Opinion
CV 20-01472 PHX GMS (CDB)
08-19-2021
Eric Kyle Bradley, Petitioner, v. David Shinn, Attorney General of the State of Arizona, Respondents.
REPORT AND RECOMMENDATION
TO THE HONORABLE G. MURRAY SNOW:
Petitioner Eric Bradley, who is represented by counsel in this matter, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Bradley challenges his conviction on one count of transferring a dangerous drug, i.e., methamphetamine. Respondents answered the petition (ECF No. 22), and Bradley has filed a reply (ECF No. 29).
I. Background
Bradley was charged by indictment with committing the following crimes on March 12, 2013: conspiracy to commit the smuggling of human beings for profit (Count 1); participating in a human smuggling organization by organizing, managing, directing, supervising, or financing the organization (Count 2); and smuggling of human beings for profit (Count 3). (ECF No. 13-1 at 2). The indictment further charged that on March 13, 2013, Bradley committed the crimes of conspiracy to commit human smuggling (Count 4) and attempted human smuggling (Count 5). (ECF No. 13-1 at 2-3). The indictment also alleged that on March 19, 2013, Bradley engaged in a conspiracy to commit human smuggling (Count 6); committed the crime of smuggling of human beings (Count 7); and committed the crime of transfer of dangerous drugs by knowingly transferring or offering to sell or transfer methamphetamine (Count 8). (ECF No. 13-1 at 3).
On October 30, 2014, Bradley agreed to plead guilty to one count of conspiracy to commit human smuggling in exchange for a sentence of six years' imprisonment, contingent on a plea to one count of forgery in a simultaneously pending case. (ECF No. 13-38 at 4-5). Bradley withdrew from the plea agreement when the District of Arizona concluded, on November 7, 2014, in United States v. State of Arizona, 119 F.Supp.3d 955, 960 (D. Ariz. 2014), that the state statute criminalizing human smuggling was preempted by federal law. (Id.). The State of Arizona appealed that decision, and the Ninth Circuit Court of Appeals granted the State's motion to dismiss the appeal on April 8, 2015. See United States v. State of Arizona, 2:10 cr 1413 SRB (D. Ariz.), at ECF No. 224.
On the first day of Bradley's trial the court granted the State's request for dismissal of the first seven counts of the indictment without prejudice. (ECF No. 13-3 at 2-3). The court also ordered that if Bradley chose to testify the State could impeach him with his prior felony convictions. (ECF No. 13-3 at 3). Additionally, after hearing argument the court found:
Counts 1 through 7 were dismissed pursuant to the holding in United States v. State of Arizona, cited swpra at note 1. (ECF No. 13-11 at 5-7).
.. evidence of human smuggling is inextricably intertwined with the facts that give rise to the State's allegation that the Defendant transferred an illegal drug in exchange for something of value.
FURTHER ORDERED the evidence of human smuggling activity shall be admissible to explain the context and circumstance giving rise to the State'sallegation reflected in the sole remaining Count of the Indictment.(ECF No. 13-3 at 3; ECF No. 13-11 at 9-15, 19-22).
The Arizona Court of Appeals summarized the evidence presented at trial as follows:
... In March 2013, a federal undercover agent was working with Bradley and Bradley's partner, [] Douglas, to transport undocumented aliens past border patrol checkpoints. After transporting the first group of entrants, Bradley asked the agent whether he wanted some methamphetamine. Bradley explained that he could take the agent to Douglas's house to get the drug. The agent declined the offer.
Several days later, when the agent insisted on being paid for his smuggling activities, Bradley agreed that “they could pay [the agent] with some of the methamphetamine that they spoke about ... previously].” The
agent met Bradley and Douglas outside Douglas's house in the Eloy area. Bradley went inside and placed the methamphetamine into a plastic bag held by Douglas, who then closed and delivered it to the waiting agent. Douglas told the agent the methamphetamine was pure, so he “would ... be able to make about $80 off of it.” Federal agents then turned the drug over to local officials.
When the federal agents interviewed Bradley after his arrest, he initially denied being involved in human smuggling. After they revealed to Bradley that he had been working with an undercover agent, he claimed that “everything was ... Douglas's idea and that [Douglas] was in charge” of the operation. Bradley also offered to provide information concerning the methamphetamine trade in and around the city of Eloy. Douglas, in contrast, stated that Bradley was “the boss” of the human-smuggling operation.
At trial, Bradley challenged the agent's credibility about the methamphetamine transaction at the residence. Bradley also argued that he had been merely present at the house and that Douglas had been the boss of the operation, making him solely responsible for the transfer of the drug.State v. Bradley, 2016 WL 4547161, at *1 (Ariz.Ct.App. Aug. 31, 2016). Bradley did not testify at trial. (ECF No. 13-5 at 3-4). The jury deliberated for approximately an hour and found Bradley guilty as charged. (ECF No. 13-5 at 4). After the presentation of evidence, the jury found the facts of a prior felony conviction, the presence of an accomplice, and that Bradley was on probation when the offense of conviction was committed. (ECF No. 13-5 at 6). Bradley was sentenced to a partially aggravated term of sixteen years' “flat time” imprisonment. (ECF No. 13-6 at 2-6).
