Opinion
CV 23-08007-PCT-JAT (ESW)
10-09-2023
Dustin D. Crouch, Petitioner, v. Ryan Thornell, et al., Respondents.
REPORT AND RECOMMENDATION
Honorable Eileen S. Willett United States Magistrate Judge
TO THE HONORABLE JAMES A. TEILBORG, SENIOR UNITED STATES DISTRICT JUDGE:
Pending before the Court is Dustin D. Crouch's (“Petitioner”) Petition for a Writ of Habeas Corpus (the “Petition”) (Doc. 1). After reviewing the parties' briefing (Docs. 1, 11, 12, 13, 14, 18), it is recommended that the Court deny habeas relief without holding an evidentiary hearing.
I. BACKGROUND
In June 2017, a jury sitting in the Superior Court of Arizona in and for Coconino County convicted Petitioner of twenty-four counts of Sexual Conduct with a Minor and one count of Sexual Exploitation of a Minor. (Doc. 11-1 at 807-10, 1019). On July 18, 2017, the trial court imposed concurrent and consecutive prison sentences totaling more than 300 years. (Doc. 11-1 at 812-36, 1019).
On July 12, 2018, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. (Id. at 1019-21). The Arizona Supreme Court denied review. (Doc. 1 at 4).
On December 31, 2018, Petitioner filed a Notice of Post-Conviction Relief (“PCR”). (Doc. 11-2 at 2-4). The trial court appointed PCR counsel, who could not find a colorable claim to raise. (Id. at 7-13). On April 30, 2020, Petitioner filed a pro se PCR Petition. (Id. at 17-45). In April 2021, the trial court denied relief. (Id. at 66-70). The trial court denied Petitioner's request to reconsider the ruling. (Id. at 72-76, 89-90). The Arizona Court of Appeals affirmed the trial court's denial of relief. (Doc. 11-3 at 15).
On April 6, 2022, Petitioner filed a second PCR Petition. (Id. at 17-39). The trial court denied the PCR Petition on June 29, 2022. (Id. at 56-62). The Arizona Court of Appeals affirmed the ruling on January 10, 2023. (Id. at 86). On August 23, 2023, the Arizona Supreme Court denied further review. (Doc. 18-1 at 2).
On January 17, 2023, Petitioner timely initiated this federal habeas proceeding. (Doc. 1). The Petition raises five claims for relief. Attached to the Petition are a Motion for an Evidentiary Hearing and Motion for Summary Judgment. (Id. at 22-37). In its Screening Order (Doc. 5), the Court ordered Respondents to answer the Petition. The Court denied the Motion for an Evidentiary Hearing and Motion for Summary Judgment without prejudice as premature. (Id. at 3).
Respondents filed an Answer (Doc. 11) on April 18, 2023. Petitioner filed a Reply (Doc. 18) on May 16, 2023. Petitioner also filed a Motion for Evidentiary Hearing (Doc. 13) and Motion for Summary Judgment (Doc. 14) that are similar to the Motions attached to the Petition. In its June 14, 2023 Order (Doc. 17), the Court construed the filings as supplements to the Petition and stated that the Court will consider the arguments made therein when resolving the Petition. For the reasons discussed below, the undersigned finds that Grounds Two and Three of the Petition are procedurally defaulted and the remaining claims are meritless.
II. GROUNDS TWO AND THREE ARE PROCEDURALLY DEFAULTED
A. Legal Standards
1. Exhaustion-of-State-Remedies Doctrine
It is well-settled that a “state prisoner must normally exhaust available state remedies before a writ of habeas corpus can be granted by the federal courts.” Duckworth v. Serrano, 454 U.S. 1, 3 (1981); see also Picard v. Connor, 404 U.S. 270, 275 (1971) (“It has been settled since Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886), that a state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for habeas corpus. ”). The rationale for the doctrine relates to the policy of federal-state comity. Picard, 404 U.S. at 275 (1971). The comity policy is designed to give a state the initial opportunity to review and correct alleged federal rights violations of its state prisoners. Id. In the U.S. Supreme Court's words, “it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation.” Darr v. Burford, 339 U.S. 200, 204 (1950); see also Reed v. Ross, 468 U.S. 1, 11 (1984) (“[W]e have long recognized that in some circumstances considerations of comity and concerns for the orderly administration of criminal justice require a federal court to forgo the exercise of its habeas corpus power.”) (citations and internal quotation marks omitted).
