Opinion
CV-18-0420-TUC-RCC (JR)
04-14-2021
Kyle Leslie Catlin, Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
HONORABLE JACQUELINE M. RATEAU UNITED STATES MAGISTRATE JUDGE
Petitioner Kyle Leslie Catlin, incarcerated at the Arizona State Prison in Tucson, Arizona, has filed a Petition for Writ of Habeas corpus pursuant to 28 U.S.C. § 2254. Before the Court are the Petition (Doc. 1), Respondents' Answer (Doc. 15), and Respondents' Notice to the Court Regarding Stay (Doc. 19). No. reply was filed. Pursuant to the Rules of Practice of this Court, this matter was referred to Magistrate Judge Rateau for Report and Recommendation. Based on the thorough and unrebutted arguments in the Answer, the Magistrate Judge recommends the District Court, after its independent review of the record, dismiss the Petition.
I. Factual and Procedural Background
A. Trial Court
In its Memorandum Decision denying post-conviction relief, the Arizona Court of Appeals summarized the facts relevant to the instant petition:
In April 2012, police officers stopped Catlin for a traffic violation; he was carrying nearly $4,000 in cash and about two ounces of marijuana, as well as a medical marijuana caregiver card allowing him to possess 2.5 ounces of marijuana but not to cultivate marijuana. A search of his residence uncovered about two pounds of additional marijuana (an amount consistent with possession for sale, particularly in light of the amount of cash in his possession), over one hundred marijuana plants, and materials for cultivating and packaging marijuana.State v. Catlin, No. 2 CA-CR 2015-0467, 2017 WL 491129 (Ariz. App. Jan. 19, 2017) (also attached to Respondents' Limited Answer (Doc. 15) as Ex. F). After a jury trial, Catlin was convicted of possession of marijuana for sale, attempted production of marijuana, and possession of drug paraphernalia. He was sentenced to concurrent prison terms, the longest of which is two years. Ex. F, p. 2; Ex. B (Sentencing Minute Entry).
B. Direct Appeal
Counsel filed a no-merits brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that he had been “unable to find any preserved arguable legal issues to raise on appeal.” Ex. D, p. 25. Catlin filed a pro se supplemental brief in which he raised myriad arguments, most related to the application of the Arizona Medical Marijuana Act (AMMA), A.R.S. §§ 36-2801 through 36-2819. Ex. E. His arguments included contending that the state could not prosecute him because he had an unrevoked marijuana registry card, that he is entitled to receive “donations” for marijuana as a caregiver pursuant to A.R.S. § 36-2811(B)(3), that that he was prevented from proving he did not possess more than the amount of marijuana permitted by his cardholder status because the state improperly stored the marijuana seized from him, and that the evidence obtained during the traffic stop, search of his person, and from his statements should be suppressed. Ex. F, pp. 3-5. The Arizona Court of Appeals rejected Catlin's arguments, found no error and affirmed Catlin's convictions and sentences. Ex. F, p. 5.
C. PCR Proceeding
Catlin filed an untimely PCR notice with a memorandum explaining that his tardiness was due to incorrect advice from counsel, attaching a letter to him from his attorney containing that incorrect information. Exs. J, K. The state trial court appointed counsel to represent Catlin in the PCR proceeding. Ex. L. On January 14, 2019, appointed counsel filed a PCR petition asserting that Catlin's trial counsel was ineffective because he “completely omitted offering Mr. Catlin the option of pleading to the charges” because had he done so “he could get a probation available plea.” Ex. M. Because the instant petition was pending at the time Catlin commenced his PCR proceedings, this action was stayed. Doc. 17. On July 31, 2019, the trial court denied Catlin's PCR petition. Ex. AA. Catlin did not file a timely petition for review or ask for permission to file a delayed petition for review. Ex. BB, CC. On March 12, 2020, the stay was lifted.