Bradley timely appealed, asserting “the trial court committed reversible error by admitting under Rule 404(b), Ariz. R. Evid., ‘detailed evidence' of his involvement in the human-smuggling operation.” Id. Although he “acknowledge[d] that the undercover agent's participation in the human-smuggling operation and payment with methamphetamine constitutes ‘evidence regarding the crime for which [Bradley] was actually [tried], '” he maintained “that the testimony of two additional federal agents was both irrelevant to this charge and unduly prejudicial.” Id. In denying relief the state appellate court found and concluded:
Given that the central dispute in this case concerned Bradley's role in the smuggling organization and the related transfer of methamphetamine, the challenged evidence was relevant and highly probative. Moreover, the record reflects that the trial court considered and attempted to reduce the risk of unfair prejudice this evidence posed. ... On this record, we cannot say the trial court abused its broad discretion in implicitly concluding the probative value of the challenged evidence compared to the risk of unfair prejudice warranted admission of the other acts. ...Id., 2016 WL 4547161, at *2.
On appeal Bradley also argued that the trial court erred by rejecting his proposed jury instruction on a lesser-included offense, i.e., possession of a dangerous drug. Id., 2016 WL 4547161, at *3. The trial court had refused the instruction, concluding that possession of a dangerous drug under Arizona Revised Statutes § 13-3407(A)(1) was not a lesser included offense of transferring a dangerous drug under § 13-3407(A)(7). Id. The appellate court found and concluded:
Upon a proper request, Rule 23.3, Ariz. R. Crim. P., requires a trial court to submit to the jury all offenses “necessarily included” in the crime charged. An offense is necessarily included if (1) it is a lesser included offense of the crime charged and (2) the evidence supports an instruction on the lesser offense. []. “The test for whether an offense is ‘lesser-included' is whether it is, by its very nature, always a constituent part of the greater offense, or whether the charging document describes the lesser offense even though it does not always make up a constituent part of the greater offense.” State v. Robles, 213 Ariz. 268 [] (App. 2006), quoting State v. Chabolla-Hinojosa, 192 Ariz. 360 [] (App. 1998) []. ...
Under the elements test, an offense is lesser included only if it is “composed solely of some but not all of the elements of the greater crime so that it is impossible to have committed the crime charged without having committed the lesser one.” State v. Celaya, 135 Ariz. 248, 251 [] (1983). The analysis focuses exclusively on the statutory elements of the crimes. State v. Laffoon, 125 Ariz. 484, 487 [] (1980). Section 13-3407(A)(7) makes it a crime to knowingly “[t]ransport for sale, import into this state or offer to transport for sale or import into this state, sell, transfer or offer to sell or transfer a dangerous drug.” The subsection can be violated, in other words, by a certain type of “offer” regarding a dangerous drug. Id. As the state correctly points out, a person can offer to sell or transfer a dangerous drug without also possessing that drug. By contrast, possession is an essential element of the offense set forth in § 13-3407(A)(1). State v. Cheramie, 218
Ariz. 447 [] (2008). Hence, according to the elements test, possessing a dangerous drug under subsection (A)(1) is not a lesser included offense of the crime set forth in § 13-3407(A)(7).
The charging document test likewise did not support the proffered instruction here. Bradley's indictment alleged he had violated § 13-3407(A)(7) by “transferring . . . or offering to sell or transfer a dangerous drug.” Under this description of the offense, which included “offering” to transfer the drug, the crime could be committed without necessarily possessing methamphetamine. See Gooch, 139 Ariz. at 366-67 []. Thus, possession was not a lesser included offense of the transferring charge, and the trial court properly denied Bradley's requested instruction.Id., 2016 WL 4547161, at *3-4 (some internal citations omitted). Bradley did not seek review in the Arizona Supreme Court.
Bradley initiated a timely state action for post-conviction relief pursuant to Rule 32 of the Arizona Rules of Criminal Procedure on September 26, 2016, and was appointed post-conviction counsel. (ECF No. 22-1 at 37-39, 41). Bradley's appointed post-conviction counsel informed the court that they could find no meritorious claims to raise on Bradley's behalf. (ECF No. 22-1 at 44-52). Counsel reported that Bradley “believes that he was denied effective assistance of counsel and that he is actually innocent of transferring methamphetamine.” (ECF No. 22-1 at 48). However, after evaluating the substance of those claims counsel opined the claims were not meritorious. (ECF No. 22-1 at 49-51).