The exhaustion doctrine is codified at 28 U.S.C. § 2254. That statute provides that a habeas petition may not be granted unless the petitioner has (i) “exhausted” the available state court remedies; (ii) shown that there is an “absence of available State corrective process”; or (iii) shown that “circumstances exist that render such process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1).
Case law has clarified that in order to “exhaust” state court remedies, a petitioner's federal claims must have been “fully and fairly presented” in state court. Woods v. Sinclair, 764 F.3d 1109, 1129 (9th Cir. 2014). To “fully and fairly present” a federal claim, a petitioner must present both (i) the operative facts and (ii) the federal legal theory on which his or her claim is based. This test turns on whether a petitioner “explicitly alerted” a state court that he or she was making a federal constitutional claim. Galvan v. Alaska Department of Corrections, 397 F.3d 1198, 1204-05 (9th Cir. 2005). “It is not enough that all the facts necessary to support the federal claim were before the state courts or that a somewhat similar state law claim was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982) (citation omitted); see also Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), as modified by 247 F.3d 904 (9th Cir. 2001) (federal basis of a claim must be “explicit either by citing federal law or the decisions of federal courts, even if the federal basis is self-evident or the underlying claim would be decided under state law on the same considerations that would control resolution of the claim on federal grounds”).
2. Procedural Default Doctrine
If a claim was presented in state court, and the court expressly invoked a state procedural rule in denying relief, then the claim is procedurally defaulted in a federal habeas proceeding. See, e.g., Zichko v. Idaho, 247 F.3d 1015, 1021 (9th Cir. 2001). Even if a claim was not presented in state court, a claim may be procedurally defaulted in a federal habeas proceeding if the claim would now be barred in state court under the state's procedural rules. See, e.g., Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002).
Similar to the rationale of the exhaustion doctrine, the procedural default doctrine is rooted in the general principle that federal courts will not disturb state court judgments based on adequate and independent state grounds. Dretke v. Haley, 541 U.S. 386, 392 (2004). A habeas petitioner who has failed to meet the state's procedural requirements for presenting his or her federal claims has deprived the state courts of an opportunity to address those claims in the first instance. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991).
As alluded to above, a procedural default determination requires a finding that the relevant state procedural rule is an adequate and independent rule. See id. at 729-30. An adequate and independent state rule is clear, consistently applied, and well-established at the time of a petitioner's purported default. Greenway v. Schriro, 653 F.3d 790, 797-98 (9th Cir. 2011); see also Calderon v. U.S. Dist. Court (Hayes), 103 F.3d 72, 74-75 (9th Cir. 1996). An independent state rule cannot be interwoven with federal law. See Ake v. Oklahoma, 470 U.S. 68, 75 (1985). The ultimate burden of proving the adequacy of a state procedural bar is on the state. Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003).
B. Analysis of Grounds Two and Three
Petitioner's indictment alleged that all charged acts occurred in Coconino County, Arizona. (Doc. 11-1 at 4). In support of habeas relief, Petitioner asserts that some of the sexual acts for which he was convicted may have occurred outside of Coconino County or the State of Arizona. Grounds Two and Three pertain to that assertion. In Ground Two of the Petition, Petitioner asserts that his trial counsel was constitutionally ineffective for failing to “investigate when and where [the victim and Petitioner] traveled outside of Coconino County[.]” (Doc. 1 at 13) (emphasis added). Ground Three argues that that Petitioner “was charged, tried, and convicted of Sexual Conduct with a Minor that occurred outside the territorial jurisdiction of the trial court.” (Id. at 17). The Petition states that Ground Three “pertains only to the acts that occurred outside of Coconino County and/or outside the State of Arizona.” (Id.) (emphasis added).
Respondents note that in his first PCR Petition, Petitioner asserted that the trial court lacked jurisdiction to prosecute the offenses and that his trial counsel was ineffective for failing to investigate such jurisdiction. (Doc. 11 at 16-23). However, Respondents assert that Petitioner failed to fairly present Grounds Two and Three to the state courts because the claims were premised only on the allegation that some of the charged offenses may have occurred in Grand Canyon National Park, which is within Coconino County. (Id.).
