Opinion
CV-23-02390-PHX-MTL (DMF)
06-11-2024
Adam Paul Blomdahl, Petitioner, v. Ryan Thornell, et al., Respondents.
REPORT AND RECOMMENDATION
HONORABLE DEBORAH M. FINE UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE MICHAEL T. LIBURDI, UNITED STATES DISTRICT JUDGE:
This matter is on referral to the undersigned for further proceedings and a report and recommendation pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure (Doc. 10 at 6).
I. PROCEDURAL HISTORY AND POSTURE
Self-represented Petitioner Adam Paul Blomdahl (“Petitioner”), who is confined in the Arizona State Prison Complex-Eyman, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition”) (Doc. 1). As the Court previously observed, “Petitioner was convicted in Maricopa County Superior Court, case #CR-2016- 000575, of one count of first-degree murder and two counts of aggravated assault with a deadly weapon or dangerous instrument” for which he “was sentenced to life imprisonment for the murder conviction and twelve years in prison for each of the aggravated assault convictions, with the three terms to be served consecutively” (Doc. 10 at 1-2).
The Petition raises several claims (Doc. 1). This Court's Screening and Service Order described the Petition's claims as follows:
Petitioner raises four grounds for relief, claiming:
(1) his Sixth and Fourteenth Amendment rights to “effective assistance and due process [were] violated, preventing [him] from presenting all of his causation evidence in [his] defense”;
(2) his Sixth and Fourteenth Amendment rights to “effective assistance and due process [were] violated[,] preventing [him] from rec[ei]ving a fair trial” and “excessive bond [was] imposed, while the State used this as a tactical advantage”;
(3) his First and Fourth Amendment rights “to court access and to be secure in his person, papers & effects [were] violated by an implicated Phoenix P.D., false reporting and illegal warrants”; and
(4) his Second and Fifth Amendment rights of “freedom to bear arms and to be secure in his property and without it [being] taken unless w[ith] just compensation” were violated because “[t]he State gave a jury instruction about (possession) when [Petitioner] was not a prohibited possessor & should have given a Willits instruction.”(Doc. 10 at 2). The Court required Respondents to answer the Petition (Id.).
Respondents filed a Limited Answer raising the affirmative defenses of untimeliness and procedural default as well as bringing to the Court's attention Petitioner's ongoing post-conviction relief (“PCR”) proceedings in the Maricopa County Superior Court (Doc. 20). Petitioner replied in support of his Petition but also apparently attempting to broaden his habeas claims to include ineffective assistance of counsel other than his trial counsel (Docs. 22, 23). Petitioner has also made various other filings, including several motions (See, e.g., Docs. 14, 16, 26).
Because of Petitioner's ongoing state court PCR proceedings, the Court ordered that Respondents file additional records from such ongoing PCR proceedings with the Court and clarify Respondents' position about requested disposition of the Petition (Doc. 24). Respondents filed necessary additional records per the Court's Order and supplemented their position (Doc. 25).
After careful review, it is recommended that the Petition be dismissed given Petitioner's failure to exhaust the Petition's claims but that the dismissal be without prejudice given Petitioner's pending state court PCR proceedings.
II. STATE COURT PROCEEDINGS
A. Trial Court Proceedings
Petitioner was charged in Maricopa County Superior Court in case number CR-2016-000575 with Count 1: first degree murder, a class 1 dangerous felony; Count 2: aggravated assault, a class 3 dangerous felony; and Count 3: aggravated assault, a class 3 dangerous felony (Doc. 20-1 at 6-8). A jury convicted Petitioner of all three counts (Id. at 10-12). The jury found aggravating circumstances for all three counts (Id. at 22-27). The trial court sentenced Petitioner to life in prison for Count 1, a “less than maximum” term of 12 years on Count 2, and a “less than maximum” term of 12 years on Count 3, with all sentences to run consecutively; Petitioner received presentence incarceration credit of 1191 days (Id. at 14-20). The Court retained jurisdiction over restitution, holding such open for ten years (Id. at 17).
B. Direct Appeal
Through counsel, Petitioner timely filed a notice of appeal of the convictions (Id. at 29-30). Through appointed appellate counsel for his direct appeal, Petitioner raised five issues (Id. at 32-93): (1) Did the trial court err by revoking Petitioner's right to self-representation during his opening statement when he told the jury that he was a veteran, in violation of a motion in limine? (2) Under due process and Indiana v. Edwards, did the trial court err in granting Petitioner's motion for self-representation without addressing that Petitioner has a Veteran's Administration appointed fiduciary? (3) Did the court violate Petitioner's right to be present when it ruled on ten motions in Petitioner's absence as a self-represented litigant who refused to be transported for a pretrial hearing? (4) Did the trial court err by denying Petitioner's requested instructions for lesser-included offenses? (5) Did the court err in its presentence incarceration credit calculation? The state's answering brief opposed Petitioner's arguments and requested that Petitioner's convictions and the sentencing court's presentence incarceration credit calculation be affirmed (Id. at 95-137).
