 13-705, each of these dangerous crimes against children carries a presumptive sentence of 10 years; a minimum sentence of 5 years; and a maximum sentence of 15 years.” (Doc. 9-1 at 6 (emphasis in original)) Petitioner initialed each page of the plea agreement and signed the last page indicating he had read and approved of all the paragraphs within the agreement, “both individually and as a total binding agreement.” (Id. at 11)

At Petitioner's change of plea hearing, Petitioner confirmed he had read and understood the entire written plea agreement. (Doc. 9-3 at 123-124) Petitioner acknowledged that by entering into the plea agreement he was waiving specific constitutional rights including the right after conviction and before sentencing to require the prosecution to prove aggravating factors “to the jury's satisfaction beyond a reasonable doubt.” (Id. at 124) Petitioner affirmed he was pleading guilty to four counts of attempted molestation of a child, each in violation of A.R.S. sections 13-1410, 13-1001, and 13-705, each a dangerous crime against children. (Id. at 126) Petitioner stated he understood that for each of the four offenses, he could be imprisoned, that the presumptive term for each was 10 years, the minimum term was 5 years, and the maximum term was 15 years, and that probation was not available on Count 1 pursuant to the agreement terms. (Id. at 126-127) Petitioner pleaded guilty to all four counts. As noted above in Section III(D)(2), with respect to Count 1, Petitioner admitted he had direct “hand-to-genital conduct when he masturbated the victim, who was under 15.” (Id. at 131) Respecting Counts 2 through 4, Petitioner admitted he had over-the-clothing contact with the victim's genital area in March, April, and June 2015 and that the victim was 13 during all four of the charged offenses. (Id. at 131-132) Petitioner stated that he knew or had reason to know the victim was younger than 15. (Id. at 132) The court found the plea was entered into knowingly, intelligently, and voluntarily and that there was a factual basis for it. (Id. at 133)

c. Conclusion

As is discussed above, under Arizona law a DCAC conviction requires a sentence under the DCAC sentencing scheme. Further, at Petitioner's change of plea hearing and within his plea agreement, the record shows that Petitioner explicitly waived his rights against self-incrimination, right to trial by jury, and right of confrontation. Additionally, Petitioner was made aware and acknowledged he was pleading guilty to four charges that were each a dangerous crime against children. Petitioner has not established that he did not enter his plea understandingly and voluntarily, or that the Arizona Court of Appeals' conclusion to that effect was an unreasonable application of or contrary to clearly established Federal law or was based on an unreasonable determination of the facts in the record.

4. Ground 3 b

In Ground 3b, Petitioner asserts that his plea could not have been made intelligently because the plea was “worse than a loss at trial.” (Doc. 5 at 8) In his petition for review to the Arizona Court of Appeals in his PCR action, Petitioner declared that “[a]ny sane person would go to trial when the max sentence was 46 years less than the plea.” (Doc. 9-3 at 80 (emphasis in original)) Respondents note that the Arizona Court of Appeals did not address this claim, either to find it waived for failure to assert it in the trial court, or to address its merits. Respondents argue the claim fails on the merits.

When a state court provides no rationale for its decision, the federal habeas court independently reviews the record to assess whether the state court decision was objectively unreasonable under controlling federal law. Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); see also Harrington v. Richter, 562 U.S. at 98 (holding that a state court decision that did not provide reasons is still on the merits and entitled to AEDPA deference and the habeas petitioner still bears the burden of “showing there was no reasonable basis for the state court to deny relief.”). Thus, although the record is reviewed independently, the federal court nevertheless defers to the state court's ultimate decision. Himes, 336 F.3d at 853.

Undersigned concludes that a more realistic assessment of the record than Petitioner's indicates there were substantial likely potential benefits from his acceptance of the plea. Under his plea agreement, Petitioner faced a maximum sentence of 60 years if he were given the maximum allowable term of 15 years imprisonment on each of the four counts of Attempted Molestation of a Child. (Doc. 9-1 at 6) If he were given the minimum sentence on all four counts pursuant to his plea, he faced 20 years of imprisonment. (Id.) Without a plea, the maximum sentence on the two charges in Petitioner's indictment would have totaled 54 years, while the minimum would have been 26 years. A.R.S. § 13-705(C). As Respondents note, Petitioner would not have been eligible for probation if he had been convicted of the two indicted charges. A.R.S. § 13-705(C), (H), (O). Additionally, the sentencing court was advised by defense counsel at Petitioner's change of plea hearing that the prosecution would only recommend imprisonment on Count 1 and would not ask for prison sentences on Counts 2 through 4. (Doc. 9-3 at 129) Accordingly, under the plea offer which specified attempted crimes and the possibility of probation of three of the four counts, there was a reasonable likelihood that Petitioner would receive a sentence of no greater than a 15-year sentence of imprisonment on Count 1 followed by lifetime probation on Counts 2 through 4 of the amended indictment. Given the strength of the prosecution's case, including the fact that Petitioner had self-disclosed his activities with the victim, it is reasonable to assume there was a significant possibility he would have been convicted on the two charges of the indictment, which would have exposed him to minimum terms of 13 years, to presumptive terms of 20 years, or to maximum terms of 27 years of imprisonment on each count without the chance to receive probation instead of imprisonment. Although Petitioner claims that the charges of his indictment were merely eligible for enhancement as a DCAC, he was charged on both counts as having committed dangerous crimes against children pursuant to § 13-705. (Doc. 9-1 at 3) As is discussed in Section III(D)(3)(a), the DCAC sentencing scheme is not optional/discretionary under Arizona law.

