Opinion
CV 22-01382 PHX DJH (CDB)
02-15-2023
Jerold Yazzie, Petitioner, v. David Shinn, Attorney General of the State of Arizona, Respondents.
ORDER
CAMILLE D. BIBLES, UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE DIANE J. HUMETEWA:
Petitioner Jerold Yazzie seeks relief pursuant to 28 U.S.C. § 2254.
I. Background
Yazzie was indicted on February 19, 2014, on count 1, sexual abuse, a class 3 felony and count 2, child molestation, a class 2 felony, both dangerous crimes against children. (Indictment, CR 201400339). He was held on these charges without bond. (Determination of Release Conditions, CR 201400339). On March 16, 2016, Yazzie was re-indicted on these two charges and three additional charges: count 3, conspiracy to commit kidnapping, a class 2 felony and dangerous crime against children, count 4, conspiracy to commit second degree murder, a class 1 felony, and count 5, conspiracy to commit tampering with a witness, a class 6 felony. (ROA 1) The additional charges were added after a confidential source reported to police that Yazzie was trying to make arrangements to have [the victim, Yazzie's teen-aged daughter] kidnapped and made unavailable to testify against him at trial.(ECF No. 12-1 at 162 & n.1).
In 2017, after pleading guilty to attempted molestation of a child and sexual abuse,Yazzie was sentenced to a mitigated term of six years imprisonment followed by lifetime probation, with credit for approximately three years of presentence incarceration. (ECF No. 12-1 at 9-12, 14-19, 60-61).
One count of the second indictment was dismissed prior to the settlement conference and two counts were dismissed per the plea agreement. (ECF No. 12-1 at 10, 30, 60-61).
Yazzie filed a timely state action for post-conviction relief. In his pro per postconviction petition Yazzie alleged:
1. Ineffective assistance of counsel because his lawyers failed to provide transcripts of the grand jury proceedings, advise him of his right to request appearance or submit exculpatory evidence, advise him of his right to challenge the grand jury proceedings, argue his indictment constituted double jeopardy, advise him of his right to sever offenses, [and did not] provide him with transcripts of interviews;
2. He was coerced into pleading guilty;
3. He should not have received lifetime probation;
4. He was not advised of his Miranda rights when he was arrested;
5. One of his attorneys had a conflict of interest; and
6. DNA evidence was improperly admitted in his criminal proceedings.(ECF No. 12-1 at 22-24, 26-56).
The state habeas trial court denied post-conviction relief on June 27, 2018. (ECF No. 12-1 at 72-75). The court concluded that by pleading guilty Yazzie had waived all non-jurisdictional defects in his criminal proceedings except those related to the validity of his guilty plea. (ECF No. 12-1 at 72). Accordingly, the court determined the only claims not waived were: that the guilty plea was coerced by defense counsel and the judge during the settlement conference; that the guilty plea was the result of defense counsel's deficient performance; and the existence of a conflict of interest because Mr. Volkmer “stood in” for Yazzie's defense counsel at a brief hearing in August of 2016 (prior to the parties reaching a plea agreement), but then did not recuse the county attorney's office from prosecuting Yazzie's case after Volkmer was elected the Pinal County Attorney shortly before the plea agreement was signed. (ECF No. 12-1 at 72).
The state habeas trial court determined:
Petitioner contends that his guilty plea was involuntary because he was coerced to plead guilty by the settlement conference judge and his attorney. He specifically asserts that he told the judge and his counsel that he could do 25 years if he lost at trial because he would “come back on appeal.” He claims the judge coerced him by stating that “he would never see the light of day” and that his attorney added that he would do such a “pristine job” on his case that he would never be able to appeal. Petitioner's only other claims of coercion are a general statement that his lawyer and the prosecutor used the “unlawful indictment” to threaten and scare him with “unlawful sentences,” and that they coerced him “by overstating the strength of the State's case and understating the Defendant's ability to prove his innocence.” [footnote 1: Petitioner's reference to the “unlawful indictment” and to the “unlawful sentences” are apparently related to his assertion that there were defects in the grand jury proceeding and that his reindictment violated double jeopardy. As noted by the State, in its response, Petitioner waived these claims by pleading guilty. In any event, the claims do not appear to have any merit.]