554 U.S. 164 (2008).
On March 30, 2021, the Arizona Court of Appeals issued its memorandum decision affirming Petitioner's convictions, awarding Petitioner an additional eight days of presentence incarceration credit on Count 1, and correcting a clerical error in the sentencing order regarding a statutory citation (Id. at 139-146). Through appointed counsel, Petitioner filed a Petition for Review with the Arizona Supreme Court, which was denied on September 10, 2021 (Id. at 148-169).
In addition to his direct appeal and through different counsel, Petitioner subsequently filed an appeal relating solely to the superior court's order, separate from the judgment of conviction, awarding restitution resulting from a June 2021 request for restitution from a victim's relative. State v. Blomdahl, No. 1 CA-CR 21-0574, 2022 WL 16570981, at *1 (Ariz.Ct.App. Nov. 1, 2022). The restitution appeal was filed after the Petition for Review with the Arizona Supreme Court was denied in Petitioner's direct appeal proceedings. Id. at *2. On November 1, 2022, the restitution appeal was denied and the restitution order was affirmed. Id. at *4. On December 8, 2022, the mandate issued in the restitution appeal. (Id. at 209).
C. PCR Proceedings
1. Dismissed PCR proceedings
On April 2021, Petitioner filed a “Filing for Rule 32 (PCR) Post Conviction Relief” handwritten by Petitioner on notebook paper in which Petitioner wrote that he was ready to start the Rule 32 PCR process (Doc. 20-1 at 171). In November 2021, Petitioner filed a pro se PCR notice using the standard court form; Petitioner requested court appointed counsel in the November 2021 PCR notice (Id. at 179-184). Also in November 2021, Petitioner's appointed direct appeal counsel Jennifer Roach filed a PCR notice in the superior court on Petitioner's behalf (Id. at 173-177). Counsel Alane M. Ortega was appointed to represent Petitioner in the PCR proceedings, a briefing schedule was set, and other standard PCR orders were entered (Id. at 186-187).
In April 2022, Petitioner's appointed PCR counsel Alane M. Ortega filed a motion requesting that the superior court “stay the Post-Conviction Relief proceedings and suspend all applicable dates for filing or in the alternative grant an extension of time to file the Petition for Post-Conviction Relief” (Id. at 189). Petitioner's PCR counsel stated in the motion that “[a]ppellate attorney Michael Dew is currently assigned to file the Appeal on behalf of [Petitioner]” and the current deadline for the opening brief is April 28, 2022 (Id.). In the motion, Petitioner's PCR counsel requested a sixty (60) day extension to review the complete file, transcripts and the Anders Brief in this matter” (Id.). Petitioner's PCR counsel did not state that Petitioner's direct appeal had been completed, and Petitioner's PCR counsel did not state that Petitioner's pending appeal related only to the restitution order issued subsequent to the direct appeal (Id.). Also, appointed PCR counsel Alane M. Ortega's motion was inaccurate in that there had been no Anders brief filed on Petitioner's behalf even during his direct appeal and subsequent petition for review of his convictions and sentences to the state supreme court.
These were significant omissions because PCR filing deadlines run from conclusion of direct appeal, not conclusion of restitution order appeals.
Anders v. California, 386 U.S. 738, 739 (1967).
On April 28, 2022, in response to the motion by Petitioner's PCR counsel, the superior court issued an order denying a stay of the PCR proceedings but extending the PCR petition due date until May 31, 2022; the order stated that:
[t]he Court has reviewed [Petitioner]'s “Motion to Stay and Extension of Time to File the Petition for Post-Conviction Relief” filed on April 11, 2022. The Court finds no basis for a stay but will permit an extension. In lieu of moving for extensions, [Petitioner] may also request that the Court dismiss the Rule 32 proceeding without prejudice with leave to re-file when his direct appeal has concluded. In the latter event, post-conviction relief counsel would remain counsel of record and would need to refile the Notice within 30 days of issuance of the mandate.(Id. at 192).