Petitioner claims in his Reply that his plea agreement “grossly enhanced increasing both the minimum and maximum sentence compared to losing at trial.” (Doc. 12 at 40) Petitioner asserts that his plea was unintelligent in violation of Federal Rule of Criminal Procedure 11(b)(1). (Id.) Rule 11(b)(1) governs the requirements for federal courts advising and questioning a defendant while considering and before accepting a defendant's plea of guilt or nolo contendere. Rule 11(b)(1) is binding on “all criminal proceedings in the United States district courts, the United States courts of appeals, and the Supreme Court of the United States, ” but Rule 11 does not govern state court proceedings. Fed. R. Crim. P. 1 (a)(1). Because Petitioner pleaded guilty in state court and Federal Rule of Criminal Procedure 11 only applies in federal court proceedings, Rule 11 is not applicable here.⁶

6 Petitioner mistakenly asserts that the United States Supreme Court made Federal Rule of Criminal Procedure 11 applicable to the states in Boykin v. Alabama, 395 U.S. at 245. Petitioner cites to a dissenting minority opinion in that case. The opinion of the Court instead expressly stated that Rule 11 applies in the “federal regime.” 395 U.S. at 243 n.5.

Petitioner reasserts his inaccurate claim that his plea could not be made intelligently because he was unaware that a charge as a DCAC was not mandated by law and that he could have been tried under charges carrying much lesser sentencing exposure. (Doc. 12 at 40) A plea is unintelligent if the defendant is without the information necessary to assess the advantages and disadvantages of a trial as compared to entering a guilty plea. Hill, 474 U.S. at 56. The representations made by a defendant at the plea hearing carry a “strong presumption of verity” and “constitute a formidable barrier” to a defendant challenging the voluntariness of the plea in a collateral proceeding. Blackledge v. Allison, 431 U.S. 63, 74 (1977). Here, Petitioner had the necessary accurate information needed to properly assess his decision on whether to accept a plea. Both the indictment and the amended indictment on which his plea was based properly charged him under Arizona law with DCAC.

Petitioner has failed to establish that the state court's adjudication of his Ground 3b challenge to his guilty plea was either contrary to, or an unreasonable application of relevant federal law. Further, Petitioner has not demonstrated that the state court's adjudication of Ground 3b was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding.

Therefore, for the reasons stated above, undersigned recommends the Court find that habeas relief should be denied as to Ground 3b.

5. Grounds 4a and 4b

In Ground 4a, Petitioner asserts he was imprisoned under an unconstitutional statute, A.R.S. § 13-3961(A), and was not given an “adversarial hearing required by state law” in violation of due process under the Fourteenth Amendment. (Doc. 5 at 9) He states that this statute later was ruled unconstitutional on due process grounds. (Id.) Petitioner's Ground 4b claim is that his detention prior to trial violated his Fourteenth Amendment due process rights and stripped the state of its jurisdiction to prosecute him. (Doc. 5 at 9)

Petitioner asserted in his pro per PCR petition that his federal constitutional rights were violated at his initial appearance when the judge relied on A.R.S. § 13-3961(A) to deny him bail. (Doc. 9-1 at 31) He concluded that his detainment became punishment and denied him due process. (Id. at 34) The superior court stated that Petitioner's guilty plea waived his “non-jurisdictional defenses and claims.” (Doc. 9-3 at 69) Although Petitioner asserted his Ground 4a and 4b claims in his petition for review (Id. at 86), the Arizona Court of Appeals did not specifically address the claims. (Id. at 93-98)

At the time Petitioner was charged in 2016, Arizona Revised Statutes section 13 3961(A) (3) required that “[a] person who is in custody shall not be admitted to bail if the proof is evident or the presumption great that the person is guilty of the offense charged and the offense charged is one of the following: . . . (3) Sexual conduct with a minor who is under fifteen years of age.” A.R.S. § 13-3961(A)(3) (effective 2011). The Arizona Supreme Court in Simpson v. Miller (Simpson II) held in February 2017 that “the provisions of article 2, section 22(A) of the Arizona Constitution and A.R.S. § 13-3961(A)(3), categorically denying bail for all persons charged with sexual conduct with a minor, are unconstitutional on their face.” 241 Ariz. 341, 349-50, 387 P.3d 1270, 1278-79 (2017). However, the Simpson II court noted that after it had granted review, the named petitioner had accepted a plea agreement, which rendered his case moot. 241 Ariz. at 244, 387 P.3d at 1273. The court focused its analysis instead on the case of his co-petitioner who had not pleaded guilty. Likewise, inMorreno v. Brickner, 243 Ariz. 543, 416 P.3d 807 (2018), the Arizona Supreme Court addressed a challenge to the Arizona Constitution similar to that resolved in Simpson II. The court noted that it considered only a facial challenge to the provision because the petitioner had entered a plea agreement, which “render[ed] moot” any challenge to the provision as applied to the petitioner. 243 Ariz. at 546, 416 P.3d at 810. Similarly, in State v. Wein, the Arizona Supreme Court addressed the question of whether sexual assault remained a non-bailable offense after Simpson II. 244 Ariz. 22, 417 P.3d 787 (2018). The court observed that the real party in interest had pleaded guilty and was sentenced while the case was pending, so that the case was moot as to him, but explained it would “nevertheless decide the issue because it is capable of repetition yet could evade review due to the temporary duration of pretrial detention.” 244 Ariz. at 26, 417 P.3d at 791. Accordingly, even if Petitioner had been refused bail after the Simpson II ruling, the fact that he later agreed to plead guilty would have mooted any challenge he could have asserted to the denial of bail, consistent with the state supreme court holdings in Simpson II, Morreno, and Wein, which addressed that precise circumstance.

The United States Supreme Court has instructed that “[a] valid guilty plea also renders irrelevant-and thereby prevents the defendant from appealing-the constitutionality of case-related government conduct that takes place before the plea is entered.” Class v. United States, U.S., 138 S.Ct. 798, 805 (2018). The District of Arizona recently held that a petitioner's guilty plea to a count of child abuse in Maricopa County Superior Court had “waive[d] his right to challenge the lack of a [bond] hearing, because any claim of a constitutional violation due to absence of such a hearing was forfeited once [the petitioner] pled guilty.” Lewis v. Ryan, No. CV-18-04922-PHX-DLR (MTM), 2020 WL 6550471, at *7 (D. Ariz. Sept. 9, 2020) (citing Class, 138 S.Ct. at 805).