Petitioner's claim of coercion is flatly contradicted by his statements during the change of plea proceeding that concluded the settlement conference. During the change of plea colloquy with the Court, Petitioner stated he had read the plea agreement and understood it. Transcript of Change of Plea, p. 4, I. 6-10. In fact, when asked “Is there anything about this plea agreement that you don't understand?”, he replied “I understand it completely.” Id. at p.4I. 13. When asked specifically by the judge if anyone threatened him in any way to get him to waive his legal rights and plead guilty, Petitioner unequivocally responded “no, sir.” Id., p. 5, I.1
Solemn declarations in open court carry a strong presumption of verity and constitute a formidable barrier in a subsequent challenge to the validity of the plea. Blackledge v. Allison, 431 U.S. 63, 73-74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). Although trial courts are required “to treat a defendant's factual allegations as true, in evaluating whether a claim is colorable, courts are not required to do so when the record contains evidence that belies such factual allegations and the claims, therefore, do not have the appearance of validity, State v. Lemieux, 137 Ariz.143, 147, 669 P.2d 121, 125 (1983). Furthermore, a challenge to plea proceedings is subject to summary dismissal when based on “conclusory allegations unsupported by specifics” or on “contentions that in the face of the record are wholly incredible.” Allison, 431 U.S. at 7 4, 97 S.Ct. 1621; State v. Leyva, 241 Ariz. 521, 389 P.3d 1266, 1271 (Ct. App. 2017); see also State v. Donald, 198 Ariz. 406, I 21, 10 P.3d 1193, 1201 (App. 2000)
(“To mandate an evidentiary hearing, [a] defendant's challenge must consist of more than conclusory assertions and be supported by more than regret. ”)(ECF No. 12-1 at 73) (all itlaics in original).
The state habeas trial court further concluded:
Petitioner's answers to the questions posed by the Court during the change of plea proceeding contradict and invalidate his belated claim that he entered the plea agreement because he was threatened or otherwise coerced. Petitioner's claim of coercion lacks the appearance of validity and, therefore, does not rise to the level of a colorable claim. Furthermore, Petitioner's general and conclusory statements that counsel overstated the strength of the State's case and understated the Defendant's ability to prove his innocence fail to establish a colorable claim that his guilty plea was involuntary.
The specific statements Petitioner claims his counsel and the settlement judge made also do not amount to undue coercion. A frank discussion of the evidence, the range of sentence, and probable outcome of a trial or an appeal does not amount to coercion. See Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (“While confronting a defendant with the risk of more severe punishment clearly may have a ‘discouraging effect on the defendant's assertion of his trial rights, the imposition of these difficult choices [is] an inevitable'-and permissible ‘attribute of any legitimate system which tolerates and encourages the negotiation of pleas.'”), quoting Chaffin v. Stynchcombe, 412 U.S. 17, 31 (1973). Thus, confronting a defendant with the certainty or probability that, if he determines to exercise his right to plead innocent and to demand a jury trial, he will receive a higher sentence than he would have if he accepted a plea agreement does not render the decision to accept that plea agreement involuntary. See Chaffin v. Stynchcombe, 412 U.S. 17, 30-31, 93 S.Ct. 1977, 1985, 36 L.Ed. 2D 714 (1973).
The judge's alleged statement that he (Petitioner) would “never seeing the light of day” is clearly a metaphorical reference to the indisputable fact that Defendant faced the potential of serving the rest of his life in prison if convicted of the charges against him. Confronting Petitioner with this fact and the improbability of achieving a better result at trial does not amount to undue coercion. Similarly, his counsel's alleged statement that he would do a ‘pristine job” of representing him if the case went to trial is simply not coercive. Counsel's assertion that he would do such a good job that there would be no issues on appeal serves, if anything, to provide reason for Petitioner to have confidence that he would receive high quality representation at trial. The comment therefore is more likely to encourage the Defendant to exercise his right to a trial than to discourage him from doing so. Accordingly, even if Petitioner was essentially told during the settlement conference that it was unlikely he would prevail on appeal and
that he potentially faced the rest of his life in prison if convicted of the charges against him, it does not render his guilty plea involuntary.(ECF No. 12-1 at 74).