D. Habeas Petition
In the currently pending habeas petition, Catlin alleges three instances of ineffective assistance of counsel: (1) that his counsel was ineffective for being unprepared for trial, did no investigation, failed to call exonerating witnesses, failed to establish an immunity defense, and failed to impeach the police witnesses; (2) that his counsel was ineffective for intentionally misleading Catlin with respect to the Arizona Rule of Criminal Procedure, causing him to default all of his IAC claims; and (3) that his counsel was ineffective for failing to advise Catlin to plead guilty to the court. Doc. 1, pp. 9-11. In Ground Four, Catlin challenges on due process grounds the immunity provisions of the AMMA. As discussed below, each of the grounds raised in the Petition are unexhausted and not subject to habeas review.
II. Exhaustion and Procedural Default
A. Legal Standards
With limited exceptions, a state prisoner must exhaust his available state remedies before a federal court may consider the merits of his habeas corpus petition. See 28 U.S.C. § 2254(b)(1), (c); 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 a 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. See, e.g., Castille v. Peoples, 489 U.S. 346, 351 (1989); Rose v. Palmateer, 395 F.3d 1108, 1110 (9th Cir. 2005). For Arizona non-capital cases, the Ninth Circuit has concluded that the “highest court” requirement is satisfied if the petitioner presented his claim to the Arizona Court of Appeals, either in a direct appeal or in a petition for post-conviction relief. Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999).
“[A] petitioner fairly and fully presents a claim to the state court for purposes of satisfying the exhaustion requirement if he presents the claim: (1) to the proper forum, (2) through the proper vehicle, and (3) by providing the proper factual and legal basis for the claim.” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005) (citations omitted). 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); 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.”). “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 “general appeal to a constitutional guarantee, ” such as due process, is insufficient to achieve fair presentation. Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000) (quoting Gray v. Netherland, 518 U.S. 152, 163 (1996)); see also Castillo v. McFadden, 399 F.3d 993, 1003 (9th Cir. 2005) (“Exhaustion demands more than drive-by citation, detached from any articulation of an underlying federal legal theory.”).
A federal habeas court also may not review a claim if the state court's denial of relief rests upon an independent and adequate state ground. See Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). As the United States Supreme Court explained in Coleman:
In the habeas context, the application of the independent and adequate state ground doctrine is grounded in concerns of comity and federalism. Without the rule, a federal district court would be able to do in habeas what this Court could not do on direct review; habeas would offer state prisoners whose custody was supported by independent and adequate state grounds an end run around the limits of this Court's jurisdiction and a means to undermine the State's interest in enforcing its laws.Id. at 730-31.
The same concerns of comity and federalism apply to claims that have been procedurally defaulted in state court. Id. at 731-32. 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). There are two types of procedural bars, “express and implied.” Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). An express procedural bar exists if the state court denies or dismisses a claim based on a procedural bar “‘that is both ‘independent' of the merits of the federal claim and an ‘adequate' basis for the court's decision.” Harris v. Reed, 489 U.S. 255, 260 (1989); Stewart v. Smith, 536 U.S. 856, 860 (2002) (Arizona's “Rule 32.2(a)(3) determinations are independent of federal law because they do not depend upon a federal constitutional ruling on the merits”). Procedural default also occurs when a petitioner did present a claim to the Arizona Court of Appeals, but the appellate court did not address the merits of the claim because it found the claim precluded by a state procedural rule. See, e.g., Atwood v. Ryan, 870 F.3d 1033, 1059 (9th Cir. 2017).
A procedural bar may also be applied to unexhausted claims where state procedural rules make a return to state court futile. See Coleman, 501 U.S. at 735 n.1 (claims are barred from habeas review when not first raised before state courts and those courts “would now find the claims procedurally barred”). In Arizona, claims not previously presented to the state courts via either direct appeal or collateral review 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 or untimely petition is permitted. See Ariz.R.Crim.P. 32.1(b)-(h), 32.2(a), 33.1(b)-(h), 33.2 (precluding claims not raised on appeal or in prior petitions for post-conviction relief), 32.4(b)(3) and 33.4(b)(3) (time bar). Arizona courts have consistently applied Arizona's procedural rules to bar further review of claims that were not raised on direct appeal or in prior Rule 32 post-conviction 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. 2001) (“We have held that Arizona's procedural default rule is regularly followed [“adequate”] in several cases.”) (citations omitted), reversed on other grounds, Stewart, 536 U.S. 856; see also Ortiz v. Stewart, 149 F.3d 923, 931-32 (9th Cir. 1998) (rejecting argument that Arizona courts have not “strictly or regularly followed” Rule 32 of the Arizona Rules of Criminal Procedure); State v. Mata, 916 P.2d 1035, 1050-52 (Ariz. 1996) (waiver and preclusion rules strictly applied in post-conviction proceedings).