As the United States Supreme Court explained in Tollett v. Henderson, 411 U.S. 258, 267 (1973):

a guilty plea represents a break in the chain of events which preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea . . ..

The Supreme Court expanded this rule in United States v. Broce, 488 U.S. 563, 569 (1989), stating that:

[a] plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence. Accordingly, when the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary. If the answer is in the affirmative, then the conviction and the plea, as a general rule, foreclose the collateral attack. There are exceptions where on the face of the record the court had no power to enter the conviction or impose the sentence.

Id. at 569.

The last reasoned decision on this issue was that of the superior court. Citing Arizona case law, the court explained that “by pleading guilty, [Petitioner] waives his right to complain of any irregularities occurring during the preliminary stages of the proceedings . . . [and that the waiver] extends to complaints of due process violations.” (Doc. 9-3 at 69) The superior court's decision is not contrary to clearly established law. Further, Petitioner's plea was counseled, voluntary, and knowing. As a result, the superior court's holding that Petitioner waived his right to raise the claims he asserts in Ground 4 by pleading guilty constituted a reasonable application of clearly established federal law as set forth in Tollettand Broce. Accordingly, Petitioner is not entitled to federal habeas relief for his Ground 4 claims.

6. Grounds 5a and 5c

Petitioner argues in Ground 5a that his trial counsel provided IAC because counsel “did not know there was an enhanced crime different from the lesser included [offense] [Petitioner] was indicted on. [Trial counsel] assumed all child sex offenses (the lesser included) were always the higher sentencing range.” (Doc. 5 at 10) Petitioner's Ground 5c claim is that his defense counsel Brian Strong provided IAC by not objecting at Petitioner's change of plea hearing “when a fact was not held to uphold the enhanced conviction.” (Id.)

On Petitioner's claims of IAC by his trial attorney, the superior court in Petitioner's PCR action summarily concluded that although Petitioner had communicated “dissatisfaction with counsel” he had failed to “establish that counsel's performance fell below prevailing professional norms.” (Doc. 9-3 at 69) On petition for review, the Arizona Court of Appeals set forth the Strickland standard and concluded that Petitioner's trial counsel “was not deficient by failing to object to the enhanced sentence imposed.” (Id. at 98)

In his Reply, Petitioner states that his trial counsel “was ineffective for failing to object to a sentence that was unsupported by fact because [counsel] was ignorant of the law.” (Doc. 12 at 56) Petitioner concludes that his trial counsel should have known that “there is a difference between sexual conduct with a minor and sexual conduct with a minor [which is] a [DCAC].” (Id.) Petitioner asserts that if his trial counsel had understood this distinction, he would have objected to the sentence Petitioner was given under the DCAC sentencing scheme. (Id. at 57-58)

Petitioner's argument is based on a self-serving view of what he thinks the law is rather than what the law actually provides. As is discussed above in Section III(D)(3), the application of the DCAC sentencing scheme is not discretionary. Further, at his change of plea hearing, Petitioner both affirmed that he was pleading guilty to DCAC and was subject to the range of sentences set forth in the DCAC sentencing scheme, and also admitted to conduct and knowledge of the victim's age that provided the factual basis for the required elements of the charged crimes. Under these circumstances it is plain that Petitioner has failed to establish that his trial counsel's representation “fell below an objective standard of reasonableness” Strickland, 466 U.S. at 688, or that the Arizona Court of Appeals' holding that defense counsel was not deficient by failing to object to Petitioner's sentence was either an unreasonable application of Strickland and its progeny or an unreasonable determination of the facts in light of the evidence presented, 28 U.S.C. § 2254(d).

7. Ground 5b

In Ground 5b, Petitioner contends his trial counsel provided IAC when counsel “pushed a plea that contained an enhancement. That plea carried a presumptive of 40 years while trial's presumptive was 10 years.” (Doc. 5 at 10) In his Reply, Petitioner asserts that his position was worse under his plea agreement than it would have been if he had gone to trial and that his trial counsel was ineffective for not knowing this. (Doc. 12 at 57)

On petition for review, the Arizona Court of Appeals noted that Petitioner had alleged ineffective assistance of counsel for encouraging him to accept the plea offer, which was based on the DCAC sentencing scheme. (Doc. 9-3 at 95) As discussed, the court of appeals mistakenly concluded Petitioner had waived the claim related to the plea offer by not raising it in his petition for review (Id.) although Petitioner had in fact done so (Id. at 73).

As is discussed in detail above in Section III(D)(4) addressing the merits of Petitioner's Ground 3b claim, Petitioner is incorrect that the DCAC sentencing scheme was not mandatory in his case and that his chances at trial were more favorable than accepting the plea offer. Petitioner has failed to show that his counsel was ignorant of any law pertinent to counsel's advice relative to the plea offer, or to establish that the plea offer placed him at a disadvantage compared to proceeding to trial on the charges in the indictment.

If the Court were to consider Petitioner's argument under de novo review because the Arizona Court of Appeals failed to address this IAC claim on petition for review, the claim fails. Similarly, if the Court considers the superior court's ruling that Petitioner did not establish his trial counsel's performance fell below prevailing professional norms as the last reasoned decision on the claim, Petitioner has failed to establish that the superior court's ruling was an unreasonable application of Strickland and its progeny or was based on an unreasonable determination of the facts given the evidence provided in the state courts. 28 U.S.C. § 2254(d).