The court further found, with regard to Yazzie's ineffective assistance of counsel claims:
... Defendant must allege he “would not have pleaded guilty but for counsel's deficient performance” and must provide “an allegation of specific facts which would allow a court to meaningfully assess why that deficiency was material to [his] decision” to waive his rights. State v. Bowers, 192 Ariz. 419 [] 966 P.2d 1023, 1029 (App. 1998). Petitioner makes numerous complaints about what his attorneys did or did not do. He does not, however, provide any explanation why it would have made any difference in his decision to accept the plea agreement if his attorneys had done everything he now claims they should have. He complains his attorneys failed to raise certain issues, but he does not provide any basis for him to reasonably believe that he may have prevailed on those issues. Similarly, he complains that his counsel should have conferred with him further about his rights, the evidence and possible defenses. He fails, however, to explain what they could have told him that would have convinced him not accept the plea agreement and why it would have convinced him to reject the plea offer. Defendant has presented no specific facts that raise a colorable claim that his counsel was deficient in some way that was material to his decision to waive his rights and plead guilty.(ECF No. 12-1 at 75).
The court, addressing the conflict of interest issue, determined:
Petitioner claims a conflict of interest existed because Kent Volkmer stood in for his counsel at a brief hearing on August 15, 2016. The minute entry reflects that the hearing lasted one minute. Mr. Volkmer was subsequently elected as the Pinal County Attorney and assumed office in January of 2017. Petitioner fails to show any indication of any prejudice whatsoever from the fact of Mr. Volkmer stood in for his assigned counsel at this very brief, nonsubstantive hearing. In the absence of any indication of prejudice, it does not amount to a colorable claim for relief under any ground for relief provided under Rule 32.1, Ariz. R. Crim. P.(ECF No. 12-1 at 75). Yazzie did not seek review in the Arizona Court of Appeals.
Yazzie was released on probation on April 3, 2019. (ECF No. 12-1 at 77). On February 21, 2020, the State filed a petition to revoke probation, asserting Yazzie failed to actively participate in sex offender treatment, violated curfew multiple times, and admitted to driving on a suspended license. (ECF No. 12-1 at 77-78). The petition to revoke was accompanied by a memorandum from the adult probation officer (“PO”) noting Yazzie's general compliance with the terms of his probation and continued employment upon his release from imprisonment. (ECF No. 12-1 at 80). However, the PO further noted:
... from presentence, to upon his release and to this day, Mr. Yazzie states that he is innocent of the crimes in Counts 1 and 2. This has become very problematic and, upon investigation of completed assessments, very unlikely. This Officer personally asked the Clinical Director of The Resolution Group to take the client into group, which was against their policy of trying to treat offenders who claim that they did not commit any crime, in hopes that he would come around after listening to other clients share their stories of initial denial. This did not work and Mr. Yazzie was unsuccessfully discharged from treatment.
On July 18, 2019 and January 16, 2020, Mr. Yazzie failed his Instant Offense polygraph and Instant Offense polygraph retest. Mr. Yazzie went as far to write a confession to the crime out, read it aloud then hand it to the polygrapher and then say to him “this is what the state wants me to say.” Curiously, Mr. Yazzie was able to pass his first maintenance polygraph with the same examiner with no issues on October 24, 2019.
Mr. Yazzie's ABEL exam, taken August 27, 2019 shows that his objective measures of sexual interest are, in said order, caucasian females ages 6-13, caucasian females ages 14-17 and caucasian adult females. Mr. Yazzie's MSI II results read as follows: “Due to Mr. Yazzie's highly deceptive responses the test results are limited.”
On January 21, 2020, Mr. Yazzie was unsuccessfully discharged from treatment. The defendant's therapist, Cassandra Wayterra, stated that in November 2019, the client quickly presented with denial of his offense and presented with justifications throughout his introduction to the group. Mr. Yazzie was encouraged by peers to share his offense and reasons why he is currently in treatment. Nevertheless, he was not responsive to their encouragements. She wrote about her concerns that he is unwilling to admit to his offense. He presented with many cognitive distortions as well as limited engagement within a group setting. Also that the client victim blames and does not take responsibility for the offense.
On March 6, 2020, the defendant met with Dr. Nicole Pondell of Oasis Psychological Services to see if he was suitable for Sex offender treatment. Dr. Pondell stated that the defendant continued to deny his offense despite her attempts to show him his discrepancies with his testing. She found him
not suitable for Sex Offender treatment due to his insistence that he did not commit the offense.
This Officer has spoken with the victim's mother, Brochelle Yazzie and she has been informed of this hearing. She still supports her daughter's account of events yet maintains contact with the defendant.
