Opinion
CV 20-08157 PCT JAT (CDB)
06-03-2021
Andrew Paul Schaffer, Petitioner, v. David Shinn, Attorney General of the State of Arizona, Respondents.
TO THE HONORABLE JAMES A. TEILBORG:
REPORT AND RECOMMENDATION
CAMILLE D. BIBLES, UNITED STALES MAGISTRATE JUDGE
Petitioner Andrew Schaffer, proceeding pro se, docketed a petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on June 29, 2020, and filed an amended petition on August 3, 2020. (ECF Nos. 1 & 4). Respondents answered the amended petition and Schaffer has filed a reply and an addendum to his reply. (ECF Nos. 8, 9, 10).
I. Background
A grand jury indictment returned August 2, 2012, charged Schaffer with ten counts of sexual exploitation of a minor, one count of possession of marijuana, and one count of possession of drug paraphernalia. (ECF No. 8-1 at 3-7). The indictment charged Schaffer had “distributed, transported, exhibited, received, sold, purchased, electronically transmitted, possessed or exchanged” ten separate “visual depiction[s]” of females under the age of fifteen “engaged in exploitive exhibition or other sexual conduct.” (Id.).
On February 11, 2013, Schaffer entered into a plea agreement. (ECF No. 8-1 at 9-15). The plea agreement provided that, in return for Schaffer's guilty plea to one count of sexual exploitation of a minor (a class 2 felony) and two counts of attempted sexual exploitation of a minor (class 3 felonies), the State would amend the indictment to allege two counts of attempted sexual exploitation of a minor, rather than completed crimes, and dismiss the remaining seven counts of sexual exploitation of a minor and the possession and paraphernalia charges. (ECF No. 8-1 at 13). The plea agreement noted the crimes of conviction were classified as dangerous crimes against children and that the sentencing range on the crime of sexual exploitation of a minor was a minimum of 10 years, a maximum of 24 years, and a presumptive sentence of 17 years' imprisonment. (ECF No. 8-1 at 9). The plea agreement provided that Schaffer would be sentenced to probation on the class 3 felonies. (ECF No. 8-1 at 10). The plea agreement further provided that, if the plea agreement was rejected, withdrawn, or if Schaffer's convictions were “subsequently set aside in post-conviction proceedings, the original charges and any charges that are dismissed by reason of [the] Plea agreement” would be “automatically reinstated.” (ECF No. 8-1 at 13). In the plea agreement Schaffer “waive[d] and [gave] up any and all motions, defenses, objections, or requests which [he] has made or raised, or could assert hereafter, to the Court's entry of judgment against [him] and the imposition of a sentence upon [him] consistent with this Plea Agreement.” (Id.). In the written plea agreement Schaffer also waived his right to an appeal and consented to “judicial fact-finding by a preponderance of the evidence as to any aspect or enhancement of sentence . . .” (Id.).
On May 29, 2013, Schaffer was sentenced to the presumptive term of 17 years' imprisonment on the class 2 felony, followed by two consecutive terms of lifetime probation pursuant to his conviction on the class 3 felonies. (ECF No. 8-1 at 19-22). The sentencing court noted all three crimes were classified as dangerous crimes against children, and in imposing sentence cited Arizona Revised Statutes §§ 13-3553, 13-705, 13-701, 13-702, and 13-801. (ECF No. 8-1 at 19).
Arizona Revised Statutes Annotated §13-3553 defines the elements of the crime of sexual exploitation of a minor; § 13-701 defines aggravating factors regarding the imposition of a greater than presumptive sentence; § 13-702 governs sentencing of first-time felony offenders; § 13-705 governs sentences upon conviction of a dangerous crime against children; and § 13-801 governs fines imposed upon commission of a felony (no fine was imposed).
Approximately two years later, on May 20, 2015, Schaffer filed a petition seeking special action relief in the Arizona Supreme Court, asserting his sentence was excessive, that the sentencing court abused its discretion in imposing sentence, and judicial bias. (ECF No. 8-1 at 42-61). The Arizona Supreme Court denied relief on September 15, 2015. (ECF No. 4 at 63).