8. Grounds 5d and 5e

In Ground 5d, Petitioner asserts that his trial counsel “failed to defend [Petitioner's] right to due process in the pretrial stages of this case, ” referring to Petitioner's argument that his counsel should have challenged Petitioner's detention without a bond hearing. (Doc. 5 at 10) Petitioner's Ground 5e claim is that “[w]hen he asked about the correctness of being denied bond, counsel refused to seek the required adversarial hearing.” (Id.) Petitioner refers to his argument under Ground 4 that his detention without a bond hearing was unconstitutional and concludes simply that his trial counsel “should have known the law and defended [Petitioner's] rights.” (Doc. 12 at 58)

In Petitioner's pro per PCR action, the superior court concluded that Petitioner's plea waived “all non-jurisdictional defenses and claims[, ]” including “complaints of due process violations” but also stated that Petitioner had failed to establish his counsel's “performance fell below prevailing professional norms.” (Doc. 9-3 at 69) On petition for review, the court of appeals did not rule on Petitioner's IAC claim that defense counsel did not challenge the absence of a bond hearing.

As an initial matter, Petitioner was detained without a bond hearing pursuant to A.R.S. § 13-3961 in January 2016. (Doc. 9-1 at 59) He was sentenced in September 2016. (Doc. 9-1 at 15-18) It was not until February 2017 that the Arizona Supreme Court decided that § 13-3961(A)(3) violated the due process protections of the U.S. Constitution. Simpson II, 241 Ariz. 341, 387 P.3d 1270 (2017). Petitioner offers no support for his conclusion that his trial counsel did not know the law. Although Petitioner refers to his arguments regarding Ground 4 “concerning pretrial incarceration, the right to a bond hearing, and the prejudice that results from unlawful detainment” (Doc. 12 at 58), he does not establish that his counsel's performance was objectively deficient and that the deficient representation caused him prejudice. Strickland, 466 U.S. at 687.

If the Court considers Petitioner's argument under de novo review because the Arizona Court of Appeals failed to address this IAC claim on petition for review, the claim fails. Likewise, if the Court considers the superior court's ruling that Petitioner did not establish his counsel's performance fell below prevailing professional norms as the last reasoned decision on the claim, Petitioner has not established that the superior court's ruling was an unreasonable application of Strickland and its progeny or was based on an unreasonable determination of the facts given the evidence provided in the state courts. 28 U.S.C. § 2254(d).

9. Ground 6

In Ground 6, Petitioner argues his rights pursuant to Anders v. California, 386 U.S. 738 (1967), were violated because the superior court failed to conduct a review for fundamental error during Petitioner's PCR proceedings. (Doc. 5 at 11) Respondents' minimal discussion of this argument merely asserts that the Arizona Court of Appeals addressed the merits of the claim and rejected it, concluding that Arizona's Rule 32 procedure did not require the state court to conduct a review for fundamental error. (Doc. 9 at 29) In his Reply, Petitioner explains that his claim is based on the United States Supreme Court opinions in Anders and Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). (Doc. 12 at 59-62) For the reasons explained below, undersigned recommends that the Court deny Petitioner's Ground 6 claim.

District Judge Campbell in Pacheco v. Ryan, No. CV-15-02264-PHX-DGC, 2016 WL 7407242 (Dec. 22, 2016) provided a succinct summary of the Anders case: ...

In Anders, the Supreme Court held that, “in order to protect indigent defendants' constitutional right to appellate counsel, courts must safeguard against the risk of granting such requests in cases where the appeal is not actually frivolous.” Id. (citingAnders, 386 U.S. at 740). As a result, “counsel could not withdraw by simply advising the court of his or her conclusion, but must include with the request to withdraw ‘a brief referring to anything in the record that might arguably support the appeal.'” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 430 (1988).

Once the appellate court receives this brief, it must then itself conduct a full examination of all the proceeding[s] to decide whether the case is wholly frivolous. Only after this separate inquiry, and only after the appellate court finds no nonfrivolous issue for appeal, may the court proceed to consider the appeal on the merits without the assistance of counsel.

Penson v. Ohio, 488 U.S. 75, 80 (1988) (quotation marks and citation omitted).

“The Anders requirement assures that indigent defendants have the benefit of what wealthy defendants are able to acquire by purchase - a diligent and thorough review of the record and an identification of any arguable issues revealed by that review.” McCoy, 486 U.S. at 439.

2016 WL 7407242, at **2-3.

In Smith v. Robbins, the Supreme Court clarified that the procedure described in Anders was not the “only prophylactic framework that could adequately vindicate [the constitutional right to appellate counsel announced in Douglas v. California, 372 U.S. 353 (1963)].” 528 U.S. 259, 273 (2000) (emphasis in original). Instead, the Supreme Court concluded that the Anders procedure was “merely one method of satisfying the requirements of the Constitution for indigent criminal appeals.” Id. at 276. The Supreme Court expressed confidence that states could establish procedures comparable to the Anders procedure and affirmed that the Constitution did not bar them from doing so. Id. The Supreme Court found the California Anders-like procedure adequate in that it required both appointed counsel and the court “to find the appeal to be lacking in arguable issues, which is to say, frivolous.” Id. at 280.

In recent years, District of Arizona judges have issued several unpublished orders conditionally granting habeas relief to petitioners based on findings that the state courts failed to provide Anders protections to petitioners in of-right PCR proceedings.⁷ Decisions by other District of Arizona judges may be persuasive, but not binding, authority on the Court. Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011) (‘“A decision of a federal district court judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case.'”).

7 These are cases wherein the petitioner's pleaded guilty in the trial court. ^[8] Petitioner refers to Anders review as requiring evaluation of fundamental error. As the Arizona Court of Appeals explained in State v. Chavez:

Although Chavez phrased his claim for independent review required by Anders as “fundamental error” review, it is important to note Anders required courts to independently review the record to confirm counsel's finding that an appeal is “frivolous.” Smith v. Robbins, 528 U.S. 259, 279, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). This is different than fundamental error review under Arizona law. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). For direct appeal cases, Arizona courts have sometimes referred to Anders review as a review for fundamental error. See, e.g., State v. Flores, 227 Ariz. 509, 512, ¶ 12, 260 P.3d 309, 312 (App. 2011).