In his first PCR Petition, Petitioner asserted that “[d]efense counsel was ineffective for failing to investigate and challenge the jurisdiction of the Court” and noted that Petitioner and the victim “lived on the border of the Grand Canyon National Park” and “frequently went in and out of the National Park to grocery shop, to school, practice driving etc.” (Doc. 11-2 at 32-33). Petitioner argued that “none of those facts were presented to the court or to the jury . . . . [Defense counsel was] unaware of the facts because she did not investigate the allegations, any details about where Defendant and [the victim] lived, or any of their frequent interactions within the National Park jurisdiction.” (Id. at 33).
Petitioner also stated in the PCR Petition that another “claim presented in this [PCR] petition is that Defendant was convicted of sexual conduct with a minor that occurred in the Grand Canyon National Park.” (Doc. 11-2 at 27) (emphasis added). The PCR Petition then states that Petitioner and the victim “lived minutes away from the National Park entrance” and would frequently visit Grand Canyon Village to “grocery shop, go to the bank, the library, the recreation center or the doctor's office.” (Id.) (emphasis omitted). The PCR Petition further explains that:
Because [Petitioner and the victim] were local resident[s], they were allowed to go in and out of the National Park as often and freely as they pleased. They used that freedom often to get away from the house where there was very little privacy for them to be together. . . . The relationship had to be kept secret. The many dirt roads and remote areas in the National Park provided the seclusion necessary to keep that secret hidden.(Id. at 27-28) (emphasis omitted). Petitioner contended that “According to the Federal Rules of Criminal Procedure any sexual act with a minor by an adult that occurs in Grand Canyon National Park is punishable under 18 U.S.C. Section 2243,(a).” (Id. at 31). Respondents correctly observe (Doc. 11 at 17) that the PCR Petition does not discuss any alleged travels outside of Coconino County or outside the State of Arizona.
Petitioner asserts that the ineffective assistance of counsel in Ground Two “works in congruence with” the jurisdictional claims in Grounds Three and Four.(Doc. 12 at 11). Petitioner contends that the claim in Ground Three “was actually, stated, verbatim” in Petitioner's first PCR Petition where Petitioner “mentioned ‘territorial jurisdiction' three times on page 7 of the PCR Petition. (Id. at 16) (emphasis omitted). Page 7 of the PCR Petition does not allege that any of the charged offenses occurred outside Coconino County or the State of Arizona. Instead, it asserts that “[s]ome offenses are related to areas owned by or under the exclusive jurisdiction of the Federal Government. This includes Grand Canyon National Park[.]” (Doc. 11-2 at 26). The undersigned finds that Grounds Two and Three are not fairly presented in the PCR Petition.
Ground Four asserts that the “State convicted [Petitioner] for Sexual Conduct with a Minor that occurred inside the GCNP (Grand Canyon National Park) which falls under the Special Maritime and Territorial Jurisdiction of the United States pursuant to 18 U.S.C. § 7(3).” (Doc. 1 at 18).
In disputing Respondents' argument that Grounds Two and Three are unexhausted, Petitioner cites his Reply in support of the PCR Petition. (Doc. 12 at 11, 17). Petitioner's Reply brief in support of the PCR Petition reiterates the assertion that only the federal District Court had jurisdiction over the charged offenses. Petitioner contended in the brief that his “trial should have been heard in the District Court for sexual conduct that occurred in the car, on Federal property.” (Doc. 11-2 at 61). Petitioner also recounted that the victim “reported in her forensic interview that sexual conduct in the car occurred on dirt roads that were close to the Grand Canyon or in the Grand Canyon.” (Id. at 60). Although Petitioner stated that “[t]here were many other jurisdictions in which sexual conduct in the car may have occurred,” and noted that Petitioner and the victim traveled by car to various states, the undersigned does not find that the Reply brief fairly presented Grounds Two and Three. (Id.). Further, “an issue raised for the first time in a reply brief is waived.” State v. Ruggiero, 120 P.3d 690, 695 n.2 (Ariz.Ct.App. 2005); see also State v. Lopez, 221 P.3d 1052, 1054 (Ariz.Ct.App. 2009) (rule that defendant waives claims raised for first time in reply brief applies to Rule 32 proceedings).