On May 26, 2022, Petitioner's appointed PCR counsel Alane M. Ortega filed a motion to dismiss the PCR proceedings without prejudice stating:
COMES NOW, [Petitioner] by and through Counsel Undersigned and respectfully requests that this Court dismiss the PCR in this matter without prejudice. This is not made for the purpose of delay, but rather the [Petitioner] has currently an active appeal with the Arizona Supreme Court and as a result this matter cannot proceed concurrently with this appeal. Once the appeal is resolved [Petitioner] reserves the right to seek further relief form this Court through the filing of a PCR Notice and request for briefing in accordance with AZRCP Rule 32 et. seq.(Id. at 194-195). Like in the previous filing by Petitioner's appointed PCR counsel, Petitioner's appointed PCR counsel did not recognize in the filing that the pending appeal was not Petitioner's direct appeal, but an appeal of the separate, subsequent restitution order. Further, the May 26, 2022, motion incorrectly represented that the PCR proceedings could not proceed concurrently with the ongoing appeal, which was a restitution appeal.
The PCR proceedings could not proceed during Petitioner's direct appeal, but the direct appeal had been concluded before the appointment of Petitioner's PCR counsel.
On June 6, 2022, Maricopa County Superior Court Judge Dewain D. Fox granted the motion, stating:
The Court has reviewed [Petitioner] 's “Motion to Dismiss the Petition for Post-Conviction Relief without Prejudice” filed on May 26, 2022 and “Crime Victim's Motion for Order Requiring Service on Counsel for Crime Victim” filed on May 9, 2022. [Petitioner] has requested that the Court dismiss the Rule 32 proceeding without prejudice with leave to re-file when his direct appeal has concluded.
IT IS ORDERED dismissing the Rule 32 proceeding, with leave to re-file at any time within 30 days following the issuance of the order and mandate on direct appeal, pursuant to Ariz. R. Crim. P. 32.4(b)(3)(A). This order does not discharge Alane Ortega from her representation of [Petitioner] in this proceeding.
IT IS FURTHER ORDERED granting “Crime Victim's Motion for Order Requiring Service on Counsel for Crime Victim” and directing counsel to endorse Victim's counsel Thomas E. Lordan on all filings.(Id. at 197).
Despite that Petitioner's previously appointed PCR counsel Alane M. Ortega was not discharged from further PCR representation of Petitioner when the Maricopa County Superior Court Judge Dewain D. Fox granted the motion to dismiss the first PCR proceedings without prejudice and with leave to refile, there is nothing in the record provided by Respondents reflecting a filing by Petitioner's previously appointed PCR counsel Alane M. Ortega at any time after she filed the motion to dismiss (Id. at 194-197).
Following the appellate decision affirming the restitution order in November 2022, Petitioner filed a second, pro se form Notice of Post-Conviction Relief in December 2022 (Id. at 199-202). The notice alleged the following claims:
(1) was not given fair rule 11 evaluation.
(2) ex parte hearing to schedule trial.
(3) incomplete state disclosure of evidence
(4) state tampering w/, fabricating and concealing evidence.
a. tampered w/ DNA evidence on car, medical evidence regarding [the victim], possession instruction.
b. fabricating fingerprint evidence and moneyevd.
c. concealing accident reconstructionist expert investigation, lost and destroyed clothing of alledged [ sic ] victim.
(5) violating defendants right to: present complete defense, fair hearings and the right to De heard
(6) swatting, false reporting, accomplice, weaponized 911, illegal warrants w/o probable cause, implicated police & OME, on behalf of State.(Id. at 201 (all as set forth in original)).
Petitioner also filed a request for Petitioner's previously appointed PCR counsel Alane M. Ortega to represent him in the PCR proceedings; the request was signed by Petitioner in December 2022, but not filed with the superior court until January 11, 2023 (Id. at 208-209).
On February 6, 2023, Maricopa County Superior Court Judge Jennifer Ryan- Touhill denied Petitioner appointment of PCR counsel and dismissed the PCR proceedings, finding the proceedings successive and noting that Petitioner's “previous Rule 32 proceeding was unsuccessful” (Id. at 204-206). That was the order's only reference to or description of the dismissal without prejudice of Petitioner's previous, timely, first PCR proceedings on motion of Petitioner's previously appointed PCR counsel Alane M. Ortega (See id. at 194-197).
“A court order is entered when the clerk files it.” Ariz. R. Crim. P. 1.10(c) (formerly Ariz. R. Crim. P. 1.3(c)).
Petitioner acknowledges that he did not file a petition for review with the Arizona Court of Appeals of the dismissal of the PCR proceedings (Doc. 1 at 5).
In their Limited Answer and their supplement (Docs. 20, 25), Respondents call these Petitioner's third PCR proceedings and the Court followed suit in an order for additional records (Doc. 24), but the pending PCR proceedings may reasonably be construed as continuation of Petitioner's first PCR proceedings which were dismissed without prejudice with leave to refile after the issuance of the mandate in what was actually Petitioner's restitution appeal rather than his direct appeal.