On September 28, 2015, Schaffer initiated a state action for post-conviction relief. (ECF No. 8-1 at 24-27). In his pro per petition Schaffer asserted the same claims raised in his petition for special action. Schaffer alleged: “Count I was stipulated verbally the State would recommend a minimum 10 year prison term contingent upon the results of a psycho-sexual evaluation.” (ECF No. 8-1 at 31). Schaffer further asserted that “[a]fter the court sentenced petitioner to the presumptive 17 year prison term, [defense counsel] filed a Rule 24.2 motion to vacate judgement and was never heard from again until Mid 2015.” (Id.). Schaffer also alleged the sentencing court “justified the presumptive 17 year sentence based on her own shallow reasons.” (Id.). Schaffer argued the sentencing court abused its discretion by failing “to properly weigh all mitigating factors when considering the appropriate sentence.” (ECF No. 8-1 at 32). Schaffer also implied the judge imposed an “excessive” sentence because a newspaper reporter was in the courtroom at his sentencing. (ECF No. 8-1 at 32-33).
On October 30, 2015, the state habeas trial court, which was not the convicting court, dismissed Schaffer's petition for postconviction relief as untimely. (ECF No. 8-1 at 40). Schaffer did not seek review in the Arizona Court of Appeals.
On January 10, 2019, Schaffer filed a second petition for state post-conviction relief. (ECF No. 4 at 22-25). Schaffer asserted a “significant change in the law, ” i.e., the Arizona Supreme Court's opinion Wright v. Gates, 243 Ariz. 118 (2017), required he be resentenced. Schaffer construed the Wright decision as requiring proof of an actual child victim for a sentence to be enhanced pursuant to Arizona Revised Statutes Annotated § 13-705. (ECF No. 4 at 24-25).
The relevant subsection of § 13-705 was amended by the Arizona State Legislature in 2021 and now provides: “It is not a defense to a dangerous crime against children that the minor is a person posing as a minor or is otherwise fictitious if the defendant knew or had reason to know the purported minor was under fifteen years of age.” 2021 Ariz. Legis. Serv. Ch. 202 (H.B. 2889), amending Ariz. Rev. Stat. Ann. § 13-705(P) (now subsection (Q)). Arizona criminal law provides for enhanced penalties for crimes involving a minor victim under age fifteen. “These graduated sanctions suggest that the legislature similarly intended less severe punishment when there is no actual child victim. In that situation, the crime will be punished as the law generally provides rather than with an enhanced DCAC [dangerous crimes against children] sentence.” Wright v. Gates, 243 Ariz. 118, 121 (2017) (holding that DCAC sentencing does not apply when “a defendant commits a crime against a fictitious child, ” i.e., when the “child” was an undercover police officer posing as a child). The Arizona Supreme Court's opinion in Wright issued October 4, 2017.
On February 15, 2019, the state habeas trial court dismissed Schaffer's petition, concluding there had been no significant change in the law since his conviction and that Schaffer had waived all non-jurisdictional defenses and claims pursuant to the terms of his plea agreement. (ECF No. 4 at 27). Schaffer filed a petition for review with the Arizona Court of Appeals, contending the habeas trial court had improperly ignored the Arizona Supreme Court's holding in Wright in denying relief. (ECF No. 4 at 29-36). The appellate court granted review but summarily denied relief. (ECF No. 4 at 38-39). Schaffer filed a petition for review with the Arizona Supreme Court, which denied review on May 27, 2020. (ECF No. 4 at 40-49, 50).
II. Analysis
A. Statute of limitations
Schaffer's petition for habeas corpus relief is barred by the statute of limitations provision of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). The AEDPA imposed a one-year statute of limitations on state prisoners seeking federal habeas relief from their state convictions. 28 U.S.C. § 2244(d)(1). The one-year statute of limitations on habeas petitions begins to run, inter alia, on “the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review.” Id. at § 2244(d)(1)(A). The limitations period is statutorily tolled during the time a “properly filed” state action for post-conviction relief is pending in the state courts. Id. at § 2244(d)(2).
