Opinion
CV-21-01619-PHX-MTL (MHB)
01-26-2022
Robert Lee Coleman, Petitioner, v. David Shinn, et al., Respondents.
HONORABLE MICHAEL T. LIBURDI, UNITED STATES DISTRICT COURT JUDGE
REPORT AND RECOMMENDATION
HONORABLE MICHELLE H. BUMS UNITED STATES MAGISTRATE JUDGE
On September 21, 2021, Petitioner Robert Lee Coleman, who is confined in the Arizona State Prison, Cook Unit, Florence, Arizona, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (hereinafter “habeas petition”). (Doc. 1.) On November 22, 2021, Respondents filed an Answer. (Doc. 12.) Petitioner has not filed a reply.
PROCEDURAL BACKGROUND
On August 24, 2018, a grand jury indicted Petitioner on one felony count of interference with monitoring devices, a class four felony. (Doc. 12, Exh. A.) Thereafter the state filed an allegation of aggravating circumstances, and an allegation of historical priors. (Id., Exhs. B, C.) On June 12, 2019, Petitioner entered into a plea agreement in which he agreed to plead guilty to one count of interference with monitoring devices, a class four felony, and in exchange Petitioner would receive a sentence of no less than the presumptive term of 4.5 to 7.5 years, with that sentence to run concurrent with the sentence imposed in case number CR2018-104075-001. (Doc. 1, Exh. A at 1-2.) Petitioner was subsequently sentenced to 5.5 years in prison, to run concurrent with his sentence in CR2018-104075-001. (Doc.12, Exh. D.)
On July 31, 2019, Petitioner, through counsel, filed a petition for post-conviction relief (PCR), in which he challenged his sentence based upon the sentencing judge's improper finding of factors supporting an aggravated sentence. (Doc. 1, Exh. B.) He also raised a claim of ineffective assistance of counsel at sentencing based upon her “fail[ure] to object to the court imposing a greater-than-presumptive sentence without finding at least one statutory aggravating circumstance.” (Id., at 6.) The state responded that it conceded the error in sentencing, as Petitioner's sentence was “greater than the statutory maximum without a finding of the necessary statutory aggravating circumstances.” (Id., Exh. C.) The trial court granted Petitioner's PCR petition, vacated the sentencing, and scheduled a resentencing. (Doc. 12, Exh. F.) On October 14, 2020, Petitioner was re-sentenced to the presumptive sentence of 4.5 years in prison. (Id., Exh. G.) Petitioner did not appeal or initiate post-conviction proceedings following his re-sentencing.
Petitioner timely filed his habeas petition on September 21, 2021. In his petition, Petitioner raises the following claims: (1) Ineffective assistance of counsel, for the reason that “counsel was deficient throughout the entire court process, . . . had no actual defense, . . . and no objective in defense of client;” and (2) double jeopardy, for the reason that his sentence was improperly enhanced by his prior Illinois felony conviction. (Doc. 1.) Respondents assert that Petitioner's claims are technically exhausted but procedurally defaulted without excuse. (Doc. 12.)
DISCUSSION
A. Exhaustion and Procedural Default.
A state prisoner must exhaust his remedies in state court before petitioning for a writ of habeas corpus in federal court. See 28 U.S.C. § 2254(b)(1) and (c); Duncan v. Henry, 513 U.S. 364, 365-66 (1995); McQueary v. Blodgett, 924 F.2d 829, 833 (9th Cir. 1991). To properly exhaust state remedies, a petitioner must fairly present his claims to the state's highest court in a procedurally appropriate manner. See O'Sullivan v. Boerckel, 526 U.S. 838, 839-46 (1999). In Arizona, a petitioner must fairly present his claims to the Arizona Court of Appeals by properly pursuing them through the state's direct appeal process or through appropriate post-conviction relief. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994).
Habeas relief lies only on “ground[s] that [a petitioner] is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). “[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (“[F]ederal habeas corpus relief does not lie for errors of state law.”). Proper exhaustion requires a petitioner to have “fairly presented” to the state courts the exact federal claim he raises on habeas by describing the operative facts and federal legal theory upon which the claim is based. See, e.g., Picard v. Connor, 404 U.S. 270, 275-78 (1971) (“[W]e have required a state prisoner to present the state courts with the same claim he urges upon the federal courts.”). A claim is only “fairly presented” to the state courts when a petitioner has “alert[ed] the state courts to the fact that [he] was asserting a claim under the United States Constitution.” Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000) (quotations omitted); see Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996) (“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.”).
Additionally, a federal habeas court generally 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). The United States Supreme Court has explained:
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. Thus, in order to prevent a petitioner from subverting the exhaustion requirement by failing to follow state procedures, a claim not presented to the state courts in a procedurally correct manner is deemed procedurally defaulted, and is generally barred from habeas relief. See id. at 731-32.
If a state court expressly applied a procedural bar when a petitioner attempted to raise the claim in state court, and that state procedural bar is both “independent” and “adequate” - review of the merits of the claim by a federal habeas court is ordinarily barred. See Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) (“When a state-law default prevents the state court from reaching the merits of a federal claim, that claim can ordinarily not be reviewed in federal court.”) (citing Wainwright v. Sykes, 433 U.S. 72, 87-88 (1977) and Murray v. Carrier, 477 U.S. 478, 485-492 (1986)).