On February 9, 2023, the superior court addressed Petitioner's filing which had been signed in December 2022 and filed on January 11, 2023, describing such as an “Initiation of Rule 32 Proceeding Following Restitution Appeal” (Id. at 211). In addressing the filing that had been made before the February 6, 2023, dismissal of the PCR proceedings, Maricopa County Superior Court Judge Kevin B. Wein stated in the February 9, 2023, order:
The Court has received and considered Defendant's Notice of PostConviction Relief filed on January 11, 2023. The notice initiating a Rule 32 proceeding has been timely filed as to the mandate in the restitution appeal issued on December 8, 2022. Defendant also requested the appointment of counsel. Pursuant to Defendant's Declaration of Indigency, the Court finds Defendant is indigent.(Id.). The superior court appointed counsel Amy Bain to represent Petitioner in the PCR proceedings and set an initial briefing schedule (Id. at 211-213). The deadline for Petitioner's state PCR counsel to file a PCR petition was extended multiple times: https://perma.cc/Z48L-RKMB (last accessed on April 12, 2024).
On May 3, 2024, appointed PCR counsel Amy Bain filed a notice stating that she had reviewed only the “materials in this matter with consideration given to post-conviction relief as to the mandate in the restitution appeal and as to claims brought under Rule 32.1(d), 321.1(e) [sic], 32.1(g) and 32.1(h)” and that she was “unable to find any claims for relief to raise in post-conviction relief proceedings” (Doc. 25-1 at 14-16). Appointed PCR counsel Amy Bain's notice also stated that “Petitioner should be entitled to assert his claims as to the mandate in the restitution appeal and as to claims brought under Rule 32.1(a), 32.1(d), 321.1(e) [sic], 32.1(g) and 32.1(h)” (Id. at 25-1 at 9).
Thereafter, the superior court granted Petitioner leave to file a pro se PCR petition by June 28, 2024 (Doc. 25-2 at 1-2). Petitioner has expressed intentions to raise all claims under Ariz. R. Crim. P. 32 in his pro se PCR petition, including claims relating to his convictions, not just claims related to restitution (Doc. 28).
III. EXHAUSTION REQUIREMENT AND PROCEDURAL DEFAULT
A. Exhaustion
A state prisoner must properly exhaust all state court remedies before this Court may grant an application for a writ of habeas corpus. 28 U.S.C. § 2254(b)(1), (c); Duncan v. Henry, 513 U.S. 364, 365 (1995); Coleman v. Thompson, 501 U.S. 722, 731 (1991). Arizona prisoners properly exhaust state remedies by fairly presenting claims to the Arizona Court of Appeals in a procedurally appropriate manner. O'Sullivan v. Boerckel, 526 U.S. 838, 843-45 (1999); Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999). To be fairly presented, a claim must include a statement of the operative facts and the specific federal legal theory. Baldwin v. Reese, 541 U.S. 27, 32-33 (2004); Gray v. Netherland, 518 U.S. 152, 162-63 (1996); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (“The mere similarity between a claim of state and federal error is insufficient to establish exhaustion.”).
In Arizona, a petitioner must fairly present his claims to the Arizona Court of Appeals by properly pursuing them through the state's direct appeal process or through appropriate post-conviction relief. See Swoopes, 196 F.3d at 1010; Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994); Castillo v. McFadden, 399 F.3d 993, 998 & n.3 (9th Cir. 2005). Fair presentment of claims to the Arizona Court of Appeals requires a description of “both the operative facts and the federal legal theory on which [a] claim is based so that the state courts [could] have a ‘fair opportunity' to apply controlling legal principles to the facts bearing upon [the] constitutional claim.” McFadden, 399 F.3d at 999 (quoting Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003)).
It is not fair presentment, for example, that “all the facts necessary to support the federal claim were before the state courts . „ or that a somewhat similar state-law claim was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam) (internal citation omitted). It is also not enough to rely on a “general appeal to a constitutional guarantee as broad as due process to present the ‘substance' of such a claim to a state court.” Netherland, 518 U.S. at 163; see also McFadden, 399 F.3d at 1002-03 (finding habeas petitioner did not give the state appellate court a fair opportunity to rule on a federal due process claim because “[e]xhaustion demands more than drive-by citation, detached from any articulation of an underlying federal legal theory,” and the petitioner's claim in state court was a “conclusory, scattershot citation of federal constitutional provisions, divorced from any articulated federal legal theory”).