To assess the timeliness of the pending petition, the Court must first determine the date on which Schaffer's conviction became “final by the conclusion of direct review.” 28 U.S.C. § 2244(d)(1)(A). By pleading guilty, Schaffer was precluded from pursuing a direct appeal. See Ariz. Rev. Stat. § 13-4033(B). Instead, Schaffer was entitled to seek review of his conviction and sentence in an “of-right” proceeding pursuant to Rule 32 (now Rule 33) of the Arizona Rules of Criminal Procedure, the functional equivalent of a direct appeal for a defendant entering a guilty plea. See Summers v. Schriro, 481 F.3d 710, 715-16 (9th Cir. 2007). Schaffer was sentenced on May 29, 2013. Therefore, his notice of post-conviction relief was due ninety days later, i.e., on August 27, 2013. See Ariz. R. Crim. P. 32.4(a) (since renumbered as Rule 33.4(b)(3)). Because Schaffer did not file a timely notice of post-conviction relief, his conviction became final on August 27, 2013, upon “the expiration of the time for seeking [post-conviction] review.” Summers, 481 F .3d at 711, 716-17.
Accordingly, because the AEDPA statute of limitations began to run August 28, 2013, and expired one year later on August 28, 2014, and Schaffer's federal habeas petition was not docketed until June 29, 2020, the petition was filed approximately five years and ten months after the AEDPA's statute of limitations expired.
The limitations period is statutorily tolled during the time a “properly filed” state action for post-conviction relief is pending in the state courts. See 28 U.S.C. § 2244(d)(2). Neither Schaffer's first nor his second state actions for post-conviction relief (the first initiated September 28, 2015) restarted the already-expired limitations period on Schaffer's federal habeas action. See Larson v. Soto, 742 F.3d 1082, 1088 (9th Cir. 2013); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001). Both of these state actions for post-conviction relief were deemed untimely by the state courts and, accordingly, neither was a “properly filed state action for post- conviction relief” and they could not toll or restart the running of the statute of limitations on Schaffer's federal habeas petition. See Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005) (holding that a state petition that is not filed within the state's required time limit is not “properly filed.”). See also Allen v. Siebert, 552 U.S. 3, 5-7 (2007) (holding that the Pace rule applies even where there are exceptions to the state-court filing deadlines, and reaffirming that a state court's rejection of a petition as untimely is “the end of the matter”).
The one-year statute of limitations for filing a federal habeas petition may be equitably tolled if extraordinary circumstances beyond the petitioner's control prevented them from filing their petition on time. See Holland v. Florida, 560 U.S. 631, 645 (2010); Gibbs v. Legrand, 767 F.3d 879, 884-85 (9th Cir. 2014). As to the first element, “[t]he diligence required for equitable tolling purposes is reasonable diligence, not maximum feasible diligence.” Holland, 560 U.S. at 653 (internal citations and quotations omitted). As to the second element, “[e]quitable tolling is applicable only if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time.” Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006) (quotations and citations omitted). The “extraordinary circumstance” must be attributable to an external force rather than a petitioner's lack of diligence or his lack of legal knowledge. See Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). Equitable tolling is also available if the petitioner establishes their actual, factual innocence of the crimes of conviction. See McQuiggin v. Perkins, 569 U.S. 383, 386 (2013); Stewart v. Cate, 757 F.3d 929, 937-38 (9th Cir. 2014).
When an otherwise time-barred habeas petitioner “presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial, ” and the petitioner also asserts a colorable claim that his state criminal proceedings involved non-harmless constitutional error, the Court may consider the petition on the merits. Stewart v. Cate, 757 F.3d 929, 937-38 (9th Cir. 2014), citing Schlup v. Delo, 513 U.S. 298, 329 (1995). The Supreme Court has cautioned, however, that “tenable actual-innocence gateway pleas are rare.” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). “[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” Id.
Equitable tolling is to be rarely granted. See, e.g., Yow Ming Yeh v. Martel, 751 F.3d 1075, 1077 (9th Cir. 2014); Waldon-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). It is the petitioner's burden to establish that equitable tolling is warranted in his case. See Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010); Waldon-Ramsey, 556 F.3d at 1011; Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2004). To be entitled to equitable tolling Schaffer must show “extraordinary circumstances were the cause of his untimeliness and that the extraordinary circumstances made it impossible to file a petition on time.” Porter, 620 F.3d at 959 (emphasis added and internal quotations omitted). See also Bryant v. Arizona Att'y Gen., 499 F.3d 1056, 1060 (9th Cir. 2007) (holding the petitioner must establish a “causal connection” between the extraordinary circumstances and their failure to file a timely petition).