Bradley filed a pro se petition on July 11, 2017, asserting he was denied the effective assistance of trial and appellate counsel, and claiming his actual innocence. (ECF No. 221 at 55-75). Bradley argued his trial counsel failed to perform any meaningful pretrial investigation; failed to interview either the State's witnesses or potential defense witnesses; failed to depose the State's witnesses; failed to file a motion to suppress; and failed to pursue a meaningful defense. (ECF No. 22-1 at 62-72). Bradley further alleged his appellate counsel was ineffective for failing argue that Bradley had never possessed drugs and, therefore, could not have transferred drugs. (ECF No. 22-1 at 68). Bradley also asserted he was actually innocent because the undercover officer could not say with absolute certainty that the item Bradley handled was drugs. (ECF No. 22-1 at 72-73).
The state habeas trial court denied Bradley's petition for relief on December 8, 2017, concluding he “failed to state a colorable claim for relief.” (ECF No. 22-1 at 139-42). The court found and concluded:
1. Trial counsel failed to interview or call as a witness the codefendant [] Douglas.
[Bradley] asserts that trial counsel failed to call co-defendant [] Douglas as a witness and that such testimony “would have undermined the prosecution's argument.” (Reply, page 3). Nowhere does [Bradley] articulate how, exactly, Douglas would have undermined the state's case. [Bradley] assures that “[he] is currently in the process of obtaining an affidavit from Douglas and will send it to the courts as amended as soon as [he] gets it.” (Petition, page 5). No such affidavit was filed. The Court finds nothing in the record before it to conclude that the testimony of Douglas would have in any way exonerated [Bradley].
2. Trial counsel failed to interview witnesses.
[Bradley] alleges trial counsel failed to interview any witnesses. The State counters that the trial record reveals that witness Loose was interviewed by defense counsel and that witness Hall was likely interviewed. (Response, page 10). [Bradley] disputes that Hall was interviewed. Assuming arguendo that only witness Loose was interviewed by trial counsel, [Bradley] does not state specifically how the failure to interview the other witnesses has prejudiced his case or how it would have changed the outcome. The Court further finds [Bradley] has failed to prove that trial counsel was not sufficiently prepared for trial.
3. Trial counsel failed to present a defense that [Bradley] could not have possessed the drugs.
[Bradley] alleges that trial counsel was ineffective for failing to present a defense that [Bradley] could not have possessed the drugs. In its response (page 14), the State cites in the trial record instances where trial counsel argued that [Bradley] could not have committed the crime. Neither [Bradley's] petition nor reply cites to any contradictory evidence. Accordingly, the Court finds that trial counsel did present a defense that [Bradley] could not have possessed the drugs.
4. Trial counsel failed to raise a defense that [Bradley's] name was not listed on documents pertaining to scientific analysis or chain of custody.
[Bradley] alleges that trial counsel was ineffective for failing to raise a defense that [Bradley's] name was not listed on documents pertaining to scientific analysis or chain of custody. Even if this was true, the Court fails to see how such an oversight would demonstrate a reasonable probability that the result of the proceeding would have been different but for the alleged deficiencies, as required by Strickland.
5. Trial counsel failed to file a motion to suppress.
[Bradley] asserts that trial counsel was ineffective for failing to file a motion to suppress. Nowhere in his petition does [Bradley] specify what motion should have been filed or what evidence should have been suppressed. [Bradley] makes no claim of a constitutional violation justifying a suppression hearing. [Bradley] merely states that the evidence of guilt was insufficient. Such is not a basis for a motion to suppress.
Throughout his pleadings, [Bradley] alleges that trial counsel's performance was deficient yet offers nothing to support that such allegations, if true, would have reasonably altered the outcome of the trial. ... Considering the totality of the circumstances under Stricklandv. Washington, supra, the Court cannot find that trial counsel's alleged errors demonstrate a reasonable probability that the result of the proceedings would have been different but for the alleged deficiencies. .
INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
In his petition, [Bradley] alleges appellate counsel was ineffective. [Bradley] claims appellate counsel was ineffective for not challenging the effectiveness of trial counsel. The Court has found, above, that trial counsel was not ineffective. Moreover, such a claim cannot be raised on appeal. State v. Spreitz, 202 Ariz. 1, 3 [] (2002). Accordingly, the Court cannot find that appellate counsel was ineffective.
ACTUAL INNOCENCE
[Bradley] maintains his innocence. [Bradley] alleges that, at trial, there was no physical evidence that he committed the crime and that no witness testified with 100% certainty that [Bradley] possessed an illegal drug. However, the State is not required to produce physical evidence or present witnesses who are 100% certain. The State is merely required to prove its case beyond a reasonable doubt. Evidence may be direct or circumstantial.
For the Court to make a finding of actual innocence, [Bradley] must prove by clear and convincing evidence that facts underlying his claim would be sufficient to establish that no reasonable juror would have found him guilty beyond a reasonable doubt. []
[Bradley] alleges no additional material facts other than those presented at trial. [Bradley] merely contends that the trial evidence proves his innocence. The jury had an opportunity to hear and evaluate the State's witnesses and, apparently, found them to be credible. The Court has reviewed the “statement of facts” as forth [in Bradley's] petition. If believed, those facts constitute sufficient evidence for a reasonable juror to find guilt beyond a reasonable doubt.