Fair presentment is not achieved by raising the claim for “the first and only time in a procedural context in which its merits will not be considered,” unless there are special circumstances. Castille v. Peoples, 489 U.S. 346, 351 (1989). As example, raising a claim for the first time in a discretionary petition for review to the Arizona Supreme Court or in a special action petition is not sufficient to achieve fair presentment. See Casey v. Moore, 386 F.3d 896, 918 (9th Cir. 2004) (“Because we conclude that Casey raised his federal constitutional claims for the first and only time to the state's highest court on discretionary review, he did not fairly present them.”) (footnote omitted).
B. Procedural Default
A corollary to the exhaustion requirement is the “procedural default doctrine.” The procedural default doctrine limits a petitioner from proceeding in federal court where his claim is procedurally barred in state court and “has its roots in the general principle that federal courts will not disturb state court judgments based on adequate and independent state law procedural grounds.” Dretke v. Haley, 541 U.S. 386, 392 (2004). If a petitioner fails to fairly present his claim to the state courts in a procedurally appropriate manner, the claim is procedurally defaulted and generally barred from federal habeas review. Ylst v. Nunnemaker, 501 U.S. 797, 802-05 (1991). There are two categories of procedural default. First, a claim may be procedurally defaulted in federal court if it was actually raised in state court but found by that court to be defaulted on state procedural grounds. Coleman, 501 U.S. at 729-30. This is called an express procedural bar. An express procedural bar exists if the state court denies or dismisses a claim based on a procedural bar “that is both ‘independent' of the merits of the federal claim and an ‘adequate' basis for the court's decision.” Harris v. Reed, 489 U.S. 255, 260 (1989); Stewart v. Smith, 536 U.S. 856, 860 (2002) (Arizona's “Rule 32.2(a)(3) determinations are independent of federal law because they do not depend upon a federal constitutional ruling on the merits”); Johnson v. Mississippi, 486 U.S. 578, 587 (1988) (“adequate” grounds exist when a state strictly or regularly follows its procedural rule).
Moreover, if a state court applies a procedural bar, but goes on to alternatively address the merits of the federal claim, the claim is still barred from federal review. See Harris, 489 U.S. at 264 n.10 (“[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law.... In this way, a state court may reach a federal question without sacrificing its interests in finality, federalism, and comity.”) (citations omitted); Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003) (“A state court's application of a procedural rule is not undermined where, as here, the state court simultaneously rejects the merits of the claim.”) (citing Harris, 489 U.S. at 264 n.10).
Second, the claim may be procedurally defaulted if the petitioner failed to present the claim in a necessary state court and “the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.” Coleman, 501 U.S. at 735 n.1; Boerckel, 526 U.S. at 848 (when time for filing state court petition has expired, petitioner's failure to timely present claims to state court results in a procedural default of those claims); Smith v. Baldwin, 510 F.3d 1127, 1138 (9th Cir. 2007) (failure to exhaust claims in state court resulted in procedural default of claims for federal habeas purposes when state's rules for filing petition for postconviction relief barred petitioner from returning to state court to exhaust his claims). This is called an implied procedural bar. Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). This type of procedural default is often referred to as “technical” exhaustion because although the claim was not actually exhausted in state court, Petitioner no longer has an available state remedy. Coleman, 501 U.S. at 732 (“A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no state remedies any longer ‘available' to him.”).
In Arizona, claims not properly presented to the state courts are generally barred from federal review because an attempt to return to state court to present them is futile unless the claims fit in a narrow category of claims for which a successive petition is permitted. See former rules Ariz. R. Crim. P. 32.2(a) (precluding claims not raised on appeal or in prior petitions for post-conviction relief), 32.4(a) (time bar), 32.1(d)-(h), 32.9(c) (petition for review must be filed within thirty days of trial court's decision); see also current rules Ariz. R. Crim. P. 32.4(b)(3) (time bar); Ariz. R. Crim. P. 32.1(b) through (h) and 32.2(b) (permitting successive PCR proceedings on certain grounds and specified circumstances); 32.16(a)(1) (petition for review must be filed within thirty days of trial court's decision).
Effective January 1, 2020, former Arizona Rules of Criminal Procedure (“Rules”) 32 and 33 were abrogated, and new Rules 32 and 33 were adopted. See Arizona Supreme Court Order No. R-19-0012. As a general matter, the substance of former Rule 32 was divided among the two new rules based on whether a defendant was convicted at trial (new Rule 32) or had pled guilty or no contest (new Rule 33). See id.; Pet. to Amend (Jan. 10, 2019), at 4-5. New Rule 32 thus encompasses the rules applicable to a defendant's right to seek post-conviction relief when the defendant is convicted by trial. New Rule 32 and new Rule 33 apply to “all actions filed on or after January 1, 2020,” and to “all other actions pending on January 1, 2020, except to the extent that the court in an affected action determines that applying the rule or amendment would be infeasible or work an injustice, in which event the former rule or procedure applies.” Arizona Supreme Court Order No. R-19-0012.