A state procedural default rule is “independent” if it does not depend upon a federal constitutional ruling on the merits. See Stewart v. Smith, 536 U.S. 856, 860 (2002).
A state procedural default rule is “adequate” if it is “strictly or regularly followed.” Johnson v' Mississippi, 486 U.S. 578, 587 (1988) (quoting Hathorn v. Lovorn, 457 U.S. 255, 262-53 (1982)).
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”); Franklin v. Johnson, 290 F.3d 1223, 1230-31 (9th Cir. 2002) (“[T]he procedural default rule barring consideration of a federal claim ‘applies only when a state court has been presented with the federal claim,' but declined to reach the issue for procedural reasons, or ‘if it is clear that the state court would hold the claim procedurally barred.'”) (quoting Harris v. Reed, 489 U.S. 255, 263 n.9 (1989)).
Specifically, 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 petition is permitted. See Ariz.R.Crim.P. 32.1, 32.2(a), 33.1, 33.2 (precluding claims not raised on appeal or in prior petitions for postconviction relief), 32.4 and 33.4 (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. 856, 860 (2002) (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 v. Smith, 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, 185 Ariz. 319, 334-36, 916 P.2d 1035, 1050-52 (Ariz. 1996) (waiver and preclusion rules strictly applied in post-conviction proceedings).
Effective January 1, 2020, former Arizona Rules of Criminal Procedure 32 and 33 were abrogated, and new Rules 32 and 33 were adopted. As a general matter, the substance of former Rule 32 was divided among the two new rules based on whether a defendant was convicted at trial (new Rule 32) or had pled guilty or no contest (new Rule 33).
The federal court will not consider the merits of a procedurally defaulted claim unless a petitioner can demonstrate that a miscarriage of justice would result, or establish cause for his noncompliance and actual prejudice. See Schlup v. Delo, 513 U.S. 298, 321 (1995); Coleman, 501 U.S. at 750-51; Murray, 477 U.S. at 495-96. Pursuant to the “cause and prejudice” test, a petitioner must point to some external cause that prevented him from following the procedural rules of the state court and fairly presenting his claim. “A showing of cause must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded [the prisoner's] efforts to comply with the State's procedural rule. Thus, cause is an external impediment such as government interference or reasonable unavailability of a claim's factual basis.” Robinson v. Ignacio, 360 F.3d 1044, 1052 (9th Cir. 2004) (citations and internal quotations omitted). The petitioner must also show actual prejudice, not just the possibility of prejudice. U.S. v. Braswell, 501 F.3d 1147, 1150 (9th Cir. 2007).
Regarding the “miscarriage of justice, ” the Supreme Court has made clear that a fundamental miscarriage of justice exists when a Constitutional violation has resulted in the conviction of one who is actually innocent. See Murray, 477 U.S. at 495-96. Additionally, pursuant to 28 U.S.C. § 2254(b)(2), the court may dismiss plainly meritless claims regardless of whether the claim was properly exhausted in state court. See Rhines v. Weber, 544 U.S. 269, 277 (2005) (holding that a stay is inappropriate in federal court to allow claims to be raised in state court if they are subject to dismissal under § 2254(b)(2) as “plainly meritless”).
B. Claim One.
Petitioner alleges that his trial counsel was ineffective by not presenting a defense on his behalf. Other than this general assertion, he states that he “did not knowingly waive his right to effective counsel, ” and that he “did not knowingly waive his constitutional rights.” To the extent the claim is sufficiently stated, Petitioner did not raise this general claim in post-conviction proceedings. His sole claim in post-conviction proceedings related to the improper aggravation of his sentence, and Petitioner obtained full relief on that claim. Petitioner's ineffective assistance of counsel claim, as stated in his habeas petition, was not raised in the state court and is thus unexhausted. Petitioner is now precluded from returning to state court to properly exhaust his claim. See Ariz.R.Crim.P. 33.1, 33.2(a) (precluding claims not raised on appeal or in prior petitions for post-conviction relief), 33.4 (time bar). Petitioner does not argue much less demonstrate cause for his procedural default or that a miscarriage of justice will result from a denial of his claim.
C. Claim Two.
Petitioner claims that his sentence was improperly enhanced by a prior Illinois felony conviction. Petitioner presents no facts or argument in support of his claim. Additionally, Petitioner never raised this claim in state court. Thus, Petitioner's claim is not exhausted and is procedurally defaulted as he is precluded now from returning to state court and presenting the claim. See Ariz.R.Crim.P. 33.1, 33.2(a) (precluding claims not raised on appeal or in prior petitions for post-conviction relief), 33.4 (time bar). Petitioner does not argue much less demonstrate cause for his procedural default or that a miscarriage of justice will result from a denial of his claim.
As Petitioner's claims are procedurally defaulted, and Petitioner fails to assert any grounds to establish cause for his procedural default or that a miscarriage of justice will occur as a result of the denial of his claims, this Court will recommend that Petitioner's habeas petition be denied and dismissed with prejudice.
CONCLUSION
Having determined that Petitioner's claims in his habeas petition are procedurally defaulted without excuse, the Court will recommend the petition be denied and dismissed with prejudice.
IT IS THEREFORE RECOMMENDED that Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) DENIED and DISMISSED WITH PREJUDICE;
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because the dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable.
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. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Pursuant to Rule 7.2, 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 seventeen (17) pages in length. Failure timely to file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure timely to file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule 72, Federal Rules of Civil Procedure.