In response to Respondents' allegation that his petition is time-barred, Schaffer asserts he was diligent in pursuing his remedies because he “only learned of the Wright v. Gates, 243 Ariz. 118 (2017) case from a ‘jailhouse lawyer' in late 2018.” (ECF No. 9 at 2). He further asserts he had “no prison law library or access to Lexis-Nexis upon learning of this precedent setting case, ” noting “he filed a pro-se PCR immediately (Jan. 10, 2019).” (Id.). Schaffer further contends: “The respondent's answer attempts to obfuscate the timeliness in AEDPA. Contrary to the respondents assertions, the petitioner pursued his rights and claims dilligently [sic].” (Id.).
Any alleged ignorance of the statute of limitations or “lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling.” Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir.2006). See also Robinson v. Kramer, 588 F.3d 1212, 1216 (9th Cir. 2009). A petitioner's pro se status, indigence, limited legal resources, or lack of representation during the applicable filing period do not constitute extraordinary circumstances justifying equitable tolling. See, e.g., Rasberry, 448 F.3d at 1154.
Schaffer contends he is entitled to a delayed commencement date of the statute of limitations because he did not learn of the decision in Wright v. Gates, 243 Ariz. 118 (2017) until late in 2018. Although the conclusion of direct review of a state defendant's conviction normally marks the beginning of the statutory one-year statute of limitations, § 2244(d)(1)(D) does provide an alternative of “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” Thus, where despite the exercise of due diligence a petitioner was unable to discover the factual predicate of his claim, the statute does not commence running on that claim until the earlier of such discovery or the elimination of the disability which prevented discovery. To the extent Schaffer argues the statute of limitations did not begin to run until he became aware of the Wright opinion, Schaffer's assertion that he is entitled to tolling of the statute of limitations, or that his claim may be timely under §2244(d)(1)(D), he does not present a newly discovered factual predicate for the proffered claim and any later “discovery” of a “new” legal theory does not entitle him to a delayed commencement of the limitations period. See Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir. 2012) (“The “due diligence” clock starts ticking when a person knows or through diligence could discover the vital facts, regardless of when their legal significance is actually discovered.”); Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001); Holmes v. Spencer, 685 F.3d 51, 59 (1st Cir. 2012) (“We have interpreted § 2244(d)(1)(D)'s reference to the phrase ‘factual predicate' to mean ‘evidentiary facts or events[, ] and not court rulings or legal consequences of the facts.'”); Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000) (rejecting the petitioner's assertion that the one-year period begins when the petitioner “actually understands what legal theories are available”) (emphasis omitted)). See also Supinger v. Ryan, 2016 WL 2851436, at *1 (D. Ariz. May 16, 2016) (concluding equitable tolling was not appropriate when the petitioner was not relying on newly discovered facts, but rather on a new legal theory of defense related to his conviction).
Rather than asserting new facts, Schaffer asserts a delay in discovery of a legal precedent. The effect of changes in law on the statute of limitations are addressed by § 2254(d)(1)(C)-(D). Absent unusual circumstances, such as the vacating of a petitioner's own prior conviction, the issuance of a state court decision does not constitute the discovery of a “factual predicate” for a habeas claim. See Shannon v. Newland, 410 F.3d 1083, 1089 (9th Cir. 2005). Similarly, although ignorance of the statute of limitations may cause a petitioner to file an untimely petition, that ignorance is not a lack of a factual predicate (or even a legal predicate) necessary for him to assert a claim. As noted in Whalem/Hunt v. Early, a “petitioner's knowledge of the legal basis of his claims is not the same as knowledge of the procedural rules that must be complied with in order to get a hearing on the merits.” 233 F.3d 1146, 1148 (2000) (Tashima, C.J., concurring).
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. These subsections provide the statute of limitations may begin to run on:
Schaffer asserts his sentence was improper because the State was required to prove the individuals depicted in the pornography possessed by Schaffer were actual minors, rather than fictitious or computer-generated images. However, Schaffer waived any challenge to the factual bases for his conviction and sentence in the written plea agreement and, as noted by the state court, Wright did not change the relevant law with regard to the requisite elements of the counts of conviction and the factual predicate for an enhanced sentence pursuant to § 13-705. As explained infra, the legal predicate for Schaffer's claim predates the Arizona Supreme Court's decision in Wilson.