Chavez, 243 Ariz. at 314 n.2, 407 P.3d at 86 n.2.

In Pacheco v. Ryan, District Judge Campbell accepted Magistrate Judge Metcalf's report and recommendation (“R&R”), Pacheco v. Ryan, CV-15-2264-PHX-DGC (JFM), 2016 WL 7423410, at *37 (D. Ariz. Sept. 23, 2016), in which Judge Metcalf concluded that the petitioner's “rights under Anders were violated by the failure of the trial court to independently review the record for non-frivolous issues for review.” Pacheco v. Ryan, CV-15-2264-PHX-DGC, 2016 WL 7407242, at *10 (D. Ariz. Dec. 22, 2016). Judge Campbell observed that in summarily denying the petitioner's pro se PCR petition, the superior court found that all issues raised were precluded as having been previously adjudicated, or untimely filed, or that the petition lacked a sufficient basis in fact or law to warrant further proceedings. 2016 WL 7407242, at *2. Judge Campbell agreed that the respondents had presented no evidence to indicate that the “superior court engaged in an independent review of the record.” Id. at *10. Judge Campbell further noted the respondents had not objected to Judge Metcalf's conclusion that, after finding that Anders protections apply to Rule 32 of-right proceedings, such protections were not satisfied in the petitioner's case. Id. Judge Campbell accordingly conditionally granted the habeas petition and ordered the petitioner released unless the petitioner was permitted to “file a new of-right Rule 32 proceeding, including the filing of a brief by counsel and an independent review by the trial court consistent with [Anders ].” Id.

In 2019, District Judge Rayes considered and accepted Magistrate Judge Boyle's R&R regarding a state petitioner's habeas petition raising the issue of Anders review in of- right PCR proceedings. Bledsoe v. Ryan, No. CV-18-03376-DLR, 2019 WL 4345457 (D. Ariz. Sept. 12, 2019). The petitioner argued he was denied Anders review in his of-right PCR action when the state superior court failed to provide an independent review of the record before it dismissed the petitioner's pro per PCR petition. Bledsoe v. Ryan, No. CV-18-03376-PHX-DLR (JZB), 2019 WL 4367799 (D. Ariz. Aug. 6, 2019). On petition for review in the petitioner's PCR action, the Arizona Court of Appeals stated that pursuant to State v. Chavez, 243 Ariz. at 318-19, 407 P.3d at 90-91, “the current Rule 32 procedure does not require the superior court to conduct such a review.” State v. Bledsoe, No. 1 CA-CR 170214 PRPC, 2018 WL 542898, at *1, ¶ 5 (Ct. App. Jan. 25, 2018). In their response to the habeas petition, the state respondents conceded that the petitioner should be granted conditional relief on the Anders claim asserted in the habeas petition. CV-18-03376-PHX-DLR (Doc. 9 at 14-15). The respondents agreed with the analysis in Pacheco that because Anders protections apply to of-right first appeals and Arizona courts have treated of-right PCR proceedings as equivalent to a direct appeal for pleading defendants, “the Arizona Court of Appeals decision that Bledsoe was not entitled to Anders review thus ran contrary to clearly established federal law.” (Id.) Judge Rayes accepted the R&R and ordered that the petition be conditionally granted as to the Anders claim. CV-18-03376-DLR (JZB), 2019 WL 4345457, at *1 (D. Ariz. Sept. 11, 2019).

Recently, Judge Rayes again addressed a § 2254 petition in which the petitioner alleged his Sixth and Fourteenth Amendment rights were violated when the state PCR court failed to provide Anders review in the petitioner's of-right Rule 32 proceeding. Chavez v. Ryan, No. CV-19-05424-PHX-DLR, 2021 WL 734595, at *2 (D. Ariz. Feb. 25, 2021). The petitioner had pleaded guilty and subsequently filed a PCR action. Id. at *1. Appointed counsel filed a notice of completion of PCR review advising the superior court she had been unable to identify any claims for relief. Id. Judge Rayes noted that the petitioner filed a pro per petition and that the superior court had denied the petition, “finding that there was no showing of ineffective assistance of counsel and that nothing counsel could have done would have changed [the petitioner's] sentence.” Id. Judge Rayes explained that the petitioner filed a petition for review in the Arizona Court of Appeals in which he argued in part that the court of appeals was required to ‘“review for fundamental error in considering petition for review from denial of [PCR] by pleading defendant, but Court may deny petition by summary order after examining record if it finds no fundamental error.'” Id. (quoting CV-19-05424-PHX-DLR (Doc. 1-2 at 74)) The court of appeals denied relief and instructed that in Arizona, an of-right PCR petitioner “is not entitled to a review of the record by the superior court for arguable issues as required for direct appeals” under Anders and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Chavez, 243 Ariz. at 314, 407 P.3d at 86. Id.

Judge Rayes noted that under Anders, appellate counsel may be permitted to withdraw as counsel when finding an appeal frivolous where: (1) counsel files a brief referring to any portions of the record that may support appeal; (2) the defendant is provided counsel's brief and given time to raise “the points he chooses”; and (3) the reviewing court will, “after a full examination of all the proceedings . . . decide whether the case is wholly frivolous.” Id. at *2. Judge Rayes rejected the respondents' argument that Arizona's Rule 32 procedures were at least as good as those discussed in Anders and concluded instead that Arizona's procedures are “substantively no different than the procedure the Court rejected in Anders.” 2021 WL 734595, at **2-3. Judge Rayes granted the § 2254 habeas petition under the same conditions imposed in Pacheco and Bledsoe. Id.