Mr. Yazzie's Petition to Revoke Probation reflects only four technical violations. However, the information shared in this memo paints a more problematic picture that this Officer has not yet faced in Sex Offender Supervision: What can we do with an offender that claims he is innocent and is untreatable, when the whole sex offender program centers on treatment? Yes, the defendant is in violation of his terms and conditions of probation, but this goes beyond that. No credible sex offender treatment agency will admit him when he is actively denying he committed not only his sex offense, but any sex offense. The probation department cannot properly supervise the defendant on sex offender supervision as the treatment provider is an essential component to the supervision team. This Officer has staffed this case with the state prior to filing this PTR and they have more background on aggravating factors that were present in the presentence phase of this case. Therefore, due to the unique nature of this particular Petition to Revoke, this Officer leaves this matter to the discretion of the Court .(ECF No. 12-1 at 80-81) (emphasis in original).
Although he initially denied the probation violations, Yazzie admitted the violations at a hearing conducted May 29, 2020, at which Yazzie was represented by counsel. (ECF No. 12-1 at 83-94). Probation was revoked and Yazzie was sentenced to the presumptive term of five years' imprisonment on the second count of conviction, with credit for 78 days served prior to sentencing, followed by a term of community supervision to be determined by the Department of Corrections. (ECF No. 12-1 at 85).
Yazzie filed a notice of post-conviction relief on July 6, 2020. (ECF No. 12-1 at 9092). He was appointed counsel, who reviewed the record and averred they were unable to find any colorable claims to raise on Yazzie's behalf. (ECF No. 12-1 at 107, 109-10). The trial court summarily dismissed the post-conviction proceedings on May 14, 2021, noting Yazzie did not file a pro se petition although given additional time to do so. (ECF No. 121 at 113-14, 116). Yazzie did not seek review in the Arizona Court of Appeals.
On April 12, 2022, Yazzie filed another notice and petition for state post-conviction relief, asserting his successive petition should be heard on the merits because he stated claims pursuant to Rule 33.1(g) and 33.1(e) of the Arizona Rules of Criminal Procedure, i.e, that there had been a significant change in the law that would overturn his sentence and the existence of newly-discovered material facts which implicated the validity of his guilt and sentence. (ECF No. 12-1 at 118-20). He argued an amendment to Arizona Revised Statutes § 13-902 required a shorter probation term. He further asserted he never received the written notice of his probation violation and he did not have counsel during the revocation proceedings. (ECF No. 12-1 at 122-28). The trial court summarily dismissed the petition without ordering the State to respond, concluding Yazzie's claims were facially deficient and did not raise present a material issue of fact or law that would entitle him to relief. (ECF No. 12-1 at 137). The court noted there was no applicable change in the sentencing statute and, even assuming a change, there was no indication the purported change would apply retroactively to Yazzie. (ECF No. 12-1 at 134-37). The court also noted Yazzie was served with the petition to revoke his probation, and that he had counsel during his probation violation proceedings. (Id.).
On April 28, 2022, Yazzie sought review of the trial court's denial of postconviction relief. (ECF No. 12-1 at 139-42). He argued a 2021 amendment to § 13-902 applied to his sentence and was retroactive based on the Fifth, Eighth, and Fourteenth Amendments. (ECF No. 12-1 at 140). Yazzie also argued that his post conviction attorney's notice of no colorable claims to assert in his prior post conviction action did not “terminate the case.” (ECF No. 12-1 at 141). Yazzie also filed an “addendum,” claiming he had never admitted to any crimes or charges; the additional charges in the second indictment were added because a paid informant provided police with a forged note purporting to be from Yazzie; and that his re-indictment constituted double jeopardy and violated his right to due process. (ECF No. 12-1 at 150-53).
“The confidential informant was known at a later date by my paid counsel that this confidential informant had a laundry list of priors of this magnitude in Maricopa County to evade justice.” (ECF No. 12-1 at 152).