Nor does Schaffer assert his actual, factual innocence of the crimes of conviction- he does not allege that, at the time he downloaded the images, he did not perceive the individuals in the images to be other than “actual” minor girls. Nor does he challenge his conviction, but instead contests only his sentence. Accordingly, because Schaffer's federal habeas petition was not filed within the AEDPA's statute of limitations and Schaffer has not established he is entitled to statutory or equitable tolling of the statute of limitations, federal habeas relief must be denied.
In his appellate brief in his state post-conviction action Schaffer asserted: “In the Petitioner's case, there was no ‘actual' child, only a computer image or a portrayal of a child.” (ECF No. 4 at 33). “An image or a portrayal on a computer screen is not an ‘actual' child.” (Id.).
B. Exhaustion and procedural default
Absent specific circumstances, the Court may only grant federal habeas relief on the merits of a claim which has been “properly” exhausted in the state courts. See O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). To properly exhaust a federal habeas claim, the petitioner must afford the state courts the opportunity to rule upon the merits of the claim by “fairly presenting” the claim to the state's “highest” court in a procedurally correct manner. E.g., Castille v. Peoples, 489 U.S. 346, 351 (1989); Rose v. Palmateer, 395 F.3d 1108, 1110 (9th Cir. 2005). To fairly present a claim in the state courts, thereby exhausting the claim, the petitioner must present to the state courts the “substantial equivalent” of the claim presented in federal court. Picard v. Connor, 404 U.S. 270, 278 (1971); Libberton v. Ryan, 583 F.3d 1147, 1164 (9th Cir. 2009). Full and fair presentation requires a petitioner to present the substance of his claim to the state courts, including a reference to the operative federal constitutional guarantee relied on by the petitioner and a statement the facts supporting the claim. See Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009); Lopez v. Schriro, 491 F.3d 1029, 1040 (9th Cir. 2007). In non-capital cases arising in Arizona, the “highest court” test is satisfied if the habeas petitioner presented his claim to the Arizona Court of Appeals. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Date v. Schriro, 619 F.Supp.2d 736, 762-63 (D. Ariz. 2008).
Respondents assert Schaffer procedurally defaulted his federal habeas claim in the state courts by failing to assert in any of his state actions for post-conviction relief that his sentence violated his federal constitutional right to due process of law. (ECF No. 8 at 11). Respondents also note the state habeas trial court found the claim raised in Schaffer's second state post-conviction action waived by his guilty plea. (ECF No. 8 at 12).
[The federal courts] recognize two types of procedural bars: express and implied. An express procedural bar occurs when the petitioner has presented his claim to the state courts and the state courts have relied on a state procedural rule to deny or dismiss the claim. An implied procedural bar, on the other hand, occurs when the petitioner has failed to fairly present his claims to the highest state court and would now be barred by a state procedural rule from doing so.Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010).
Schaffer presented the factual basis for his federal habeas claim to the Arizona state courts; however, he did not present the claim as one asserting the violation of his right to due process of law. The state habeas trial court concluded:
The Defendant claims that the law has changed since his conviction, mandating the Court to impose a different sentence. Rule 31.2(g). For a change in the law to permit a delayed Petition for Post-Conviction Relief, the change must be a “clear break from the past.” State v. Shrum, 220 Ariz. 115, 203 P.3d 1175 (2009). In this case, the law cited by the Defendant is not a break in the past law. Arizona law always required a “real child” in cases involving Sexual Exploitation of a Minor. See State v. Berger, 212 Ariz. 473, 134 P.3d 378 (2006).
In addition, the Defendant's plea waives all non-jurisdictional defenses and claim, including any claim that the children in the photos were computer generated or fake. See State v. Reed, 121 Ariz. 547 548, 592 P.2d 381, 382 (App. 1979).(ECF No. 4 at 27).
Ordinarily, a claim raised in a second or successive state habeas petition is precluded as waived by the failure to present the claim in the prior post-conviction action. Ariz. R. Crim. P. 32.2(a)(3). However, a claim that “there has been a significant change in the law that, if applicable to the defendant's case, would probably overturn the defendant's judgment or sentence, ” is not precluded by this rule. See Ariz. R. Crim. P. 32.1(g).