Petitioner also cites his motion for reconsideration filed in the trial court following denial of his PCR Petition. (Doc. 12 at 11, 18). The motion for reconsideration states that the trial court's ruling “only addresses subject matter jurisdiction regarding Grand Canyon National Park and IAC” and that “Petitioner stated throughout his [PCR] petition that jurisdiction was never established regarding sexual conduct that occurred in the car.” (Doc. 11-2 at 73). Petitioner then references the Fifth Amendment's double jeopardy clause and explains that he “is currently facing charges and extradition to the State of Arkansas for sexual conduct, involving the same victim, during the same time period, that also may have occurred in the car.” (Id. at 74-75). Petitioner contends that he “could potentially fac[e] additional charges for sexual conduct, with the same victim, that also occurred in the car, in any or all of the states mentioned [in] the Reply Brief . . . . (Id. at 75).
“In order to ‘fairly present' an issue to a state court, a [habeas] petitioner must ‘present the substance of his claim to the state courts, including a reference to a federal constitutional guarantee and a statement of facts that entitle the petitioner to relief.'” Gulbrandson v. Ryan, 738 F.3d 976, 992 (9th Cir. 2013) (quoting Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009)). The mere similarity between a claim of state and federal error is insufficient to establish exhaustion. While a petitioner is not required to recite “book and verse on the federal constitution,” Picard, 404 U.S. at 277-78 (quoting Daugherty v. Gladden, 257 F.2d 750, 758 (9th Cir. 1958)), it is not enough that all the facts necessary to support the federal claim were before the state courts or that a “somewhat similar state law claim was made.” Anderson, 459 U.S. at 6.
“[T]he exhaustion doctrine requires a habeas applicant to do more than scatter some makeshift needles in the haystack of the state court record.” Martens v. Shannon, 836 F.2d 715, 717 (1st Cir. 1988). “The ground relied upon must be presented face-up and squarely; the federal question must be plainly defined. Oblique references which hint that a theory may be lurking in the woodwork will not turn the trick.” Id. Irrespective of waiver issues, Grounds Two and Three are not fairly presented in the motion for reconsideration.
Finally, Petitioner asserts that he presented Grounds Two and Three in his Petition for Review filed in the Arizona Court of Appeals. (Doc. 12 at 11, 17). “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)). However, a petitioner generally cannot exhaust a habeas claim by circumventing a state's lower courts and going directly to the state's higher courts. See Casey v. Moore, 386 F.3d 896, 915-18 (9th Cir. 2004) (habeas claim presented by petitioner to state supreme court was unexhausted because the petitioner did not fairly present the claim to the state's court of appeals); O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“Because the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts, [the Supreme Court has concluded] that state 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.”). Therefore, even if Petitioner did fairly present Grounds Two and Three in his Petition for Review filed in the Arizona Court of Appeals, Petitioner failed to exhaust the claim as he did not fairly present them to the trial court.
The undersigned finds that Respondents correctly assert (Doc. 11 at 16-25) that Grounds Two and Three are unexhausted. If Petitioner returned to state court and presented Grounds Two and Three in a PCR Petition, the PCR Petition would be untimely and successive under adequate and independent state procedural rules. See Ariz. R. Crim. P. 32.2 and 32.4. A state post-conviction action is futile where it is time-barred. See Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002); Moreno v. Gonzalez, 116 F.3d 409, 410 (9th Cir. 1997). The undersigned finds that Grounds Two and Three are procedurally defaulted. See Beaty, 303 F.3d at 987 (a claim is procedurally defaulted “if the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the requirement would now find the claims procedurally barred”) (quoting Coleman, 501 U.S. at 735 n.1).
C. Petitioner's Procedural Defaults are Not Excused
A petitioner may overcome a procedural default by proving one of two exceptions. In the first exception, the petitioner must show cause for the default and actual prejudice as a result of the alleged violation of federal law. Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014). To demonstrate “cause,” a petitioner must show that some objective factor external to the petitioner impeded his or her efforts to comply with the state's procedural rules. See Murray v. Carrier, 477 U.S. 478, 488 (1986); Robinson v. Ignacio, 360 F.3d 1044, 1052 (9th Cir. 2004). To demonstrate “prejudice,” the petitioner must show that the alleged constitutional violation “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982); see also Carrier, 477 U.S. at 494 (“Such a showing of pervasive actual prejudice can hardly be thought to constitute anything other than a showing that the prisoner was denied ‘fundamental fairness' at trial.”).