[Bradley] has not proven by clear and convincing evidence that facts underlying his claim would be sufficient to establish that no reasonable juror would have found him guilty beyond a reasonable doubt.(ECF No. 22-1 at 139-42). Bradley did not timely seek review in the Arizona Court of Appeals by filing a petition for review by January 8, 2018.
Nine months later, on September 19, 2018, Bradley filed a “Motion for Delayed Review” in the state trial court. (ECF No. 22-1 at 144-46). Bradley asserted he was “unaware of the deadlines to file a review or reconsideration motion with this court and on top of that defendant was unable to gain access to legal books or law library, ” and he sought leave to file “a motion for reconsideration.” (ECF No. 22-1 at 145). The motion was summarily denied on September 25, 2018. (ECF No. 22-1 at 148).
On October 25, 2018, Bradley filed a “Motion to file for Delayed time for Review” that was stamped as filed in the trial court, although the motion was directed to the Arizona Court of Appeals. (ECF No. 22-1 at 150). Bradley stated:
Defendant comes now, before this court and would like this court to grant [D]efendant[']s motion to file a delayed time for review based on the following. Defendant was sentence[d] ¶ 16 flat years to the Arizona Department of Corrections by the Pinal County Superior Courts. [D]efendant filed his Rule 32, with the courts which was later denied by the courts[.] [S]ince [D]efendant filed his [R]ule 32 in pro per [D]efendant was unaware of any timeframes or deadlines to file for review.
Defendant has very little legal knowledge and has since been transferred to another prison complex and the inmate that assisted him in his legal work is no longer with him who would have made it aware to him of any deadlines/timeframes to file a review[.] [D]efendant has since tried to file this motion with the lower courts [and] is now asking for the higher courts to grant this motion and allow defendant to file his motion for review.(ECF No. 22-1 at 151). The record in this matter does not reveal a ruling on this motion. (ECF No. 22-1 at 154).
On April 5, 2019, one year and six months after the state trial court denied Bradley's first motion for “delayed” review, Bradley filed a second notice seeking state postconviction relief. (ECF No. 22-2 at 3-5). Bradley asserted “[n]ewly discovered material facts exist which probably would have changed the verdict or sentence.” (ECF No. 22-2 at 4). In his petition Bradley repeated his claim that his trial counsel was ineffective for failing to present a defense and for lack of preparation. (ECF No. 22-2 at 10-13). Bradley also alleged he was improperly sentenced because he was sentenced as a repeat offender rather than under “the methamphetamine statute range, ” and because he received a flattime sentence although his offense was not a “dangerous offense.” (ECF No. 22-2 at 14).
The state habeas trial court summarily denied relief in Bradley's second postconviction action on June 7, 2019. (ECF No. 22-2 at 37). The court found and concluded “that all matters contained in the Petition for Post-Conviction Relief are precluded as having been previously ruled upon or the Petition lacks sufficient basis in law and fact to warrant further proceedings herein and no useful purpose would be served by further proceedings.” (Id.).
Bradley filed a motion for reconsideration, arguing the state trial court ruled prematurely on his petition without considering his reply. (ECF No. 22-2 at 40-43). The state trial court granted the motion for reconsideration on July 15, 2019, but determined upon subsequent review that “nothing presented in [Bradley's] reply changes the Court's ruling of June 7, 2019.” (ECF No. 22-2 at 45). Bradley did not petition the state appellate court for review.
II. Claims for Relief
In his pro se federal habeas petition Bradley asserts:
1. The trial court violated his rights to due process and a fair trial, and to the “presumption of innocence, ” “by allowing unproven other bad act evidence of human smuggling” to be admitted at trial. (ECF No. 1 at 6).
2. He was denied his rights to due process and a fair trial because the trial court refused to give a requested jury instruction on a lesser-included offense. (ECF No. 1 at 7).
3. He was denied the effective assistance of trial counsel. (ECF No. 1 at 8).
4. He was denied the effective assistance of appellate counsel. (ECF No. 1 at 9).
5. He is “actually innocent.” (ECF No. 1 at 10).
6. His sentence is illegal and unconstitutional. (ECF No. 1 at 11).
Bradley, proceeding through counsel, filed a supplemental memorandum asserting a seventh claim for § 2254 relief, i.e., that the trial court and prosecutor violated Bradley's right to due process and fundamental fairness, and his right to present a defense, “by precluding [him] from continuing the trial to allow time for him to get his witness [Douglas] to court.” (ECF No. 12 at 5, 8, 16).