The rationale for the Rule 32.1(g) exception is apparent: A defendant is not expected to anticipate significant future changes of the law in his of-right PCR proceeding or direct appeal. Nor should PCR rules encourage defendants to raise a litany of claims clearly foreclosed by existing law in the faint hope that an appellate court will embrace one of those theories. In those rare cases when a “new rule” of law is announced, Rule 32.1(g) provides a potential avenue for relief.State v. Shrum, 220 Ariz. 115, 118 (2009).
In his petition for review Schaffer again alleged Wright was a significant change in the relevant law, adding “in the petitioner's case, there was no ‘actual' child, only a computer image or a portrayal of a child. . . . An image or a portrayal on a computer screen is not an ‘actual' child.” (ECF No. 4 at 33). Schaffer summarily asserted that his waiver of claims and defenses in the plea agreement did “not include the petitioner's federal and state constitutional rights to due process of law.” (ECF No. 4 at 35-36). In denying relief the Arizona Court of Appeals noted the petition was Schaffer's second petition for state post-conviction relief and determined the state trial court had not abused its discretion in denying relief. (ECF No. 4 at 39). The Arizona Supreme Court denied a petition for review. (ECF No. 4 at 50).
Schaffer did not “fairly present” his federal habeas claim, i.e., that his federal constitutional right to due process of law was violated by the enhancement of his sentence, to the Arizona Court of Appeals. Schaffer did not alert the state appellate courts to the federal nature of his claim, as he made but passing reference to his right to due process and did not cite to any published legal opinion “that might have alerted the court to the alleged federal nature of the claim.” Baldwin v. Reese, 541 U.S. 27, 33 (2004). See also Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000) (finding insufficient for purposes of exhaustion that a petitioner made “a general appeal to a constitutional guarantee, ” such as a naked reference to “due process, ” or to a “constitutional error” or a “fair trial”). A habeas petitioner's mere reference to the “Constitution of the United States” in their state court pleadings does not fairly present a federal claim. Gray v. Netherland, 518 U.S. 152, 162-63 (1996).
Additionally, the state habeas court's denial of relief indicates the court found Schaffer's claim procedurally defaulted, concluding that Schaffer waived the claim in his plea agreement and further determining the petition was not timely because Wright did not constitute a significant change in the law allowing for the filing of a successive petition.
If a prisoner has procedurally defaulted a claim in the state courts, he is not entitled to a review of the merits of the claim in a federal habeas action absent a showing of both cause and prejudice. E.g., Ellis v. Armenakis, 222 F.3d 627, 632 (9th Cir. 2000). The Court may also consider the merits of a procedurally defaulted claim if the failure to consider the merits of the claim will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750; Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011). “Cause” is a legitimate excuse for the petitioner's procedural default of the claim, i.e., an objective factor outside of his control, and “prejudice” is actual harm resulting from the alleged constitutional violation. Cooper, 641 F.3d at 327. To establish prejudice, the petitioner must show that the alleged error “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Id. It is the petitioner's burden to establish both cause and prejudice with regard to their procedural default of a federal habeas claim in the state courts. Correll v. Stewart, 137 F.3d 1404, 1415 (9th Cir. 1998).
A petitioner meets the “fundamental miscarriage of justice” exception by “establish[ing] that under the probative evidence he has a colorable claim of factual innocence.” Sawyer v. Whitley, 505 U.S. 333. 339 (1992) (internal quotation marks omitted). To satisfy the “fundamental miscarriage of justice” standard, a petitioner must establish by clear and convincing evidence that no reasonable fact-finder could have found him guilty of the charged offenses. See Dretke v. Haley, 541 U.S. 386, 393 (2004); Wildman v. Johnson, 261 F.3d 832, 842-43 (9th Cir. 2001).
In response to the assertion that he failed to properly exhaust his claim in the state courts Schaffer argues:
[Additionally], there was no procedural default. The respondent's answer seemed to claim that the petitioner “failed to allege any cause and prejudice to excuse his procedural default” []
Petitioner suffered prejudice when two Arizona courts granted relief pursuant to Wright, id., to at least two inmates, but denied relief to the Petitioner.(ECF No. 9 at 3).
