Opinion
CV-23-0075-PHX-GMS (JFM)
04-19-2024
Jorge C. Centeno-Sarabia, Petitioner v. David Shinn, et al., Respondents.
REPORT & RECOMMENDATION ON MOTION TO AMEND
James F. Metcalf United States Magistrate Judge
This matter is before the undersigned magistrate judge on referral for further proceedings and preparation of a Report & Recommendation. Because the appropriate resolution of this matter is dispositive of claims, the undersigned proceeds by way of a Report & Recommendation to the referring district judge, pursuant to 28 U.S.C. § 636(b)(1)(B).
A. MOTION TO AMEND
Background - On January 12, 2023 Petitioner commenced this case by filing his Petition for Writ of Habeas Corpus (Doc. 1), asserting five grounds for relief, stating a variety of claims, i.e. (1) error in PCR proceedings, (2) ineffective appellate counsel, (3) new material evidence, (4) double jeopardy, and (5) newly discovered evidence based on compulsory process, fair trial, Brady/Giglio, self-representation, ineffective assistance, and prosecutorial misconduct. The new material evidence claim in Ground 3 is based on a suppressed “DNA Summary Sheet,” and a “PPD Laboratory Report.”
Brady v. Maryland, 373 U.S. 83 (1963) found a due process right to prosecution's disclosure of exculpatory information. Giglio v. U.S., 405 U.S 150 (1972) found a violation of due process from failure to disclose impeachment evidence arising from promises of benefits to the prosecution's witness for testifying and failure to correct incorrect testimony by the witness about such promises.
This case was stayed to permit Petitioner to complete pending state court proceedings in his Fourth PCR proceeding, to allow him to exhaust state remedies on a new habeas claim. (Order 8/17/23, Doc. 26.) Those proceedings were eventually completed, and the stay terminated. (Order 2/12/24, Doc. 43.)
Briefs - Petitioner then lodged a proposed Amended Petition (Doc. 45) and filed the instant Motion to Amend (Doc. 48), and a Notice of Filing purporting to identify the changes in his proposed pleading in accordance with Local Rule of Civil Procedure 15.1(a). Although the identified changes were limited to a newly proposed Ground Six, the Court accepted the Rule 15.1 statement as “a binding and affirmative representation by Petitioner that his proposed First Amended Petition (Doc. 49) makes no alterations of any kind to Ground One through Five of the original Petition, and that it adds a new Ground Six asserting a claim of actual innocence.” (Order 3/12/24, Doc. 52.)
Petitioner's proposed Ground Six asserts a claim of actual innocence based on:
evidence that surfaced subsequent to trial, there[']s a scientific DNA evidence that point[s to] another suspect, the scientific DNA evidence proof no contact at all between victim and petitioner.. .Moreover state suppressed evidence that was exculpatory a DNA chain of custody the “DNA Summary Sheet” showing another Y-strand excluding the petitioner.(Doc. 51-1, at 2 (emphasis added).) Thus, Petitioner's actual innocence claim is based on “new evidence” from the DNA Summary Sheet.
On March 25, 2024, Respondents filed their Response (Doc. 53) arguing that actual innocence may not be a cognizable habeas claim, Petitioner did not assert the same claim of actual innocence to the state court and thus it is unexhausted, and even if exhausted the claim fails to make the requisite showing to support a claim of actual innocence.
Petitioner has not replied, and his time to do so expired on April 5, 2024. See LRCiv 7.2(d) (7 days after response); Fed. R. Civ. Proc. 6(d) (additional 3 days after mailed service).
B. RELEVANT STATE PROCEEDINGS
Both Petitioner's Third and Fourth PCR proceedings bear some relevance to his proposed Ground Six.