Arizona courts have consistently applied Arizona's procedural rules to bar further review of claims that were not properly raised on direct appeal or in prior Rule 32 postconviction proceedings. See, e.g., Stewart, 536 U.S. at 860 (determinations made under Arizona's procedural default rule are “independent” of federal law); Smith v. Stewart, 241 F.3d 1191, 1195 n.2 (9th Cir. 2000) (“We have held that Arizona's procedural default rule is regularly followed [or “adequate”] in several cases.”) (citations omitted), rev'd on other grounds, Stewart, 536 U.S. 856; State v. Mata, 185 Ariz. 319, 334-36, 916 P.2d 1035, 1050-52 (Ariz. 1996) (waiver and preclusion rules strictly applied in post-conviction proceedings). A petitioner who fails to follow a state's procedural requirements for presenting a valid claim deprives the state court of an opportunity to address the claim in much the same manner as a petitioner who completely fails to attempt to exhaust his state remedies. In Arizona, “ineffective assistance of counsel claims should be raised in postconviction relief proceedings pursuant to rule 32, Arizona Rules of Criminal Procedure.” Lambright v. Stewart, 241 F.3d 1201, 1203 (9th Cir. 2001) (quoting State v. Atwood, 171 Ariz. 576 (1992)) (finding that failure to raise ineffective assistance of counsel claims on direct appeal did not bar federal habeas review).
Ariz. R. Crim. P. 32.2 regards preclusion of PCR remedy for persons like Petitioner, who were convicted at trial; Ariz. R. Crim. P. 32.2 states:
(a) Preclusion. A defendant is precluded from relief under Rule 32.1(a) based on any ground:
(1) still raiseable on direct appeal under Rule 31 or in a post-trial motion under Rule 24;
(2) finally adjudicated on the merits in an appeal or in any previous post-conviction proceeding; or
(3) waived at trial or on appeal, or in any previous postconviction proceeding, except when the claim raises a violation of a constitutional right that can only be waived knowingly, voluntarily, and personally by the defendant.
(b) Claims Not Precluded. Claims for relief based on Rule 32.1(b) through (h) are not subject to preclusion under Rule 32.2(a)(3), but they are subject to preclusion under Rule 32.2(a)(2). However, when a defendant raises a claim that falls under Rule 32.l(b) through (h) in a successive or untimely post-conviction notice, the defendant must explain the reasons for not raising the claim in a previous notice or petition, or for not raising the claim in a timely manner. If the notice does not provide sufficient reasons why the defendant did not raise the claim in a previous notice or petition, or in a timely manner, the court may summarily dismiss the notice. At any time, a court may determine by a preponderance of the evidence that an issue is precluded, even if the State does not raise preclusion.
C. Excuse for Procedural Default
The Court may review a procedurally defaulted claim if the petitioner can demonstrate either: (1) cause for the default and actual prejudice to excuse the default, or (2) a miscarriage of justice/actual innocence. 28 U.S.C. § 2254(c)(2)(B); Schlup v. Delo, 513 U.S. 298, 321 (1995); Coleman, 501 U.S. at 750; Murray v. Carrier, 477 U.S. 478, 495-96 (1986). “Cause” is something that “cannot be fairly attributable” to a petitioner, and a petitioner must show that this “objective factor external to the defense impeded [his] efforts to comply with the State's procedural rule.” Coleman, 501 U.S. at 753 (citation and internal quotation marks omitted). To establish prejudice a “habeas petitioner must show ‘not merely that the errors at ... trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'” Murray, 477 U.S. at 494 (quoting United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original)). “Such a showing of pervasive actual prejudice can hardly be thought to constitute anything other than a showing that the prisoner was denied ‘fundamental fairness' at trial.” Id.
The miscarriage of justice exception to procedural default “is limited to those extraordinary cases where the petitioner asserts his [actual] innocence and establishes that the court cannot have confidence in the contrary finding of guilt.” Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir. 2008) (emphasis in original). To pass through the actual innocence/Schlup gateway, a petitioner must establish his or her factual innocence of the crime and not mere legal insufficiency. See Bousley v. United States, 523 U.S. 614, 623 (1998); Jaramillo, 340 F.3d at 882-83. Significantly, “[t]o be credible, [a claim of actual innocence] requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence.” Schlup, 513 U.S. at 324. See also Lee v. Lampert, 653 F.3d 929, 945 (9th Cir. 2011); McQuiggin v. Perkins, 569 U.S. 383, 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, 569 U.S. at 399 (quoting Schlup, 513 U.S. at 327)). Because of “the rarity of such evidence, in virtually every case, the allegation of actual innocence has been summarily rejected.” Shumway v. Payne, 223 F.3d 982, 990 (9th Cir. 2000) (citing Calderon v. Thompson, 523 U.S. 538, 559 (1998)).