Even more recently, District Judge Marquez conditionally granted a § 2254 petitioner's Anders claim in Sanchez v. Attorney General of Arizona, No. CV-17-00224-TUC-RM, 2021 WL 1192846 (D. Ariz. Mar. 30, 2021). The petitioner had pleaded guilty in state superior court to one count of sexual conduct with a minor and one count of attempted sexual conduct with a minor. Sanchez v. Ryan, No. CV-17-00224-TUC-RM (DTF), 2020 WL 9048807 (D. Ariz. May 21, 2020). The petitioner filed three PCR actions. Id. at **1-2. He asserted an Anders violation in his third PCR proceeding. Id. at *5. In the Petitioner's first PCR proceeding, he filed a notice of PCR and was appointed counsel, who filed a notice advising the superior court that upon review of the record he had not been able to identify any ground for Rule 32 relief. Id. at *1. The petitioner filed a pro per PCR petition on which the superior court denied relief and the Arizona Court of Appeals granted review but denied relief. Id. In the petitioner's third PCR action, the superior court dismissed his notice of PCR as successive. Id. at *5. On petition for review to the Arizona Court of Appeals, that court found all of the petitioner's claims precluded as untimely under Arizona Rule of Criminal Procedure 32.4(a)(2)(C). Id. Relying on State v. Chavez, the court of appeals additionally declared that Anders review was not required for pleading defendants. Id. In his § 2254 habeas petition, the petitioner argued that his equal protection and due process rights were violated during his of-right PCR proceeding when ‘“no Anders or comparable safeguard was followed'” thereby denying his right to effective assistance of counsel. Id. In his R&R, Magistrate Judge Ferraro concluded the claim was procedurally defaulted without excuse and thus barred from federal habeas review. Id. at **5-7.

Ruling on the petitioner's objections to the R&R, District Judge Marquez concluded that to the extent the petitioner's Anders claim asserted IAC by PCR counsel, the claim was procedurally defaulted in state court. 2021 WL 1192846, at *5. Judge Marquez, however, found there was no indication in the record that the Arizona Court of Appeals had found the petitioner's Anders claim procedurally barred and noted the court of appeals had addressed the claim on the merits. Id. Judge Marquez indicated that Anders instructed that the reviewing court is required to conduct ‘“a full examination of all the proceedings, to decide whether the case is wholly frivolous,' before allowing the withdrawal of counsel.” Id. (quoting Anders, 386 U.S. at 744, and citing Penson v. Ohio, 488 U.S. 75, 80 (1988)). Judge Marquez declared that the superior court had denied the petitioner's PCR petition without conducting an Anders record review. Id. at *4. Additionally, Judge Marquez observed that Anders required that “a court-appointed criminal defense attorney who, on appeal of a criminal conviction, finds the appeal meritless or frivolous, may request permission to withdraw but must file ‘a brief referring to anything in the record that might arguably support the appeal.' 386 U.S. 738, 744 (1967).” Id. Judge Marquez then concluded that the Arizona Court of Appeals' “reliance on Chavez for the proposition that Anders safeguards were not required during [the petitioner's] of-right PCR proceeding was an unreasonable application of clearly established federal law, as determined by the United States Supreme Court in Anders and Finley.” Id. at *6. Judge Marquez conditionally granted the amended petition for writ of habeas corpus on the Anders claim, and entered an order consistent with those in Pacheco, Bledsoe, and Chavez. Id. at *10.

Here, Petitioner argues in Ground 6 that the superior court erred by failing to conduct a fundamental error review, in violation of Anders . (Doc. 5 at 11) In his Reply, Petitioner reasserts his complaint that he was not provided Anders protections because the superior court failed to “search the record for non-frivolous arguments before allowing counsel to withdraw, ” thus committing “an independent error.” (Doc. 12 at 61) In his Reply, Petitioner additionally contends the superior court allowed his appointed PCR counsel to withdraw without counsel having first provided a brief discussing anything in the record that might support an appeal. (Id. at 61) Petitioner asserts that “[o]n March 23, 2017 counsel filed a Notice of No Colorable Claims and requested permission to withdraw from representation[, ]”the “court granted his request[, ]” and Petitioner thereafter filed a pro per PCR petition. (Id.) Neither Petitioner nor Respondents have provided the Court with the March 23, 2017, filing or the order thereon. Nevertheless, as noted in section I(B), supra, the superior court's order regarding Petitioner's pro per PCR petition filed after the notice of no colorable claims copied not just Petitioner, but also “Tony J. Gonzales, Esq.” as “advisory Counsel” for Petitioner. (Doc. 9-3 at 69-70)

Undersigned concludes that the facts in Petitioner's case distinguish it from those presented in Pacheco, Bledsoe, Chavez, and Sanchez. Foremost is that unlike the circumstance in those cases, here the superior court in fact did review the record for non-frivolous arguments. As noted in section I(B), supra, the superior court expressly stated that it had “searched the record for any basis for post-conviction relief and finds none.” (Doc. 9-3 at 69 (emphasis added)) The superior court did not limit its review to whether Petitioner's claims in his pro per PCR petition lacked merit. Although the court concluded that Petitioner's claims of “various due process violations[, ]” that he had received an enhanced sentence, and that he had received constitutionally ineffective assistance of counsel were without merit, the court's declaration that its review of the record for “any basis” for post-conviction relief indicates the court considered all potential bases for relief as required in an Anders review.