Prior to commencing this habeas petition, Petitioner had filed a Third PCR Petition (Exh. YYYY) on January 21, 2022 asserting, inter alia, a claim of “innocence” pursuant to Ariz. R. Crim. Proced. 32.1(e) based on in part on the prosecution having “suppressed the DNA Summary Sheet ...substantial evidence pointing to a different suspect.” .this evidence proves that the central forensic proof connecting the defendant to the crime has been called into question.” (Exh. YYYY at 10, Doc. 17-17 at 11.) This Third Petition was summarily dismissed by the PCR Court on February 14, 2022, with the PCR Court finding the actual innocence claim without merit. (Exh. ZZZZ, Order 2/14/22.) On March 22, 2022, Petitioner filed a Motion for Rehearing (Exh. AAAAA), which was not delivered to the PCR judge until August 3, 2022, and was denied as an unauthorized motion for reconsideration. (Exh. BBBBB, Order 8/8/22.) On August 24, 2022, Petitioner filed a Petition for Review (Exh. CCCCC), seeking review of the February 14, 2022 and August 8, 2022 orders. That Petition asserted claims based on rights to compulsory process, a fair trial, self-representation and Giglio. No claim of innocence was raised. On February 14, 2023, the Arizona Court of Appeals granted the petition for review, but denied relief. (Exh. DDDDD, Mem. Dec. 2/14/23.)
In the meantime, Petitioner had commenced on July 25, 2022 his Fourth PCR proceeding by filing a “Motion to have Case Reopened” (attached to the Answer (Doc. 17) as Exhibit EEEEE) asserting a claim of “actual innocence” based on the following “newly discovered” evidence: (A) a November 2019 article in the magazine Criminal Legal News on “secondary DNA transfer” and “confirmation bias;” and (B) research by a Dr. Peter Gill (“confirmed by University of Indiana Researchers”) on “innocent (passive) transfer” of DNA. The State filed a Response (Exh. GGGGG) arguing that although the referenced materials may have been newly discovered by Petitioner, the issue of secondary transfer was raised at trial and the science underlying the secondary transfer of DNA was noted by the Criminal Law News article to have dated back to 1997. Petitioner's Fourth Petition was dismissed on November 22, 2022 (Exh. FFFFF, Order 11/22/22), and after further briefing the dismissal was affirmed on March 2, 2023 (Exh. HHHHH, Order 3/2/23.) Petitioner then filed his Petition for Review (Exh. IIIII) again arguing actual innocence on the basis of the 2019 Criminal Legal News article and the research of Dr. Gill (among others). Petitioner included arguments asserting the significance of such evidence based on the DNA Summary Sheet's revelation of another Y-strand that “was suppressed at trial.” (Exh. IIIII at 2-3, Doc. 17-18 at 21-22.) The State responded (Notice of Status, Doc. 27, Exh. B) arguing the only abuse of discretion argued was deciding the petition without considering the briefs, and the March 2, 2023 Order (Exh. HHHHH) explicitly reflected such consideration. On October 25, 2023 the Arizona Court of Appeals granted review but denied relief. The court reasoned the PCR court had considered the briefs (Exh. HHHHH at ¶ 8), but Petitioner's claim of actual innocence was procedurally barred by Arizona Rules of Criminal Procedure 32.2(b) because Petitioner had failed to provide sufficient reasons for his failure to raise the claim earlier (id. at ¶¶ 9-10). The court alternatively rejected the claim of actual innocence on the merits because it was not “colorable,” but was instead “based on speculation that innocent transfer of DNA occurred in this case” when testimony at trial showed that such accidental transfer to the victim's chest would have been “impossible.” (Id. at ¶ 11.) Petitioner sough further review by the Arizona Supreme Court, which was summarily denied on February 2, 2024. (Notice of Status, Doc. 42 at Attachment, Order 2/2/24.)
The reference to a 2014 “Comprehensive book” appears to be the book referenced in the Criminal Legal News article describing Dr. Gill's work as “an entirely scholarly bookMisleading DNA Evidence: Reasons for Miscarriages of Justice.” (Exh. EEEEE at Exh. 4, Doc. 17-17 at 100.) In his “Motion to Have Case Reopened,” Petitioner (apparently referencing this work) described: “In 2014 Dr. Peter Gill also wrote a comprehensive book ”
Petitioner labelled this petition as “Petition for Review of Third Postconviction Relief Petition.” (Exh. IIIII at 1, Doc. 17-18 at 15.) However, he stated he was seeking review of “the decision of the Superior Court on 3-02-2023.” (Id.) Moreover, he had already sought review in his Third PCR proceeding, and Arizona law does not provide for successive petitions for review in the same proceeding. See Ariz. R. Crim. Proced. 32.16(a)(1) (petition for review must be filed within 30 days of trial court's decision).