IV. DISCUSSION
As an initial matter, to the extent Petitioner attempts to raise an actual innocence claim, Petitioner's filings do not meet the threshold for such even if an actual innocence claim is cognizable (see Doc. 21); nor on this record does Petitioner meet the requirements for actual innocence to excuse any procedural default of any unexhausted claim. Also, as the Court previously stated regarding Petitioner's attempts in his filings in this matter to raise an ineffective assistance of counsel claim regarding PCR counsel:
Petitioner begins his Ground One habeas claim in his Petition with a reference to having a claim for actual innocence (Doc. 1 at 6), and Petitioner argues actual innocence in his reply (Docs. 22, 23).
Actual innocence was discussed in denying Petitioner's motion for disclosure.
Alleged ineffective assistance of counsel in Petitioner's ongoing state superior court third PCR proceedings is outside of the scope of the habeas claims, defense, and other pertinent issues in these habeas proceedings. Further, a prisoner does not have a federal constitutional right to counsel in state PCR proceedings, ineffective assistance of PCR counsel does not constitute cause to excuse a procedural default regarding previous appellate or PCR counsel, and ineffective assistance of PCR counsel does not constitute basis for a habeas claim. See Davila v. Davis, 582 U.S. 521, 524 (2017); Coleman v. Thompson, 501 U.S. 722, 752 (1991).(Doc. 30 at 1). While Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569 U.S. 413 (2013), treat ineffective assistance by state PCR counsel as cause to overcome the default of ineffective assistance of trial counsel where the state effectively requires a defendant to bring that claim in state postconviction proceedings rather than on direct appeal, a federal habeas court is not allowed to hear even a substantial procedurally defaulted claim of ineffective assistance of appellate counsel based on the fact that a prisoner's state postconviction counsel has provided ineffective assistance by failing to raise that claim. Davila, 582 U.S. at 524-525.
In Respondents' Limited Answer, Respondents assert and argue that the Petition's claims are untimely under the one-year statute of limitations of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and are unexhausted as well as procedurally defaulted without excuse, warranting dismissal of the Petition with prejudice (Doc. 20 at 1, 10-18). Review of the record and applicable law reveals that Petitioner did not or has not yet properly exhausted his habeas claims in the Arizona Court of Appeals in a procedurally appropriate manner as required, either in his direct appeal or in petitioning for review of denial/dismissal of PCR proceedings.
Despite arguing that Petition was untimely filed and that the claims therein are procedurally defaulted without excuse (Doc. 20 at 1, 10-18), Respondents' Limited Answer is ambivalent as to whether or not it is legally proper for the Petition to be dismissed with prejudice under applicable law given the pending PCR proceedings in state court (Id. at 1, 18-20). Respondents' Limited Answer begins with such ambivalence:
Respondents respectfully request that this Court deny the petition with prejudice, because all of [Petitioner's pending habeas claims are both untimely and procedurally defaulted without excuse. Alternatively, because [Petitioner] currently has pending successive post-conviction proceedings in state court, the Court could dismiss his petition without prejudice, or stay his petition until the conclusion of his state proceedings.(Doc. 20 at 1). Respondents' Limited Answer approaches its conclusion with the same ambivalence:
Thus, notwithstanding that [Petitioner's current habeas claims are all untimely and procedurally defauted [sic], this Court could alternatively either dismiss [Petitioner's habeas proceedings without prejudice, or stay his petition, until his state PCR proceedings have concluded. See Evans v. Ryan, No. CV-16-08-67- PCT-DLR (BSB), 2016 WL 4394184, at *2 (D. Ariz. June 14, 2016) (recommending dismissal of habeas corpus petition as premature when Rule 32 of-right petition pending in state court), adopted, 2016 WL 4271863 (D. Ariz. Aug. 15, 2016).(Doc. 20 at 20).
In their Limited Answer, Respondents recognize that “[b]ecause no petition has yet been filed [in Petitioner's pending PCR proceedings], it is impossible to know whether the grounds presented in the instant habeas Petition will be presented to the Superior Court or, potentially, to the Arizona Court of Appeals” (Id. at 19). Respondents further acknowledge that Petitioner's forthcoming PCR petition could raise a “claim that ‘may result in the reversal of [his] conviction[s]” on a ground that moots any federal question raised in these proceedings (Id. at 19-20).