In the second exception, a petitioner must show that the failure to consider the federal claim will result in a fundamental miscarriage of justice. Hurles, 752 F.3d at 780. This exception is rare and only applied in extraordinary cases. Wood v. Ryan, 693 F.3d 1104, 1118 (9th Cir. 2012) (quoting Schlup v. Delo, 513 U.S. 298, 321 (1995)). The exception occurs where a “constitutional violation has probably resulted in the conviction of one who is actually innocent of the offense that is the subject of the barred claim.” Wood, 693 F.3d at 1117 (quoting Schlup, 513 U.S. at 327). The miscarriage of justice exception is also referred to as the “Schlup gateway.” Griffin v. Johnson, 350 F.3d 956, 961 (9th Cir. 2003).
Petitioner argues that all of his habeas claims should be reviewed on the merits and does not advance an argument that his procedural defaults should be excused. (Doc. 12). The undersigned finds that Petitioner has failed to establish that his procedural defaults are “due to an external objective factor that cannot fairly be attributed to him.” Smith v. Baldwin, 510 F.3d 1127, 1146 (9th Cir. 2007) (internal quotation marks and citation omitted). Petitioner has therefore failed to show cause for his procedural defaults. Where a petitioner fails to establish cause, the Court need not consider whether the petitioner has shown actual prejudice resulting from the alleged constitutional violations. Smith v. Murray, 477 U.S. 527, 533 (1986). Accordingly, the undersigned finds that Petitioner has not satisfied the “cause and prejudice” exception to excuse his procedural defaults.
To the extent that Petitioner may assert the Schlup gateway, Petitioner has not proffered any new reliable evidence to support actual innocence. The undersigned recommends that the Court find that Petitioner cannot pass through the Schlup gateway to excuse his procedural defaults. See Smith v. Hall, 466 Fed.Appx. 608, 609 (9th Cir. 2012) (explaining that to pass through the Schlup gateway, a petitioner must first satisfy the “threshold requirement of coming forward with ‘new reliable evidence'”); Griffin v. Johnson, 350 F.3d 956, 961 (9th Cir. 2003) (“To meet [the Schlup gateway standard], [petitioner] must first furnish ‘new reliable evidence . . . that was not presented at trial.'”) (quoting Schlup, 513 U.S. at 324).
For the above reasons, the undersigned recommends that the Court dismiss Grounds Two and Three with prejudice.
III. MERITS REVIEW OF GROUNDS ONE, FOUR, AND FIVE
Respondents concede that Grounds One, Four, and Five have been exhausted and may be reviewed on the merits. (Doc. 11 at 27-40).
A. Reviewing the Merits of a Habeas Claim
In reviewing a habeas petitioner's claims, the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) requires federal courts to defer to the last reasoned state court decision. Woods v. Sinclair, 764 F.3d 1109, 1120 (9th Cir. 2014); Henry v. Ryan, 720 F.3d 1073, 1078 (9th Cir. 2013). To be entitled to relief, a state prisoner must show that the state court's adjudication of his or her claims either:
1. resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
2. resulted in a decision that 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)(1), (2); see also, e.g., Woods, 764 F.3d at 1120; Parker v. Matthews, 132 S.Ct. 2148, 2151 (2010); Harrington v. Richter, 562 U.S. 86, 99 (2011).
As to relief under 28 U.S.C. § 2254(d)(1), “clearly established federal law” refers to the holdings of the U.S. Supreme Court's decisions applicable at the time of the relevant state court decision. Carey v. Musladin, 549 U.S. 70, 74 (2006); Thaler v. Haynes, 559 U.S. 43, 47 (2010). A state court decision is “contrary to” such clearly established federal law if the state court (i) “applies a rule that contradicts the governing law set forth in [U.S. Supreme Court] cases” or (ii) “confronts a set of facts that are materially indistinguishable from a decision of the [U.S. Supreme Court] and nevertheless arrives at a result different from [U.S. Supreme Court] precedent.” Price v. Vincent, 538 U.S. 634, 640 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). “The ‘unreasonable application' clause of § 2254(d)(1) applies when the ‘state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.'” Hollandv. Jackson, 542 U.S. 649, 652 (2004) (quoting Williams, 529 U.S. at 413).
As to relief under 28 U.S.C. § 2254(d)(2), factual determinations by state courts are presumed correct unless the petitioner can show by clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1); see also Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (“Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding, § 2254(d)(2)[.]”).