In proffering this claim Bradley references the exhibit at ECF No. 13-2, which is Exhibit B to the pleading at ECF No. 12. Exhibit B is a minute entry dated May 18, 2015, the day before the trial began, regarding a hearing on an ultimately-denied motion to continue. There is no copy of the actual motion to continue or transcript of the hearing on the motion to continue in the record before the Court. The public docket in Bradley's criminal case indicates the motion to continue was filed May 15, 2015, four days prior to trial. (ECF No. 22-1 at 157).In his state habeas action Bradley's post-conviction counsel's pleading (averring they could find no meritorious claims to raise on Bradley's behalf), states:
Petitioner complains that the court violated his Due Process right to a fair trial when it denied his request for a continuance of the trial so he could have his co-defendant Douglas testify on his behalf. This is an issue that could have been raised on direct appeal and therefore is waived under Rule 32.2(a)(1). The only avenue for relief would be a claim of ineffective assistance of appellate counsel. A review of the record does not support such a claim. [] Given the timing of the request, the difficulties of obtaining co-defendant testimony since he has Fifth Amendment rights, and that it likely would not have made any difference to the outcome of the trial, it was not a viable appellate issue.(ECF No. 13-33 at 7). Bradley asserted in his pro per pleading that he could produce an affidavit from Douglas that would have undermined the State's case, but he failed to do so.
Respondents contend the § 2254 petition was not filed within the applicable statute of limitations. (ECF No. 22 at 11). Respondents further contend that Bradley's “freestanding” actual innocence claim is without merit. (ECF No. 22 at 14-15). Additionally, Respondents assert Bradley failed to properly exhaust his first, second, third, fourth, sixth, and seventh federal habeas claims in the state courts and, therefore, the claims are procedurally defaulted. (ECF No. 22 at 15-25).
III. Analysis
A petitioner bears the burden of demonstrating their entitlement to a writ of habeas corpus pursuant to § 2254. E.g., Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004).
A. Statute of limitations
Bradley's petition for a federal writ of habeas corpus 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 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 Bradley's conviction 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). The Arizona Court of Appeals denied Bradley's appeal on August 31, 2016, and he did not seek review in the Arizona Supreme Court. Accordingly, Bradley's conviction became final on September 30, 2016, when the time expired for Bradley to seek review in the Arizona Supreme Court.
In the interim, however, Bradley initiated a state action for post-conviction relief on September 26, 2016, which tolled the running of the statute of limitations. Bradley's action for post-conviction relief remained pending until January 8, 2018, when the time expired for Bradley to seek review in the Arizona Court of Appeals from the state habeas trial court's denial of relief on December 8, 2017. See Ariz. R. Crim. P. 32.16(a)(1) (formerly Rule 32.9(c)(1)). Accordingly, the statute of limitations began running on January 9, 2018 and expired January 9, 2019. Therefore, the federal habeas petition placed in the prison mailing system on July 21, 2020, was not filed within the applicable statute of limitations, being filed one year, six months, and 12 days after the statute of limitations expired.
Bradley's second state action for post-conviction relief, filed April 5, 2019 (not quite three months after the AEDPA statute of limitations expired), could not and did not restart the already-expired statute of limitations regarding Bradley's § 2254 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).
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). Thus, 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).
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 Bradley 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 reply to the assertion that his federal habeas petition is not timely, Bradley asserts:
.. Mr. Bradley was denied his ability to file a Petition for Review to the Arizona Court of Appeals in his first PCR for unknown reasons. (Doc. 12, Exhibit HH, pages 550-551.) Mr. Bradley believes his statute of
limitations did not run as he returned to State court for successive PCR proceedings following denial of the first proceeding, as he was properly challenging the effectiveness of his prior representation in his successive PCR. Thus, he disagrees with the State's computation and asserts that his case was not final in State court until the decision issued following reconsideration in July of 2020.
Mr. Bradley further continues to assert actual innocence as a defense to any allegation of the statute of limitations defense, and believes that such assertion provides a gateway for consideration of claims despite any State assertion regarding the statutory time limits, and that this doctrine further provides for review of the merits of all claims including the actual innocence claim without a showing of “equitable tolling” as well, as this is a freestanding actual innocence claim that must be reviewed in the context of all the errors alleged to determine if one who is innocent has been convicted and imprisoned by the State of Arizona unconstitutionally. See Schlup v. Delo, 513 U.S. 298, 326-27 [] (1995).(ECF No. 29 at 3).
The pleading at ECF No. 12 in the CM/ECF docket in this matter is Bradley's counseled “Supplemental Memorandum in Support of Petition for Writ of Habeas Corpus (28 U.S.C. § 2254).” At ECF No. 13 are the exhibits to ECF No. 12, i.e., reproductions of trial transcripts and various pleadings and orders in Bradley's state criminal proceedings. “Exhibit HH” appears at ECF No. 13-35, and is a “notice” issued by the state trial court on September 25, 2018, denying Bradley's “Motion for Delayed Review, ” filed September 19, 2018. Although the “notice” is unexplained, a state habeas petitioner does not have a right to file an untimely petition for review. Additionally, in his second Rule 32 petition, filed after the AEDPA statute of limitations expired, Bradley does not assert appointed counsel in his first Rule 32 action was ineffective, but instead asserts claims of ineffective assistance of trial counsel and the imposition of an improper sentence. (ECF No. 22-2 at 8-18).