With regard to Respondents' allegation that he “failed to state a claim of actual innocence to excuse his ‘procedural default, '” Schaffer notes he has not “challenge[d] the underlying charge, only the enhancement pursuant to A.R.S. § 13-705, which was precisely what Wright, id., stipulated.” (Id.). Schaffer contends “his federal constitutional rights have been violated by the state courts in applying Wright, Id. to others that were similarly situated, but not the petitioner. The equal protection clause upholds this right.” (ECF No. 9 at 4). Schaffer argues that, because the state courts “failed to follow precedent of Wright, id., or even mention it, or that it did, or did not apply to the petitioner, ” “this court must decide the constitutional questions de novo.” (Id.). In his addendum, Schaffer contends the images he possessed were “‘deep fakes' generated by ‘AI, '” proving “that the pornographic images he possessed or attempted to possess were computer generated depictions of children or were otherwise not ‘actual' children, ” and further asserts that he has only recently obtained evidence of this technology. (ECF No. 10 at 2).
Schaffer fails to establish cause for, or prejudice arising from, his procedural default of his federal habeas claim in the state courts. Schaffer was not prejudiced by the procedural default of his claim because the claim is without merit. Wright is not on point with the instant matter. Wright involved a conviction for solicitation to commit molestation of a child; in that matter the defendant conversed with a woman about allowing him to engage in sexual acts with her children, and the Arizona Supreme Court vacated the sentence enhancement under § 13-705 because “[t]he woman was actually a postal inspector, and the children were fictitious.” 243 Ariz. at 119. Because there were no “actual children” involved in the crime, the Arizona Supreme Court held that the crime could not be defined as a dangerous crime against children. Similarly, prior to Schaffer's sentencing and the decision in Wright, the Arizona courts had concluded that a defendant may not be sentenced pursuant to § 13-705 for solicitation of a “minor, ” when the “minor” is a police officer posing as a child under age fifteen. See State v. Regenold, 227 Ariz. 224, 226 (Ariz.Ct.App. 2011).
Wright did not substantively change the law with regard to Schaffer's crimes; prior to Wright the Arizona courts consistently required that an “actual child” be depicted in a pornographic image, rather than an adult posing as a child or a computer-generated entity, to sustain a sentence enhancement pursuant to Arizona's dangerous crimes against children statute. The law Schaffer asserts was established by Wright was actually established years earlier in State v. Hazlett, 205 Ariz. 523, 527 (Ariz.Ct.App. 2003). In Hazlett the state appellate court concluded the relevant sentencing statute's definition of a “minor” necessarily denoted “an actual living human being.” See, e.g., State v. Sims, 2018 WL 2016493, at *2 (Ariz.Ct.App. May 1, 2018). The Hazlett court noted:
Hazlett was decided after the United States Supreme Court issued its decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), which held that a statute is unconstitutional if it defines child pornography as sexually explicit images that appear to depict minors but are produced without using real children.
The term “minor” is defined in A.R.S. § 13-3551(5) (Supp. 2002) as “a person or persons who were under the age of eighteen years of age at the time a visual depiction was created, adapted or modified.” The term “person” is further defined in A.R.S. § 13-105(26) (2001), in pertinent part, as “a human being.”
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This conclusion that the term “minor” as employed in A.R.S. § 13-3553 is intended to refer to an “actual child” finds further support in subsection (C) of the statute, which sets forth the penalty for the offense. This subsection states: “Sexual exploitation of a minor is a class 2 felony and if the minor is under fifteen years of age it is punishable pursuant to § 13-604.01.” This inclusion of A.R.S. § 13-604.01 [the predecessor statute to § 13-705 ], which provides for enhanced penalties for “dangerous crimes against children, ” clearly evidences legislative intent that the subject of the visual depiction be a real person. A “dangerous crime against children” is defined as one “committed against a minor who is under fifteen years of age.” A.R.S. § 13-604.01(L)(1) (Supp. 2002). One cannot commit a crime against a fictitious person. Consequently, there would be no way to reconcile A.R.S. § 13-3553(C) with the balance of the statute if the term “minor” were construed as encompassing something more than actual children. . . .