B. Analysis of Ground One
As the Arizona Court of Appeals recounted in its decision affirming Petitioner's convictions and sentences, Petitioner told “police that he had sex with Victim ‘at least' twice per month, and on average three times per month, during the months specified by the charges.” (Doc. 11-1 at 1020). The indictment filed on June 9, 2016 charged Petitioner with three counts of Sexual Conduct with a Minor for each of the thirteen months from April 2015 through April 2016, for a total of 39 counts of Sexual Conduct with a Minor. (Id. at 4-12). The indictment also charged a fortieth count alleging that on or between April 12, 2015 and April 30, 2016, Petitioner committed Sexual Exploitation of a Minor. (Id. at 12).
In Ground One of the Petition, Petitioner asserts that the “indictment violated [his] constitutional rights to notice, jury unanimity [sic], and protection against double jeopardy” under the Fifth, Sixth, and Fourteenth Amendments. (Doc. 1 at 7). Petitioner states that the Arizona Court of Appeals “correctly construed the issue in [his] case to be whether the indictment was legally sufficient or violated my right to notice.” (Id. at 12).
In their Answer, Respondents argue that to the extent that Ground One alleges subclaims, such as a jury unanimity claim or a double jeopardy claim, such subclaims are procedurally defaulted. (Doc. 11 at 11-16). In his Reply (Doc. 12 at 4), Petitioner clarifies that Ground One is raising only the claim presented on direct appeal. Petitioner states that he “requests this Court disregard the states [sic] notion about ‘subclaims' and disregard the procedural bars associated with those claims.” (Id.). Accordingly, this Report and Recommendation does not detail Respondents' procedurally default arguments concerning potential unexhausted subclaims in Ground One. To the extent Petitioner may assert that Ground One presents subclaims not addressed in this Report and Recommendation, the undersigned recommends that the Court find the subclaims procedurally defaulted for the reasons set forth in Respondents' Answer (Doc. 11 at 11-16).
In holding that the trial court did not abuse its discretion in refusing to dismiss the indictment as vague and duplicitous, the Arizona Court of Appeals explained:
¶ 6 An indictment must be “sufficiently definite to inform the defendant of a charged offense.” Ariz. R. Crim. P. (“Rule”) 13.1(a). It also must cite the statutes that the state accuses the defendant of violating. Rule 13.1(d). “An indictment is legally sufficient if it informs the defendant of the essential elements of the charge, is definite enough to permit the defendant to prepare a defense against the charge, and affords the defendant protection from subsequent prosecution for the same offense.” State v. Far W. Water & Sewer Inc., 224 Ariz. 173, 187, ¶ 36 (App. 2010) (citation omitted). An indictment that tracks the language of the relevant statute generally provides sufficient notice. State v. Self, 135 Ariz. 374, 380 (App. 1983). “In considering whether an indictment provides sufficient notice, the indictment ‘must be read in the light of the facts known by both parties.'” Far W. Water & Sewer, 224 Ariz. at 187, ¶ 36.
¶ 7 Here, [Petitioner] contends that he could not discern between the charged acts because the indictment fails to
specify the specific dates, locations, and nature of each sexual act. But the indictment provided the notice required by Rule 13.1: it listed the proscribed acts using statutory citations and statutory language. Further, the charges tracked [Petitioner's] own admission, and the state complied with its pretrial disclosure obligations. We discern no abuse of discretion in the superior court's conclusion that the indictment provided sufficient notice.(Doc. 11-1 at 1019-20). The Arizona Court of Appeals also stated that assuming that the indictment included duplicitous charges, any such error was properly remedied. The decision explains:
¶ 8 A duplicitous charge occurs when the indictment refers to one criminal act, but the state introduces multiple criminal acts to prove the charge. State v. Klokic, 219 Ariz. 241, 244, ¶ 12 (App. 2008). In the case of a duplicitous charge, the superior court is required to take one of two remedial measures: the court must either require the state to elect the act that constitutes the crime, or the court must instruct the jury that they must agree unanimously on the specific act that constitutes the crime. Id. at ¶ 14.
¶ 9 Here, at [Petitioner's] request, the superior court instructed the jury that it was obligated to “agree unanimously on the specific act that constitutes the crime before defendant can be found guilty on that count.” Accordingly, any concern with duplicitous charges was appropriately remedied.(Id. at 1020).