C. APPLICATION OF LAW
Standard to Amend - A petition for writ of habeas corpus “may be amended or supplemented as provided in the rules of procedure applicable to civil actions.” 28 U.S.C. § 2242. Thus, Federal Rule of Civil Procedure 15(a) governs the amendment of habeas petitions. Mayle v. Felix, 545 U.S. 644, 655 (2005).
In considering motions to amend the courts “often consider: bad faith, undue delay, prejudice to the opposing party, futility of the amendment, and whether the party has previously amended his pleadings. However, each is not given equal weight. Futility of amendment can, by itself, justify the denial of a motion for leave to amend.” Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (citations omitted) (reviewing denial of leave to amend habeas petition).
Here, the undersigned concludes that Petitioner's proposed amendment would be futile, and thus the motion should be denied.
Exhaustion - Respondents argue that although Petitioner argued an actual innocence claim in his recently completed state post-conviction relief proceedings that is not based on the same factual arguments now asserted.
“Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, 28 U.S.C. § 2254(b)(1)..[to do so] the prisoner must ‘fairly present' his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (cleaned up). A claim has been fairly presented to the state's court if the petitioner has described both the operative facts and the federal legal theory on which the claim is based. Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003). "[N]ew factual allegations do not render a claim unexhausted unless they 'fundamentally alter the legal claim already considered by the state courts.'" Chacon v. Wood, 36 F.3d 1459, 1468 (9th Cir.1994) (quoting Vasquez v. Hillery, 474 U.S. 254, 260 (1986)).
Here, Respondents rely on the Arizona Court of Appeals' summation of Petitioner's factual allegations in his Fourth PCR petition (“Motion to have Case Reopened”). (See Response, Doc. 53 at 2 (citing Doc. 40-1 at 29).)
¶3 In July 2022, Centeno-Sarabia filed a “Motion to Have Case Reopened on the Grounds of Newly Discovered Evidence, Misconduct by the State and Actual Innocence.” ...Relying on a November 2019 magazine article and a 2014 “comprehensive book” about the innocent transfer of DNA, Centeno-Sarabia further asserted that he had been “wrongfully convicted” because he and the victim were neighbors and “reasonable innocent transfer of DNA” should have been expected.(Mem. Dec. 10/25/23, Doc. 40-1 at 27.) However, a state court's decision can generally only establish fair presentation, it cannot preclude it. Rather, this Court must look to a petitioner's briefs to the state courts to ascertain whether the necessary factual and legal arguments have been adequately presented.
Here, Petitioner's proposed Ground Six is based on the DNA Summary Sheet, and makes no reference to the Criminal Law News article or Dr. Gill's research. The DNA Summary Sheet evidence was the subject of his claim of actual innocence in Petitioner's Third PCR Petition (Exh. YYYY). However, Petitioner failed to include that claim in his Petition for Review (Exh. ZZZZ) in that proceeding. “In cases not carrying a life sentence or the death penalty, ‘claims of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.'” Castillo v. McFadden, 399 F.3d 993, 998 n. 3 (9th Cir. 2005) (quoting Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir.1999)). Thus, Petitioner did not properly exhaust his state remedies on the claim in proposed Ground Six in his Third PCR proceeding.
The undersigned assumes arguendo (in Petitioner's favor) that his state court claims of actual innocence were fairly presented as a federal claim, and not merely a state law claim of innocence under Ariz. R. Crim. Proced. 32.1(h). If not fairly presented as a federal claim, Petitioner's claims would, at a minimum be unexhausted, requiring dismissal as diceiicced hereinafter.