In addition, the record indicates that Petitioner's appointed PCR counsel was ordered to continue as advisory counsel after his notice of no colorable claims. The superior court's order on Petitioner's pro per PCR petition copied Mr. Gonzales as Petitioner's advisory counsel. (Doc. 9-3 at 70) At the very least, Mr. Gonzales was appointed to assist Petitioner throughout the critical portions of Petitioner's superior court PCR proceedings. Further, in his pro per PCR notice filed before counsel was appointed, Petitioner had checked the box that he was not raising a claim of ineffective assistance of counsel by Brian Strong, his trial counsel. (Doc. 9-1 at 22) Unlike Petitioner's briefing in this Court, including his Petition (Doc. 1), Amended Petition (Doc. 5), and Reply (Doc. 12), his petition for review in the Arizona Court of Appeals of the superior court's ruling on his pro per PCR petition (Doc. 9-3 at 72-91), or his petition for review in the Arizona Supreme Court on the court of appeals' ruling (Id. at 100-110), Petitioner's pro per PCR petition (Doc. 9-1 at 25-128, Doc. 9-2 at 1-127, Doc. 9-3 at 1-67) was typewritten and included a table of authorities with a lengthy list of case law, provisions of the Arizona and U.S. Constitutions, state statutes, a federal rule of criminal procedure, miscellaneous legal authorities, and voluminous exhibits. (Doc. 9-1 at 26-28, 50-128, Doc. 9-2 at 1-127, Doc. 9-3 at 1-67) In his pro per PCR petition, Petitioner did in fact argue grounds of IAC by trial counsel Brian Strong, along with claims asserting violation of due process, improper statutory construction, and that his guilty plea was not knowing, voluntary, and intelligent. (Id. at 30-49) Although the record does not expressly show that Mr. Gonzales assisted Petitioner regarding Petitioner's pro per PCR petition, that Mr. Gonzales did so in Petitioner's case is a reasonable conclusion from the pro per PCR Petition, including its attachments.

Importantly, in Smith v. Robbins, while characterizing the procedure endorsed in Anders as “merely one method of satisfying the requirements of the Constitution for indigent criminal appeals[, ]” 528 U.S. at 276, the Supreme Court cautioned that:

any view of the procedure we described in the last section of Anders that converted it from a suggestion into a straitjacket would contravene our established practice, rooted in federalism, of allowing the States wide discretion, subject to the minimum requirements of the Fourteenth Amendment, to experiment with solutions to difficult problems of policy.

Id. at 273.

Disavowing any intention of seeking to impose “a single solution on the States from the top down[, ]” the Supreme Court explained that it “should, and do, evaluate state procedures one at a time, as they come before us[.]” Id. at 275. While assessing whether California's procedure for criminal appellants pursuing a first appeal as of right violated the Fourteenth Amendment, the Supreme Court concluded that such a procedure provided effective and adequate appellant review to indigent defendants if it “reasonably ensures that an indigent's appeal will be resolved in a way that is related to the merit of that appeal.” Id. at 276-77. The Supreme Court wrote that in determining whether a state procedure satisfies such standard:

it is important to focus on the underlying goals that the procedure should serve-to ensure that those indigents whose appeals are not frivolous receive the counsel and merits brief required by Douglas, and also to enable the State to “protect itself so that frivolous appeals are not subsidized and public moneys not needlessly spent, ” Griffin, supra, at 24, 76 S.Ct. 585 (Frankfurter, J., concurring in judgment). For although, under Douglas, indigents generally have a right to counsel on a first appeal as of right, it is equally true that this right does not include the right to bring a frivolous

appeal and, concomitantly, does not include the right to counsel for bringing a frivolous appeal. See McCoy, 486 U.S., at 436-438, 108 S.Ct. 1895; Douglas, supra, at 357, 83 S.Ct. 814; see also United States v. Cronic, 466 U.S. 648, 656, n. 19, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) (“Of course, the Sixth Amendment does not require that [trial] counsel do what is impossible or unethical”); cf. Nix v. Whiteside, 475 U.S. 157, 175, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986) (no violation of Sixth Amendment right to the effective assistance of counsel when trial counsel refuses to violate ethical duty not to assist his client in presenting perjured testimony). To put the point differently, an indigent defendant who has his appeal dismissed because it is frivolous has not been deprived of “a fair opportunity” to bring his appeal, Evitts, supra, at 405, 105 S.Ct. 830; see Finley, 481 U.S., at 556, 107 S.Ct. 1990, for fairness does not require either counsel or a full appeal once it is properly determined that an appeal is frivolous. The obvious goal of Anders was to prevent this limitation on the right to appellate counsel from swallowing the right itself, see Penson, 488 U.S., at 83-84, 109 S.Ct. 346; McCoy, supra, at 444, 108 S.Ct. 1895, and we do not retreat from that goal today.

Smith v. Robbins, 528 U.S. at 277-78.

To date, the Supreme Court has not evaluated Arizona's procedure for permitting appointed counsel to withdraw and become advisory counsel where counsel has determined that the pleading criminal defendant's case contains no non-frivolous PCR claims. In the District of Arizona cases discussed above, the courts concluded that the petitioners were entitled to conditional relief on facts indicating the PCR courts did not review the record and determine the PCR petition contained no non-frivolous claims. Here, Petitioner's case is distinguishable because the superior court did perform that review. Additionally, the record is reasonably read to indicate that Petitioner's appointed PCR counsel reviewed the record and was available for and/or actually assisted Petitioner in drafting his pro per PCR petition.

In Petitioner's PCR action, on Petitioner's claim the “superior court erred by summarily dismissing his PCR without conducting fundamental error review akin to the process required for direct appeals under Anders[, ]” the Arizona Court of Appeals did not discuss whether the superior court had conducted an Anders review, but rather held that pursuant to its decision in State v. Chavez, Arizona's “current Rule 32 procedure does not require the superior court to conduct such a review.” (Doc. 9-3 at 96 (citing Chavez, 243 Ariz. at 318-19)) It is Petitioner's burden to establish that the Arizona Court of Appeals' decision on this claim “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court” or “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). In his Amended Petition, Petitioner states that the PCR court did not conduct the review for error required by Anders. (Doc. 5 at 11) As discussed above, this statement is refuted by the record, which shows the superior court in fact did review Petitioner's case for “any basis for post-conviction relief and [found] none.” (Doc. 9-3 at 69)

In his Reply, Petitioner states that the “Arizona Court of Appeals decision that ‘of-right' Rule 32 petitioners have no right to Anders review was contrary to Supreme Court law.” (Doc. 12 at 59) In State v. Chavez, the Arizona Court of Appeals noted that:

[w]hile Arizona has granted defendants in of-right post-conviction proceedings the right to counsel, State v. Pruett, 185 Ariz. 128, 131, 912 P.2d 1357, 1360 (App. 1995), and the federal constitution guarantees defendants counsel in such proceedings, Halbert v. Michigan, 545 U.S. 605, 610, 125 S.Ct. 2582, 162 L.Ed.2d 552 (2005), our supreme court has found no requirement that such state-created post-conviction review be subject to Anders review. See Smith, 184 Ariz. at 460, 910 P.2d at 5; see also Pennsylvania v. Finley, 481 U.S. 551, 556, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) (“[W]e reject [the] argument that the Anders procedures should be applied to a state-created right to counsel on postconviction review just because they are applied to the right to counsel on first appeal that this Court established....”); Fitzgeraldv. Superior Court (State), 243 Ariz. 84, 402 P.3d 442, 448, ¶ 17 (2017) (“[T]he right to PCR counsel under § 13-4041(B) does not also create or include ‘a “statutory right” to competence.'”).

243 Ariz. at 317, 407 P.3d at 89. Yet, the Chavez court acknowledged that Anders applied, but it concluded that an independent, fundamental-error review by the trial court is not required in of-right PCR proceedings to meet the minimum constitutional protections required by Anders and its progeny for those particular proceedings. Id. (stating that the specific procedures proposed in Anders are not required; “States are free to adopt different procedures, so long as those procedures adequately safeguard a defendant's right to appellate counsel”) (quoting Smith v. Robbins, 528 U.S. 259, 265 (2000)).

Petitioner asserts that “[o]f-right petitioners have a constitutional right to counsel” and that, accordingly, Anders procedures apply. (Doc. 12 at 59, 62) To support this assertion, Petitioner cites to Judge Metcalf's R&R in Pacheco, which concluded that the petitioner had a federal constitutional right to counsel in his of-right PCR proceedings that required compliance with the procedure in Anders. (Id. at 59-60 (citing 2016 WL 7423410, at ** 25-32)) Both the R&R and Judge Campbell's order accepting the R&R in Pacheco were decided prior to the Arizona Court of Appeals' opinion in State v. Chavez, which was filed in November 2018.

Petitioner fails to cite clearly established federal law as determined by the United States Supreme Court to support his claim that, specific to Arizona's Rule 32 procedures, he had the right under Anders to a differing review and assistance of counsel in the PCR court than the review and assistance of counsel he received. Petitioner has not established that the review which actually occurred in the superior court in his PCR proceeding or the procedures regarding appointed counsel were contrary to clearly established Federal law determined by the Supreme Court.

For the reasons set forth above, undersigned concludes Petitioner has failed to demonstrate that the Arizona Court of Appeals' decision on the merits of Petitioner's Ground 6 claim was contrary to clearly established Supreme Court case law applicable to Arizona's PCR procedures as implemented in Petitioner's case. 28 U.S.C. § 2254(d)(1).

IV. CONCLUSION

As discussed above, undersigned concludes that: (1) Petitioner's Grounds 3c, 5f, and 5i are procedurally defaulted without excuse; (2) Ground 5g was not sufficiently pled to support habeas relief and 5h is not cognizable in federal habeas review; and (3) Grounds 1, 2, 3a, 3b, 4a, 4b, 5a, 5b, 5c, 5d, 5e, and 6 fail on the merits.

Undersigned therefore recommends that the Amended Petition be denied and dismissed with prejudice.

Assuming the recommendations herein are followed in the District Judge's judgment, the District Judge's decision will be on procedural grounds for Grounds 3 c, 5f, 5g, 5h, and 5i, and on the merits for Grounds 1, 2, 3a, 3b, 4a, 4b, 5a, 5b, 5c, 5d, 5e, and 6. Undersigned recommends that, if the Court agrees with the recommendation on Ground 6, a certificate of appealability be granted solely on Ground 6 because Petitioner has asserted a claim of constitutional magnitude and in light of District of Arizona Courts' rulings in Pacheco, Bledsoe, Chavez, and Sanchez discussed above as well as the lack of Supreme Court precedent specific to Arizona's PCR procedures, it is apparent that jurists of reason might find the Court's assessment of the claim debatable. Undersigned further recommends that a certificate of appealability be denied as to all other claims because reasonable jurists would not find it debatable whether the District Judge was correct in his procedural ruling on Grounds 3 c, 5f, 5g, 5h, and 5i, and because Petitioner has not “made a substantial showing of the denial of a constitutional right, ” 28 U.S.C. § 2253(c)(2), and jurists of reason would not find the Court's assessment of Petitioner's claims in Grounds 1, 2, 3a, 3b, 4a, 4b, 5a, 5b, 5c, 5d, and 5e to be “debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Accordingly, IT IS THEREFORE RECOMMENDED that Petitioner Jeremy Offutt's Amended Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 5) be denied and dismissed with prejudice.

IT IS FURTHER RECOMMENDED that a Certificate of Appealability be granted solely on Ground 6 of the Amended Petition because Petitioner has “made a substantial showing of the denial of a constitutional right, ” 28 U.S.C. § 2253(c)(2), and jurists of reason could find the Court's assessment of Petitioner's constitutional claims “debatable or wrong, ” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

IT IS FURTHER RECOMMENDED that a Certificate of Appealability be denied because as to Grounds 3c, 5f, 5g, 5h, and 5i, dismissal of the Amended Petition is justified by a plain procedural bar and reasonable jurists would not find the procedural ruling debatable, and as to Grounds 1, 2, 3a, 3b, 4a, 4b, 5a, 5b, 5c, 5d, and 5e, Petitioner has not “made a substantial showing of the denial of a constitutional right, ” 28 U.S.C. § 2253(c)(2), and jurists of reason would not find the Court's assessment of Petitioner's constitutional claims “debatable or wrong, ” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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.