In a memorandum decision issued September 26, 2022, the state appellate court granted review but denied relief. State v. Yazzie, 2022 WL 4462027, at *1 (Ariz.Ct.App. Sept. 26, 2022). The court noted Yazzie's petition was successive and affirmed the habeas trial court's conclusion Yazzie's claims did not fall within the exceptions to the bar of claims presented in a successive petition. The court affirmed the habeas trial court's finding that Yazzie failed to show any changes to the statute or establish it applied retroactively to his sentence. Id. at *2. The court also determined Yazzie failed to explain his claim about his post-conviction counsel's performance, and declined to address his new claims in the addendum because they were not raised in the habeas trial court. Id. at *2 & n.1. The appellate court further concluded:
In the addendum to his petition for review, Yazzie also argues that a certain document related to a confidential informant in his case was not in his handwriting and that an amended indictment constituted a violation of the prohibition against double jeopardy. Because Yazzie did not raise these claims in his petition below, we do not consider them. See Ariz. R. Crim. P. 33.16(c)(2)(B) (appellate court reviews issues presented to trial court); State v. Ramirez, 126 Ariz. 464, 468 (App. 1980) (appellate court will not address arguments asserted for first time in petition for review).Id. at *2 n.1. Yazzie did not seek review in the Arizona Supreme Court and the Court of Appeals' mandate issued December 7, 2022. (ECF No. 12-1 at 172).
Yazzie's remaining § 2254 claims allege:
1. His right to due process was violated by his reindictment based on information provided by a disreputable jailhouse informant, i.e., “some specific and relevant allegations” that were later dismissed by the trial court, in violation of his Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendment rights (ECF No. 7 at 6);
2. His Fourth Amendment right to be free of an unreasonable search and seizure was violated by the State placing a confidential informant in his housing unit “to obtain and solidify convictions.” (ECF No. 7 at 7).
Respondents contend Yazzie's remaining habeas claims are not timely, are procedurally defaulted, and are not cognizable on habeas review.
II. Analysis
A. Statute of limitations
Because Yazzie's claims for relief challenge his 2017 convictions, the claims are barred by the one-year statute of limitations specified in the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”).
The relevant triggering event for purposes of the AEDPA's statute of limitations is “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). In this matter, there are two judgments that could be used to calculate the timeliness of the § 2254 petition: (1) the judgment of conviction pursuant to Yazzie's guilty plea and the imposition of a sentence of a term of imprisonment followed by probation; and (2) the judgment that revoked Yazzie's probation and imposed a sentence of five years' imprisonment on the second count of conviction.
Under 28 U.S.C. § 2244(d)(1)(A), the one-year statute of limitations for challenging any substantive issues relating to a trial court judgment of conviction resulting in a sentence of probation begins to run when the judgment of conviction becomes final. See King v. Ryan, 2016 WL 536654, at *3-4 (D. Ariz. Jan. 19, 2006) (analyzing the timeliness of a habeas petition by first determining whether the petitioner was challenging his sentence upon original conviction or sentence upon revocation of probation). In contrast, any claims arising from the revocation of probation would begin to run when the judgment that revoked the petitioner's probation became final. Id. (collecting cases, including Morgan v. Ryan, 2011 WL 6296763, at *7 (D. Ariz. Nov. 28, 2011) (analyzing the timeliness of a habeas petition by first determining whether the petitioner was challenging their sentence upon original conviction or their sentence upon revocation of probation), and Nost v. Broadhead, 2015 WL 5446810, at *3 (D. Ariz. Aug. 10, 2015) (finding that habeas petition challenging original judgment of guilt was time-barred even though the petitioner's probation was revoked after the limitations period had expired).
Yazzie's federal habeas claims, challenging his re-indictment and alleging the State placed a confidential informant in his housing unit to obtain information to “solidify” his convictions, involve his original convictions. Accordingly, the statute of limitations on Yazzie's instant federal habeas petition began to run when his conviction on the substantive crimes became final. Additionally, the statute of limitations was statutorily tolled during the pendency of his first “of right” post-conviction proceedings. See 28 U.S.C. § 2244(d)(2).
Because Yazzie pleaded guilty and waived his right to appeal, his “of right” postconviction proceedings were his first state action for post-conviction relief. The state habeas trial court denied post-conviction relief on June 27, 2018 (ECF No. 12-1 at 72-75), and Yazzie did not seek review in the state appellate court. Accordingly, because the AEDPA's one-year statute of limitations was statutorily tolled only during the pendency of these proceedings, it was no longer tolled and began to run on July 28, 2018, the day after the time expired for Yazzie to seek review by the appellate court of the state trial court's denial of post-conviction relief, and expired on July 28, 2019. Accordingly, Yazzie's federal habeas petition, filed August 16, 2022, was filed three years after the statute of limitations expired and is not timely. Additionally, although Yazzie filed a second state action for postconviction relief after his probation was revoked, on July 6, 2020, this action did not revive or restart the limitations period with regard to the claims in the federal habeas petition challenging his convictions. 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).