A federal habeas petitioner bears the burden of establishing his entitlement to equitable tolling. See, e.g., Waldron-Ramsey, 556 F.3d at 1011. “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.” Id. (internal citations and quotations omitted). Bradley fails to establish that he was diligently pursuing his rights, as he allowed nine months to pass prior to seeking appellate review of the denial of relief in his first Rule 32 action, and he allowed six months to pass after his motion seeking leave to file an untimely petition for review was denied and the filing of his second Rule 32 action. Additionally, relief was denied in Bradley's second Rule 32 action on July 15, 2019, and he did not file his federal habeas petition until a year later, on July 23, 2020. Bradley fails to demonstrate due diligence, and Bradley does not assert any “extraordinary circumstance” that prevented his timely filing of his federal habeas petition.
When an otherwise time-barred habeas petition “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. See Stewart v. Cate, 757 F.3d 929, 937-38 (9th Cir. 2014), citingSchlup 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. Bradley does not present “new evidence” establishing his purported “innocence, ” but instead asserts that there was insufficient evidence from which the jury could find him guilty. Bradley presents a claim of legal, rather than factual, guilt.
Bradley is not entitled to equitable tolling of the AEDPA's statute of limitations and he is not entitled to proceed through the “actual-innocence gateway” to a hearing on the merits of his claims for relief.
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 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 the petitioner must present to the state courts the “substantial equivalent” of the claim presented in federal court. Picardv. 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 of the 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). In noncapital cases arising in Arizona, the “highest court” test is satisfied if the habeas petitioner presented his claim to the Arizona Court of Appeals in his direct appeal or a properly-filed state action for post-conviction relief. 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).
[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). An implied procedural bar may be applied to unexhausted claims where state procedural rules make a return to state court futile. Coleman, 501 U.S. at 735 n.1; Franklin v. Johnson, 290 F.3d 1223, 1230-31 (9th Cir. 2002).
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. See Correll v. Stewart, 137 F.3d 1404, 1415 (9th Cir. 1998); Date, 619 F.Supp.2d at 766.
A petitioner meets the “fundamental miscarriage of justice” exception by “establishing] that under the probative evidence he has a colorable claim of factual innocence.” Sawyerv. Whitley, 505 U.S. 333. 339 (1992) (internal quotation marks omitted and emphasis added). 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).
Although Bradley argued in his appeal that the trial court erred by refusing to give a lesser-included offense instruction and that the trial court improperly admitted “other acts” evidence, two of the claims presented in his federal habeas petition, he did not raise these claims in the state appellate court as claims that his federal constitutional rights were violated. (ECF No. 22-1 at 11-30). And the Arizona Court of Appeals denied relief on these claims of error based solely on state law, concluding that there was no lesser-included offense to the crime of conviction pursuant to state law and that, pursuant to the state rules of evidence, the trial court did not abuse its discretion in admitting evidence of the “other acts.”
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, 404 U.S. at 278; Libberton, 583 F.3d at 1164. The fair presentation requirement mandates that a state prisoner alert the 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). “If a petitioner fails to alert the state court to the fact that he is raising a federal constitutional claim, his federal claim is unexhausted regardless of its similarity to the issues raised in state court.” Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996). A claim has been fairly presented only if the petitioner has described in state court both the operative facts and the specific federal legal theory upon which he bases his claim in federal court. See Duncan v. Henry, 513 U.S. 364, 365-66 (1995); Galvan v. Alaska Dep't of Corr., 397 F.3d 1198, 1205 (9th Cir. 2005).
Bradley did not “fairly present” any federal constitutional claims to the state's “highest court, ” i.e., the Arizona Court of Appeals, in his appeal or Rule 32 action, in a procedurally correct manner. Bradley failed to raise his claims regarding the lesser-included offense instruction and the admission of “other acts” evidence as federal constitutional claims. Bradley did not present any claims to the state appellate court in his post-conviction action in a procedurally correct manner because he did not timely seek review of the trial court's denial of Rule 32 relief. Because Arizona's rules regarding the waiver and preclusion of claims bar Bradley from returning to the state courts to exhaust any previously unexhausted claims, all of the claims raised in Bradley's federal habeas petition are procedurally barred.
In response to the allegation that his claims are procedurally barred, Bradley asserts:
Mr. Bradley attempted to properly exhaust his claims for relief and continues to maintain that he believes that he either did preserve all arguments, or, that the ones that are alleged to have been unpreserved must still be considered not only due to his actual innocence claim, but also due to his ineffective assistance of counsel claims, which provide an avenue for review for the merits of all of the underlying substantive claims including the other act evidence and the denial of the lesser included offense instructions, as his appellate attorney argued the issues but unreasonably failed to federalize the claims leading to his prejudice in not having all of his legal arguments presented and in potentially facing procedural default arguments in this Court.(ECF No. 29 at 6-7) (emphasis in original).
Bradley further argues:
... Petitioner points out that these issues were not only raised or attempted to be raised by Mr. Bradley in the State court in substantial pleadings in timely appeal or post-conviction relief proceedings, but that they also clearly state constitutional issues and federal constitutional questions of law demanding review by this Court.