205 Ariz. 523 at 527-28 (emphasis added).
And as Schaffer himself allows, he does not assert his “actual innocence” of the crimes of conviction, but instead challenges the enhancement of his sentence pursuant to the state statute governing dangerous crimes against children. Accordingly, because Schaffer procedurally defaulted his claim in the Arizona courts and he fails to establish cause for or prejudice arising from the default, and he does not assert his factual innocence, the Court should not consider the merits of Schaffer's claim for federal habeas relief.
C. Schaffer's claim is not cognizable
Schaffer asserts his sentence was improperly enhanced. He contends his sentence could not be enhanced because his crimes did not meet the statutory definition of a dangerous crime against children, arguing the statute requires the crime involve “actual, ” i.e., “non-fictional” children.
Federal habeas relief is not available for alleged errors in the interpretation and application of state law, including a state's sentencing statutes. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Hubbart v. Knapp, 379 F.3d 773, 780 (9th Cir. 2004) (“We may not second-guess the [state court's] construction of its own state law unless ‘it appears that its interpretation is an obvious subterfuge to evade consideration of a federal issue.'”). To the extent Schaffer asserts that his sentences violated his right to due process because they were improperly imposed under Arizona law, he has not stated a cognizable claim for federal habeas relief. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (rejecting the petitioner's claim that a state court misapplied its own aggravating circumstance statutes, because “federal habeas corpus relief does not lie for errors of state law . . . ”); Beaty v. Stewart, 303 F.3d 975, 986 (9th Cir. 2002) (stating that the petitioner's argument that “the trial court improperly imposed consecutive sentences in violation of Arizona law” was “not cognizable in federal habeas proceedings”); Souch v. Schaivo, 289 F.3d 616, 623 (9th Cir. 2002). Although Schaffer asserts that his right to due process was violated because the state erred in the application of its sentencing statutes, the characterization of his claim in this fashion does not render it cognizable on federal habeas review. See Cacoperdo v. Demonsthenes, 37 F.3d 504, 507 (9th Cir. 1994); Dellinger v. Bowen, 301 F.3d 758, 765 (7th Cir. 2002). A petitioner may not “transform a state-law issue into a federal one merely by asserting a violation of due process.” Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996).
To the extent Schaffer asserts the state courts erred by finding his claim precluded in his second post-conviction action, such a claim is also not cognizable in a § 2254 matter. See Poland v. Stewart, 169 F.3d 573, 584 (9th Cir. 1998) (“Federal habeas courts lack jurisdiction . . . to review state court applications of state procedural rules.”). A petitioner's claim that his right to due process was violated during state post-conviction proceedings may not considered on federal habeas review. See Villafuerte v. Stewart, 111 F.3d 616, 632 n.7 (9th Cir. 1997) (denial of due process during state habeas proceedings not addressable in federal habeas petition); Franzen v. Brinkman, 877 F.2d 26 (9th Cir. 1989) (petitioner's alleged due process violation based on a delay in deciding his state petition for post-conviction relief may not be considered on federal habeas review).
III. Conclusion
Schaffer's federal habeas petition was not filed within the AEDPA's statute of limitations and Schaffer has not established he is entitled to equitable tolling of the statute of limitations. Schaffer procedurally defaulted his federal habeas claim in the state courts, and he fails to establish cause for, or prejudice arising from, his procedural default of the claim. Schaffer does not assert his actual innocence of the crimes of conviction and, accordingly, he does not allege a fundamental miscarriage of justice will occur absent consideration of his claim. Additionally, Schaffer fails to state a claim cognizable in a federal habeas action.
IT IS THEREFORE RECOMMENDED that amended petition seeking a federal writ of habeas corpus at ECF No. 4 be DENIED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length.
Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will constitute a waiver of a party's right to appellate review of the findings of fact and conclusions of law in an order or judgment entered pursuant to the recommendation of the Magistrate Judge.
Pursuant to 28 U.S.C. foll. § 2254, R. 11, the District Court must “issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” The undersigned recommends that, should the Report and Recommendation be adopted and, should Schaffer seek a certificate of appealability, a certificate of appealability should be denied because he has not made a substantial showing of the denial of a constitutional right.