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 and emphasis added). See also Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010). The petitioner must establish a “causal connection” between the extraordinary circumstances and their failure to file a timely petition. See Bryant v. Arizona Att'y Gen., 499 F.3d 1056, 1060 (9th Cir. 2007). And 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). Notably, any alleged ignorance of the statute of limitations or inability to properly calculate the running of the statute of limitations does not warrant equitable tolling, as the “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). Additionally, 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.
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, 569 U.S. at 386. “[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). “To receive equitable tolling, a petitioner bears the burden of showing (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way. [] ... the threshold necessary to trigger equitable tolling ... is very high, lest the exceptions swallow the rule.” 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, 620 F.3d at 959; Waldon-Ramsey, 556 F.3d at 1011; Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2004).
In his reply to the answer to his habeas petition, Yazzie asserts his habeas petition is timely because he has newly discovered evidence bearing on the validity of his conviction. He alleges that during his pre-trial detention he was housed “with a well known Confidential Informant.” (ECF No. 16 at 2). He alleges the State used this confidential informant as a witness and his counsel “never challenged the State's witness of whom was this confidential informant, which created a tainted case against the Petitioner.” (Id.). Yazzie asserts “additional charges came to [existence] due to this illegal negotiation between the State and this confidential informant.” (ECF No. 16 at 3). Yazzie contends the use of this confidential informant's statements violated his right to due process and his counsel's alleged failure to “challenge” the confidential informant's statements violated his right to the effective assistance of counsel. (Id.). Yazzie asserts he has “demonstrated good cause and good faith as to why [the] Court shall accept this objection and grant relief on behalf of the plaintiff. [sic]” (ECF No. 16 at 4).
Yazzie fails to establish a basis for equitable tolling of the statute of limitations. Yazzie fails to establish there were extraordinary circumstances beyond his control that made it impossible for him to timely file a federal habeas petition within one year of the conclusion of his state criminal proceedings regarding his convictions. Yazzie states his counsel knew about the confidential informant but failed to preclude the informant's information from being used in his criminal proceedings. Because he allows the existence of the confidential informant and the information provided by the informant were known prior to the entry of the guilty pleas, the existence of the informant and the use of any information is not “newly discovered” evidence. Furthermore, the statements provided by the confidential informant appear to have been related to the charges that were dismissed prior to and pursuant to Yazzie's entry of a guilty plea; the charges resulting in a conviction were not predicated on the informant's allegedly false statements. Furthermore, Yazzie's allegations regarding the informant do not establish his actual, factual innocence of the crimes of conviction and, accordingly, he is not entitled to pass through the “actual innocence” gateway to a hearing on the merits of his federal habeas claims. See, e.g., McQuiggin v. Perkins, 569 U.S. 383, 386 (2013), citing Schlup v. Delo, 513 U.S. 298, 329 (1995); Stewart v. Cate, 757 F.3d 929, 937-38 (9th Cir. 2014).
B. Exhaustion and procedural default
Absent specific circumstances, the Court may only grant federal habeas relief on a claim which has been “properly” exhausted in the state courts. See, e.g., 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); Date v. Schriro, 619 F.Supp.2d 736, 762-63 (D. Ariz. 2008). In non-capital cases arising in Arizona, the “fair presentment” and “highest court” tests are satisfied if the habeas petitioner presented the federal habeas claim to the Arizona Court of Appeals in their direct appeal or in a properly-filed state action for post-conviction relief. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Date, 619 F.Supp.2d at 762-63.
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 reference, in the state court, the same operative federal constitutional guarantee relied on by the petitioner in his § 2254 petition; additionally, in both the state court action and his § 2254 pleading the petitioner must supply the same facts supporting the claim. See Walden v. Shinn, 990 F.3d 1183, 1195 (9th Cir. 2021); Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009). The fair presentation requirement mandates that a state prisoner alert the state appellate court to the presence of a specific federal claim in his appellate brief; simply labeling a claim “federal” or “constitutional” or expecting the state court to read beyond the four corners of the petition is insufficient to exhaust a federal constitutional claim in the state courts. See, e.g., Baldwin v. Reese, 541 U.S. 27, 33 (2004).