Further, Mr. Bradley has asserted his ineffective assistance of counsel claims as further basis to excuse any alleged default for review of the merits of the underlying substantive claims as Mr. Bradley believes that his ineffective assistance of counsel claims provide an avenue for review for the merits of the underlying substantive claims regarding the other act evidence and the denial of the lesser included offense instructions, as his appellate attorney argued the issues but unreasonably failed to federalize the claims leading to his prejudice in not having all of his legal arguments presented and in potentially facing procedural default arguments in this Court for federal issues of sufficient significance to require personal waiver by the defendant, and which were not personally waived by Mr. Bradley as constitutional issues.
Mr. Bradley also continues to assert actual innocence in Reply to any allegation of not only the statute of limitations defense, but also the allegations of lack of exhaustion/procedural default. See Schlup v. Delo, 513 U.S. 298, 326-27, 115 S.Ct. 851 (1995). The facts as detailed in the claims raised in this action, establish that it is more likely than not that no reasonable juror would have convicted Mr. Bradley had the various numerous constitutional errors not occurred and fundamental fairness demands review by this Court in order to avoid a miscarriage of justice that one who should be free or have his sentence reduced, is suffering an unconstitutional period of loss of freedom by the State of Arizona in violation of clearly established Supreme Court authority.
The free-standing actual innocence claim asserted at trial (as an insufficiency of the evidence claim) and in PCR and asserted herein also is believed to be an assertion that provides a basis to allow consideration of the merits of Mr. Bradley's other claims regardless of any procedural default argument. Mr. Bradley has always maintained his innocence and the central question in his case comes down to a very simple problem, that the undercover agent who alleges he could sneakily see inside a house at night from at least ten or more yards away outside and into a dark kitchen where he believed Mr. Bradley assisted Mr. Douglas (the person the agent had all contact with) in breaking something up and placing it in a bag, (which the photos and video do not completely support), could not actually prove he saw anything or even that the same bag was the one provided to him outside by Mr. Douglas. Mr. Douglas was the one who had all contact with the
undercover agent regarding this specific transaction including transferring what turned out to be a small amount of methamphetamine that he placed in a bag and brought out and delivered to the undercover agent.
Mr. Bradley believes that the actual innocence doctrine must provide a gateway to consideration of his claims regardless of any argument regarding procedural default or the statute of limitations as there is no purpose to an actual innocence doctrine if the court is going to be precluded from considering the claims that support such a finding. The whole idea is to assure that someone who is actually innocent is not suffering an unconstitutional deprivation of their liberty based on some procedural/technical argument that the State makes in an attempt to prevent a defendant from establishing his right to relief. Mr. Bradley's actual innocence claim provides a gateway for consideration of all of his federal habeas corpus issues regardless of any potential preclusion argument the State may attempt to raise for alleged failure to exhaust. See Schlup v. Delo, 513 U.S. 298, 315 (1995); Murray v. Carrier, 477 U.S. 478, 496 (1986) (requiring Petitioner to show that a constitutional violation has probably resulted in the conviction of someone who is actually innocent); Sawyer v. Whitley, 505 U.S. 333 (1992) (a petitioner suffering procedural defects may have his federal constitutional claims considered on the merits if he makes a showing of actual innocence). ...
Mr. Bradley continues to assert and reaffirms all arguments presented regarding the merits of his claims, and reaffirms that the claims are as follows:
***
A Mr. Douglas was the person who had all contact with the undercover agent regarding the specific transaction at issue in this case, including transferring what turned out to be a small amount of methamphetamine that he placed in a bag and brought out and delivered to the undercover agent. Mr. Bradley believes that the actual innocence doctrine must provide a gateway to consideration of his claims regardless of any argument regarding procedural default or the statute of limitations as there is no purpose to an actual innocence doctrine if the court is going to be precluded from considering the claims that support such a finding. The whole idea is to assure that someone who is actually innocent is not suffering an unconstitutional deprivation of their liberty based on some procedural problem that prevents a defendant from establishing his right to relief. See Schlup v. Delo, 513 U.S. 298, 315 (1995) ...
***
But, this whole case boiled down to a very simply question that had nothing to do with any human smuggling operation details that permeated the trial from Opening Statement through Closing Argument and the testimony of almost every single witness in between. The only actual
question for the jury was whether [] Bradley assisted [] Douglas ... by helping put drugs in a baggie ... . The undercover agent was not in the house and his recording of what occurred does not show what he says he saw. Again, the transfer from Douglas to the undercover agent, of what turned out to be meth is not at issue: the whole question is whether Mr. Bradley transferred drugs, which he did not do and for which he would never have been convicted if the unfairly prejudicial errors had not occurred in his case.(ECF No. 29 at 4- 8) (emphasis in original).
The Court notes the jury was shown video and photographic evidence regarding what the undercover agent was able to “see” with regard to Bradley placing the methamphetamine in the bag then given to the agent by Douglas. (ECF No. 13-11 at 4).