B. Procedural Status of Catlin's IAC Claims
Catlin asserts three IAC claims in the Petition. Of these, only one, that his counsel should have had him plead guilty to the court, was raised in the trial court and, because Catlin did not appeal the trial court's denial of his PCR petition, none were presented to the Arizona Court of Appeals. To properly exhaust a claim, it must be raised on every level of review. See Casey v. Moore, 386 F.3d 896 (9th Cir. 2004). Because these claims were not raised in a complete round of Arizona's review process, they were not properly exhausted and are procedurally defaulted. O'Sullivan, 526 U.S. at 845 (“[S]tate prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.”)
Additionally, if Catlin were to now return to state court to litigate his claims, they would be found to be waived and untimely under Rules 32.1(b)-(h), 32.2(a), 33.1(b)-(h), 33.2 of the Arizona Rules of Criminal Procedure because they do not fall within an exception to preclusion, and time barred under Rules 32.4(b)(3) and 33.4(b)(3) (time bar). Catlin's claims are therefore technically exhausted but procedurally defaulted.
C. Procedural Status of Catlin's AMMA Claim
In Ground Four, Catlin challenges on due process grounds the immunity provisions of the AMMA. This is a close call. Respondents contend that the claim is not exhausted because Catlin failed in the state court to label this claim as a federal, rather than state, due process claim. However, there is a needle in Catlin's haystack. In his brief on direct appeal Catlin argued that:
The federal due process clauses, as well as article II §§ 1-4 of the Arizona Constitution, insist upon legality. The Supreme Court has repeatedly stated that criminal Statutes which fail to give notice that an act has been made criminal before it is done are unconstitutional deprivations of due process of law. See e.g Lanzetta v. New Jersey, 306 U.S. 451 (1939) United States v. Cohen Grocery Co, 225 U.S. 81 (1921). See also Gonzalez, 216 Ariz. 11.Ex. E, ¶ 88. Typically, broad, conclusory allegations of unconstitutionality are insufficient to state a cognizable claim. Jones v. Gomez, 66 F.3d 199, 205 (9th Ci r.1995); see also Hiivala, 195 F.3d at 1106 (citing Gray v. Netherland, 518 U.S. 152, 162-63 (1996) (“general appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair trial, are insufficient to establish exhaustion)). Here, Catlin has done just enough to survive this standard. Lanzetta addresses whether a New Jersey statute is “repugnant to the due process clause of the Fourteenth Amendment” by reason of vagueness and uncertainty. 306 U.S. at 452. Cohen Grocery, which Catlin miscites, addresses whether a federal statute is “vague, indefinite, and uncertain” such that it was repugnant to the constitution. United States v. L. Cohen Grocery Co., 255 U.S. 81, 91-92 ((1921). These cases thus did inform the court of Catlin's legal theories and, considered in conjunction with the surrounding paragraphs, were not detached from the underlying legal authority, see Castillo, 399 F.3d at 1003, and Ground Four is exhausted.
D. Cause and Prejudice
A federal court may not consider the merits of a procedurally defaulted claim unless the petitioner can demonstrate cause for his noncompliance and actual prejudice, or establish that a miscarriage of justice would result from the lack of review. See Schlup v. Delo, 513 U.S. 298, 321 (1995). To establish cause, a petitioner must point to some objective factor external to the defense impeded his efforts to comply with the state's procedural rules. Dretke, 541 U.S. at 393-94. “[C]ause is an external impediment such as government interference or reasonable unavailability of a claims factual basis.” Robinson v. Ignacio, 360 F.3d 1044, 1052 (9th Cir. 2004) (citations omitted). Ignorance of the state's procedural rules or lack of legal training do not constitute legally cognizable “cause” for a petitioner's failure to fairly present a claim. Hughes v. Idaho State Board of Corrections, 800 F.2d 905, 908-10 (9th Cir. 1986); Schneider v. McDaniel, 674 F.3d 1144, 1153 (9th Cir. 2012). “Prejudice” is actual harm resulting from the constitutional violation or error. Magby v. Wawrzaszek, 741 F.2d 240, 244 (9th Cir. 1984); Thomas v. Lewis, 945 F.2d 1119, 1123 (9th Cir. 1996). Here, Catlin did not file a reply and has neither contended that the Grounds One through Three are exhausted and not procedurally defaulted nor argued that cause and prejudice exist in this case. Therefore, the claims are not subject to review.