A federal habeas petitioner has not exhausted a federal habeas claim if he still has the right to raise the claim “by any available procedure” in the state courts. 28 U.S.C. § 2254(c). Because the exhaustion requirement refers only to remedies still available to the petitioner at the time they file their action for federal habeas relief, it is satisfied if the petitioner is procedurally barred from pursuing their claim in the state courts. See, e.g., Woodford v. Ngo, 548 U.S. 81, 92-93 (2006). If it is clear the habeas petitioner's claim is procedurally barred pursuant to state law, the claim is exhausted by virtue of the petitioner's “procedural default” of the claim. See, e.g., Id. at 92. Pursuant to this doctrine, an implied procedural bar may be applied to unexhausted claims where, as in this matter, a state's procedural rules regarding waiver and the preclusion of claims make a return to state court futile. Coleman, 501 U.S. at 735 n.1; Franklin v. Johnson, 290 F.3d 1223, 123031 (9th Cir. 2002).
[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).
The doctrine of procedural default provides that a federal court may not review a habeas claim when a state court declined to consider the merits of the claim on the basis of an “adequate and independent” state procedural rule, such as those governing waiver and the preclusion of claims. See, e.g., Atwood v. Ryan, 870 F.3d 1033, 1059 (9th Cir. 2017). The doctrine bars a federal court from considering the merits of a habeas claim when the state court explicitly invoked a state procedural rule to bar the claim, even if the state court does so as a separate basis for its decision. See Williams v. Filson, 908 F.3d 546, 579 (9th Cir. 2018), citing Moran v. McDaniel, 80 F.3d 1261, 1269 (9th Cir. 1996).
However, “a state court's application of a procedural rule can preclude federal habeas review only if the rule is independent of federal law and adequate to support the judgment.” Williams, 908 F.3d at 577. See also Coleman, 501 U.S. at 728. To be “independent,” “the state law basis for the decision must not be interwoven with federal law.” LaCrosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001). A state court's application of a procedural bar does not become interwoven with and dependent upon an antecedent federal constitutional rule where the state court discusses the merits of a claim solely to determine whether the petitioner can establish cause and prejudice to overcome a procedural default. See Williams, 908 F.3d at 579; Moran, 80 F.3d at 1269. To be deemed adequate, the state procedural rule on which the state court relied must be firmly established and consistently applied. E.g., Beard v. Kindler, 558 U.S. 53, 60 (2009); Bennett v. Mueller, 322 F.3d 573, 583 (9th Cir. 2003). A state rule is considered consistently applied and well-established if the state courts follow it in the “vast majority of cases.” Scott v. Schriro, 567 F.3d 573, 580 (9th Cir. 2009), citing Dugger v. Adams, 489 U.S. 401, 417 n.6 (1989).
If a prisoner has procedurally defaulted a claim in the state courts, review of the merits of the claim is barred absent a showing of both cause and prejudice. E.g., Ellis v. Armenakis, 222 F.3d 627, 632 (9th Cir. 2000). Under the “cause” prong of this test, Yazzie bears the burden of establishing that some objective factor external to the defense impeded his compliance with Arizona's procedural rules for the presentation of claims arising from his convictions. See Moorman v. Schriro, 426 F.3d 1044, 1058 (9th Cir. 2005); Vickers v. Stewart, 144 F.3d 613, 617 (9th Cir. 1998); Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996). Examples of cause sufficient to excuse a procedural default include a showing that the factual or legal basis for a claim was not reasonably available, or that “some interference by officials” made compliance with the State's procedural rules for presenting the claim impracticable. Murray v. Carrier, 477 U.S. 478, 488 (1986). To establish prejudice, a habeas petitioner must show the alleged error “worked to his actual and substantial disadvantage, infecting his entire [criminal proceedings] with error of constitutional dimensions.” Murray, 477 U.S. at 494 (internal quotations and emphasis omitted). See also Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011). 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. See Djerf v. Ryan, 931 F.3d 870, 880 (9th Cir. 2019); Date, 619 F.Supp.2d at 766.