Conversely, Petitioner's claim of actual innocence in his Fourth PCR proceeding was based on the magazine article and book by Dr. Gill. (At most, the DNA Summary Sheet was referenced to support that claim.) His proposed Ground Six is not. Thus, Petitioner did not properly exhaust his state remedies on his new claim in his Fourth PCR proceeding.
Respondents do not assert a procedural default of the new claim has occurred or the application of a procedural bar on independent and adequate state grounds.
As argued by Respondents, unexhausted claims must generally be dismissed without prejudice. Johnson v. Lewis, 929 F.2d 460, 463 (9th Cir. 1991).
Respondents argue that a further motion to stay to allow Petitioner to exhaust his state remedies would not be proper, relying on Rhines v. Weber, 544 U.S. 269 (2005). However, as discussed in granting the earlier stay in this case, Rhines only applies to mixed petitions. The Court could theoretically deny the motion to amend without prejudice, leaving the (arguably) fully exhausted petition pending, and grant a new stay to allow Petitioner to pursue proper exhaustion and subsequently amend. However, Petitioner has not requested such a stay. Moreover, the Scheduling Order in this case required that all motions to stay be filed within 28 days of service of the answer, which was filed and served by mail on May 16, 2023. (Answer, Doc. 17 at 41, Cert. of Svc.) That deadline expired on June 16, 2023, and Petitioner has offered no showing of inability to meet it despite diligence.
Because the claim in Petitioner's proposed Ground Six is unexhausted,, amendment is futile and must be denied.
Lack of Merit - Even if somehow Petitioner properly exhausted an actual innocence claim in his Fourth PCR proceeding, Petitioner's proposed Ground Six would fail on the merits under the deferential standards under § 2254(d) and thus be futile.
Where a state court has rejected a claim on the merits, deferential review under 28 U.S.C. § 2254(d) applies, setting a high standard for the legal or factual errors that will justify habeas relief. Here, the Arizona Court of Appeals rejected Petitioner's claim of actual innocence on the merits:
¶11 Even assuming this proceeding were not subject to summary dismissal based on Rule 32.2(b), however, Centeno-Sarabia has failed to establish a colorable claim. Centeno-Sarabia's claim is based on speculation that innocent transfer of DNA occurred in this
case. Indeed, as the state pointed out below, a detective testifed at trial that “it would have been impossible for [Centeno-Sarabia]'s DNA to accidentally appear onto the victim's chest. The trial court therefore did not abuse its discretion by summarily dismissing Centeno-Sarabia's actual innocence claim.(Mem. Dec. 10/25/23, Doc. 40-1 at 30 (citations omitted).) It is true that the Arizona Court of Appeals also rejected Petitioner's claim as procedurally barred, but deference under § 2254(d) applies to an alternative holding on the merits. Clabourne v. Ryan, 745 F.3d 362, 383 (9th Cir. 2014), overruled by on other grounds by McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015).
To justify habeas relief based on legal error, a state court's merits-based decision must be “contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” before relief may be granted. 28 U.S.C. §2254(d)(1). There is no such clearly established federal law. Rather, as noted by Respondents, the U.S. Supreme Court has yet to recognize a freestanding claim of actual innocence in a non-death penalty case. (Response, Doc. 53 at 4 (citing Prescott v. Santoro, 53 F.4th 470, 482 (9th Cir. 2022)).) Indeed, in Herrera v. Collins, 506 U.S. 390 (1993), the Supreme Court observed that "[c]laims 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 criminal proceedings This rule is grounded in the principle that federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution -- not to correct errors of fact." Id. at 400.
Moreover, Petitioner has posited nothing to show sufficient factual error, i.e. that the state court's decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). "[A] federal court may not second-guess a state court's fact-finding process unless, after review of the state-court record, it determines that the state court was not merely wrong, but actually unreasonable." Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004).
Accordingly, assertion of Petitioner's proposed Ground Six would be utile because the claim would be without merit.
D. RECOMMENDATIONS
IT IS THEREFORE RECOMMENDED Petitioner's Motion to Amend (Doc. 48) be DENIED.
E. EFFECT OF RECOMMENDATION
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, pursuant to Rule 72, 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. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will 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), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”