III. Cognizability
Respondents next contend that Catlin's Ground Four claim is not cognizable because it is merely a challenge to the state courts' application of state statutes and that it is not exhausted. The Court agrees. Although Catlin alleges a constitutional violation, Ground Four asserts a state law claim based on what Catlin characterizes as the “statutory immunity” provided in the AMMA, A.R.S. § 36-2811(B)(2). The Arizona Court of Appeals addressed and denied this claim, finding that the protections of the statute are unavailable if the cardholder fails to comply with the conditions provided in the statute and is then subject to prosecution for all marijuana use or possession. Ex. F, p. 3 (citations omitted). Even if this Court were to find that the court of appeals misinterpreted the statute, Catlin has not stated a claim for federal habeas relief. An error in the application of the Arizona state law is not cognizable as a federal habeas claim. See Moor v. Palmer, 603 F.3d 658, 661 (9th Cir. 2010) (alleged errors in application of state statutes does not state a basis for federal habeas corpus relief); Noriega v. Ryan, 2012 WL 3228831, at *3 (D. Ariz. Jul. 26, 2012) (concluding that “whether a state sentencing statute that requires harsher punishments for ‘dangerous crimes against children' applies to Petitioner's offenses ... turns solely on the interpretation of state law” and federal habeas corpus review is unavailable).
While there are some instances where a state's interpretation of its statutes warrants federal review, this is not one of them. This case falls within the general rule governing federal review of state court interpretations of state statutes. A federal court may review a state court's interpretation of state law only when the state court's interpretation (1) is “untenable, ” meaning “incapable of being maintained or supported, ” or (2) “amounts to a subterfuge to avoid federal review of a constitutional violation.” Taylor v. Kincheloe, 920 F.2d 599, 609 (9th Cir. 1990); see Melugin v. Hames, 38 F.3d 1478, 1487 (9th Cir. 1994) (in the face of a First Amendment challenge brought in a habeas petition, the federal court was bound by the Alaska appellate court's interpretation of a state criminal statute and its application to petitioner's conduct, because “a question of state statutory construction, . . . is a question of state law, as factually applied” in the petitioner's case). The state court's interpretation of the statute is not untenable or incapable of being maintained or supported. And it certainly is not a subterfuge to avoid review of a constitutional claim as Catlin has never clearly explained precisely how he believes the state court's interpretation was incorrect under the federal constitution. He merely argues “sentence construction” and contends that to interpret the statute the state court was required to “break the sentence down into its proper phrases, clauses, sentences, type, subject, predicate, modifiers, nouns, verbs, adjectives, prepositions, conjunctions, articles, and punctuation.” Ex. E, p. 63. However, he does not offer authority for these arguments and the Court finds none, constitutional or otherwise. The claim is not cognizable on habeas review.
IV. Recommendation
Based on the foregoing, the Magistrate Judge RECOMMENDS that the District Court, after its independent review, deny and dismiss Catlin's Petition for Writ of Habeas Corpus (Doc. 1) and direct the Clerk of Court to enter judgment in favor of Respondents and against Petitioner.
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.
However, 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 District Court. See 28 U.S.C. § 636(b)(1) and Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Replies shall not be filed without first obtaining leave to do so from the District Court. If any objections are filed, this action should be designated case number: CV 18-0420-TUC-RCC. Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
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, a certificate of appealability be denied because Lowe has not made a substantial showing of the denial of a constitutional right.