Petitioners who default federal habeas claims in state court may also obtain review if they show that failure to consider the claims would result in a fundamental miscarriage of justice. See, e.g., Bradford v. Davis, 923 F.3d 599, 610 (9th Cir. 2019). A petitioner meets the “fundamental miscarriage of justice” exception only by establishing that, under the probative evidence, he has a colorable claim of factual, rather than legal, innocence. Bousley v. United States, 523 U.S. 614, 623 (1998) (stating that “actual innocence means factual innocence, not mere legal insufficiency”); Cook v. Schriro, 538 F.3d 1000, 1028 (9th Cir. 2008). See also Valencia v. Ryan, 2012 WL 1681991, at *4 (D. Ariz. Jan. 9, 2012). Because the required showing is one of factual innocence, to surmount a procedural default the petitioner must present “‘new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eye-witness accounts, or critical physical evidence-that was not presented at trial.'” Cook, 538 F.3d at 1028, quoting Schlup v. Delo, 513 U.S. 298, 324 (1995). See also McQuiggin, 569 U.S. at 399 (explaining the significance of an “[u]nexplained delay in presenting new evidence”); Lee v. Lampert, 653 F.3d 929, 945 (9th Cir. 2011). To pass through the actual innocence/Schlup gateway to a hearing on the merits of the defaulted claim, a petitioner “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” McQuiggin, 569 U.S. at 399, quoting Schlup, 513 U.S. at 327. The miscarriage of justice exception to the procedural default rule “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).
Yazzie did not “fairly present” the claims alleged in his federal habeas petition in a “properly filed” state action for post-conviction relief. He did not raise his federal habeas claims in his only properly-filed state action for post-conviction relief, i.e., his first such action.
Yazzie arguably raised a claim similar to his first federal habeas claim in his third action for state post-conviction relief, but did not present the claim in a procedurally correct manner. Yazzie did not present the claim to the state habeas trial court, which denied relief on the petition based on the conclusion that the petition was successive. Yazzie appealed this decision, raising the same claim presented to the state court regarding a purported change in the state statute governing his sentence, and mentioning his first federal habeas claim in an addendum to his petition for review. In a memorandum decision issued September 26, 2022, the state appellate court granted review but denied relief. State v. Yazzie, 2022 WL 4462027, at *1. The court noted Yazzie's petition was successive and affirmed the trial court's conclusion Yazzie's claims did not fall within the exceptions to the bar of claims presented in a successive petition. The appellate court further concluded, with regard to Yazzie's claim regarding the confidential informant:
In the addendum to his petition for review, Yazzie also argues that a certain document related to a confidential informant in his case was not in his handwriting and that an amended indictment constituted a violation of the prohibition against double jeopardy. Because Yazzie did not raise these claims in his petition below, we do not consider them. See Ariz. R. Crim. P. 33.16(c)(2)(B) (appellate court reviews issues presented to trial court); State v. Ramirez, 126 Ariz. 464, 468 (App. 1980) (appellate court will not address arguments asserted for first time in petition for review).Id. at *2 n.1
Yazzie did properly present the same claim regarding the confidential informant presented in his habeas petition to the state appellate court in a procedurally correct manner, as he failed to present the claim first to the state habeas trial court. The appellate court found the claim procedurally precluded by application of the Arizona Rules of Criminal Procedure, i.e., Rule 33.16(c)(2)(B), formerly Rule 32.9(c). The Court may not review the claim because the state appellate court declined to consider the merits of the claim on the basis of an “adequate and independent” state procedural rule. See Pinzon v. Ryan, 2015 WL 11071468, at *5 (D. Ariz. Sept. 25, 2015) (“The [state] appellate court found that Petitioner did not raise these issues in the petition for post-conviction relief that he filed in the trial court, and under Rule 32.9(c) he was precluded from presenting those issues on appeal.”); Hershfeldt v. Schriro, 2007 WL 951965, at *1 (D. Ariz. Mar. 28, 2007) (“Under state law a claim may not be raised for the first time in a petition for review from the denial of post-conviction relief . . .”).
In his reply in support of his habeas claims Yazzie does not present cause for, or prejudice arising from the procedural default of his federal habeas claims in the state courts. Nor does he establish a fundamental miscarriage of justice will occur absent a consideration of the merits of his federal habeas claims.
III. Conclusion
Yazzie's federal habeas petition was not filed within the applicable statute of limitations, and he fails to demonstrate he is entitled to equitable tolling of the statute of limitations. Yazzie procedurally defaulted his federal habeas claims by failing to fairly present the claims to the Arizona Court of Appeals in a procedurally correct manner, and he fails to establish cause for or prejudice arising from his procedural default of his claims.
IT IS THEREFORE RECOMMENDED that the amended petition seeking a federal writ of habeas corpus at ECF No. 7 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).
Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts requires the district court to “issue or a deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254. The undersigned recommends that, should the Report and Recommendation be adopted and, should Yazzie 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.