To the extent Bradley asserts his appellate counsel's errors constitute cause for his failure to present any of his federal habeas claims to the Arizona Court of Appeals, he fails to meet the procedural elements of such a claim because he never presented a claim that his appellate counsel was ineffective to the Arizona Court of Appeals in his Rule 32 action in a procedurally correct manner, i.e., by means of a timely petition for review. Although, “in certain circumstances counsel's ineffectiveness in failing properly to preserve the claim for review in state court will suffice” to establish cause for a procedural default, that ineffective assistance claim must itself have been separately presented to the state appellate courts. E.g., Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000). If the ineffective assistance asserted as cause was not fairly presented to the state courts, a petitioner must show that an excuse for that separate default exists, as well. Id. Bradley fails to make such a showing.
To the extent Bradley asserts he is entitled to federal habeas relief because he is actually innocent, this claim is not cognizable. In McQuiggin the Supreme Court declared that it had not “resolved whether a prisoner may be entitled to habeas relief based on a freestanding claim of actual innocence.” 569 U.S. at 392, citing Herrera v. Collins, 506 U.S. 390, 404-05 (1993). The Supreme Court has postulated that a claim of actual, factual innocence based on newly discovered evidence might be cognizable, but only in capital cases. See Herrera, 506 U.S. at 417. Notably, even claims of actual innocence based on “newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state proceeding.” Id., 506 U.S. at 400 (“[T]he existence merely of newly discovered evidence relevant to the innocence of a state prisoner is not a ground for federal habeas corpus relief.”).
The Ninth Circuit has postulated that, to the extent an “actual innocence” claim is cognizable, a habeas petitioner asserting a freestanding claim of actual innocence must make a “stronger showing” of innocence than that required to sustain a claim that there was insufficient evidence to support their conviction per the holding in Jackson v. Virginia, 443 U.S. 307, 319 (1979). See Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997). The required showing must go “beyond demonstrating doubt about [the petitioner's] guilt, and must affirmatively prove that he is probably innocent.” Turner v. Calderon, 281 F.3d 851, 872 (9th Cir. 2002). Post-conviction evidence serving only to “undercut the evidence presented at trial” does not suffice to meet this standard. Carriger, 132 F.3d 477. See also Spivey v. Rocha, 194 F.3d 971, 979 (9th Cir. 1999) (finding habeas relief unavailable where “the totality of the new evidence does not undermine the structure of the prosecution's case”); Swan v. Peterson, 6 F.3d 1373, 1384-85 (newly-discovered evidence warrants habeas relief only when it bears on the constitutionality of the conviction and probably would produce an acquittal).
Bradley does not present any “newly discovered” evidence of his “actual innocence, ” but instead asserts that the evidence presented at trial does not legally suffice to support the crime of conviction. Furthermore, to the extent Bradley challenges the accuracy of the Arizona Court of Appeals' rendition of the “facts” surrounding his crime and arrest and his state criminal proceedings, including the testimony presented at trial, the factual findings of a state court are presumed to be correct and can be reversed by a federal habeas court only when the federal court is presented with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Wood v. Allen, 558 U.S. 290, 293 (2010); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). “Clear and convincing evidence” within the meaning of § 2254 “requires greater proof than preponderance of the evidence, ” instead the petitioner must present evidence that provides “an abiding conviction” that the factual contentions being advanced by the petitioner are “highly probable.” Sophanthavong v. Palmateer, 378 F.3d 859, 866 (9th Cir. 2004) (quotation omitted). And the “presumption of correctness is equally applicable when a state appellate court, as opposed to a state trial court, makes the finding of fact.” Sumner v. Mata, 455 U.S. 591, 593 (1982). See also Bragg v. Galaza, 242 F.3d 1082, 1087 (9th Cir. 2001). Bradley does not present any clear and convincing evidence to controvert the state court's findings of fact, but instead reasserts that the jury could reasonably have discounted or otherwise interpreted the evidence presented at trial, essentially asserting an insufficiency of the evidence claim.
Accordingly, Bradley's federal habeas claims are procedurally barred, and Bradley fails to establish cause and prejudice with regard to his failure to properly exhaust these claims in the state courts. Bradley fails to establish that a fundamental miscarriage of justice will occur absent a consideration of the merits of his claims for relief, or that he is “actually innocent” of the crime of conviction.
IV. Conclusion
Bradley's federal habeas petition was not filed within the AEDPA's statute of limitations, and Bradley fails to show he is entitled to equitable tolling of the statute of limitations. Bradley failed to properly exhaust all of his claims for federal habeas relief in the state courts and the claims are procedurally barred. Bradley fails to show cause for or prejudice arising from his procedural default of these claims. Bradley fails to establish that a fundamental miscarriage of justice will occur absent consideration of the claims, or that he is actually innocent.
IT IS THEREFORE RECOMMENDED that the petition seeking a federal writ of habeas corpus at ECF No. 1 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 Bradley 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.
CAMILLE D. BIBLES, UNITED STATES MAGISTRATE JUDGE.