Nevertheless, neither in their Limited Answer (Doc. 20) and in their clarification (Doc. 25), do Respondents sufficiently cite or discuss pertinent law regarding when a stay or dismissal without prejudice may be appropriate rather than dismissal with prejudice, particularly in these atypical circumstances. See Rhines v. Weber, 544 U.S. 269 (2005) (stays of “mixed” petitions); Mena v. Long, 813 F.3d 907 (9th Cir. 2016) (Rhines applies to stays of fully unexhausted petitions). This matter has an unusual PCR procedural history and posture. Petitioner's first PCR proceedings were timely filed, but his appointed counsel misunderstood the procedural posture or applicable law and moved for dismissal without prejudice of the PCR proceedings pending Petitioner's restitution appeal after his direct appeal was completed. Based on such, the superior court dismissed the PCR proceedings without prejudice with leave to refile within thirty days after the conclusion of the pending appeal. Petitioner then refiled within thirty days after the conclusion of the pending appeal, but his then still-appointed PCR counsel did not act. Two different judges of the superior court issued separate and different rulings based on Petitioner's post-appeal filings, one dismissing the PCR proceedings, and the other appointing different counsel and setting a PCR proceedings briefing schedule. The latter PCR proceedings are still pending and the scope of such are unclear.
The United States Supreme Court has repeatedly held “federal district courts may not adjudicate mixed petitions for habeas corpus, that is, petitions containing both exhausted and unexhausted claims.” Rhines, 544 U.S. at 273. Further, the Ninth Circuit recently stated in an unpublished memorandum decision:
The dissent applies general principles of procedural default to conclude that [the petitioner's section 2254] claim is procedurally barred under state law. But there is no authority for extending general principles of procedural default to a case where a post-conviction petition is pending in state court. In fact, doing so would violate the principles of comity that our exhaustion doctrine is designed to promote. See Rose v. Lundy, 455 U.S. 509, 515-16 (1982) (“[C]omity was the basis for the exhaustion doctrine: ‘it is a principle controlling all habeas corpus petitions to the federal courts, that those courts will interfere with the administration of justice in the state courts only in rare cases where exceptional circumstances of peculiar urgency are shown to exist.' ” (quoting Ex parte Hawk, 321 U.S. 114, 117 (1944))). In any event, the government concedes that a remand for dismissal without prejudice is appropriate given the parties' disagreement about the status of the postconviction petition.
Mr. Murphy-Richardson is not entitled to a Rhines stay because he has not established good cause for his failure to exhaust. See Wooten v. Kirkland, 540 F.3d 1019, 1023 (9th Cir. 2008) (“[S]tay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court.” (quoting Rhines v. Weber, 544 U.S. 269, 277 (2005))). The government agrees, however, that if Mr. Murphy-Richardson's February 2021 post-conviction petition was not a successive petition, the statute of limitations for his habeas petition will toll while he exhausts his claim in state court.Murphy-Richardson v. Att'y Gen., No. 22-15001, 2024 WL 359371, at *1 (9th Cir. Jan. 31, 2024). Here, like the Ninth Circuit found regarding Mr. Murphy-Richardson, Petitioner is not entitled to a Rhines stay because Petitioner has not established good cause for his failure to exhaust. See Wooten, 540 F.3d at 1023 (quoting Rhines, 544 U.S. at 277). Petitioner has not provided sufficient reason to excuse not raising some of the Petition claims in his direct appeal and has not provided a reason for not petitioning for review to the Arizona Court of Appeals regarding the February 6, 2023, dismissal of the PCR proceedings.
Following the logic of Murphy-Richardson, dismissal without prejudice is appropriate because the scope of the pending PCR proceedings is unclear. In addition, given Respondents' arguments regarding statute of limitations, dismissal of these proceedings without prejudice will not impact Petitioner negatively regarding future statute of limitations evaluation by this Court should Petitioner later refile a habeas petition promptly upon the conclusion of his state court PCR proceedings.
V. CONCLUSION
Petitioner has ongoing PCR proceedings in which it is unclear what claims the state court will allow Petitioner to raise. Respondents' suggestion in their Limited Answer that the Petition be dismissed without prejudice given Petitioner's ongoing PCR proceedings is appropriate in light of the atypical procedural history of Petitioner's PCR proceedings. Reasonable jurists may find it debatable as to whether the matter should be dismissed, particularly without prejudice and rather than stayed, and therefore a certificate of appealability is recommended. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Accordingly,
IT IS HEREBY RECOMMENDED that the Petition be dismissed without prejudice.
IT IS FURTHER RECOMMENDED that a certificate of appealability be granted. 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.