The Sixth Amendment guarantees criminal defendants the right “to be informed of the nature and cause of the accusation.” U.S. Const. amend. VI. “A person's right to reasonable notice of a charge against him, and an opportunity to be heard in his defense-a right to his day in court-are basic in our system of jurisprudence . . . .” In re Oliver, 333 U.S. 257, 273 (1948) (footnote omitted); see also Cole v. Arkansas, 333 U.S. 196, 201 (1948) (“No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.”); Gautt v. Lewis, 489 F.3d 993, 1003- 05 (9th Cir. 2007) (recognizing, for purposes of AEDPA, “it is ‘clearly established' that a criminal defendant has a right, guaranteed by the Sixth Amendment, and applied against the states through the Fourteenth Amendment, to be informed of any charges against him, and that a charging document, such as an information, is the means by which such notice is provided”).
In support of his argument that he was “indicted for a generic ‘pattern' of sexual conduct rather than (39) specific identifiable incidents,” Petitioner cites the Sixth Circuit decision Valentine v. Konteh, 395 F.3d 626 (6th Cir. 2005). (Doc. 1 at 25). First, the Supreme Court has “repeatedly pointed out [that] circuit precedent does not constitute clearly established Federal law, as determined by the Supreme Court. . . . Nor, of course, do state-court decisions, treatises, or law review articles.” Kernan v. Cuero, 138 S.Ct. 4, 9 (2017) (internal quotation marks and citation omitted).
Further, Valentine is distinguishable from this case. In Valentine, the Sixth Circuit held that a state court unreasonably applied Supreme Court precedent when it sustained an indictment charging the defendant with 20 identically worded counts of child rape and 20 identically worded counts of felonious sexual penetration alleged to have occurred over a period of 10 months. The Sixth Circuit explained that the
problem in this case is not the fact that the prosecution did not provide the defendant with exact times and places. If there had been singular counts of each offense, the lack of particularity would not have presented the same problem. Instead, the problem is that within each set of 20 counts, there are absolutely no distinctions made.Valentine, 395 F.3d at 632. The Sixth Circuit rejected the defendant's claim that the lack of specific dates and times violated his right to adequate notice. Id. (“This Court and numerous others have found that fairly large time windows in the context of child abuse prosecutions are not in conflict with constitutional notice requirements.”).
Here, as the Arizona Court of Appeals noted, each of the 39 counts of Sexual Conduct with a Minor “mirrored the language of the statute criminalizing sexual conduct with a minor[.]”(Doc. 11-1 at 1019). As discussed, the indictment charged Petitioner with three counts of Sexual Conduct with a Minor for each of the thirteen months from April 2015 through April 2016. Each of those 39 counts alleged that the charged act was committed “on an occasion separate” from the other counts. (Id. at 4-12). The Sexual Exploitation of a Minor count was alleged to have occurred between April 12, 2015 and April 30, 2016. (Id. at 12). The indictment charged that all counts occurred in Coconino County, Arizona. (Id. at 4).
Ariz. Rev. Stat. § 13-1405(A) provides that “A person commits sexual conduct with a minor by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person who is under eighteen years of age.” Ariz. Rev. Stat. § 13-1405(B) provides that sexual conduct with a minor is a class 2 felony if the minor was (i) under fifteen years of age or (ii) the minor is at least fifteen years of age but the offender is or was in a position of trust. Counts 1-36 of Petitioner's indictment each allege that the victim was under fifteen years of age. (Id. at 4-11). Counts 37-39 each allege that the victim was at least fifteen years old but under the age of eighteen years and Petitioner was the victim's stepparent. (Id. at 11-12).
An indictment “need only ‘contain[ ] the elements of the offense charged and fairly inform[ ] a defendant of the charge against which he must defend.'” LaMere v. Risley, 827 F.2d 622, 624 (9th Cir. 1987) (alterations in original; emphasis omitted) (quoting Hamling v. United States, 418 U.S. 87, 117 (1974)).
“The United States Supreme Court has not determined that [a charging document] in a child sexual abuse case is constitutionally deficient for failure to provide specific dates of incidents.” Leonard v. Perez, No. 2:12-CV-02161-JKS, 2015 WL 5255357, at *7 (E.D. Cal. Sept. 9, 2015); see also Brodit v. Cambra, 350 F.3d 985, 988-89 (9th Cir. 2003) (finding that state court holding that due process was not violated by the absence of precise dates in charging document was not contrary to nor an unreasonable application of clearly established law); Edwards v. Mazzuca, No. Civ. 2290(RJS)(KNF), 2007 WL 2994449, at *5 (S.D.N.Y. Oct. 15, 2007) (explaining in a habeas corpus case that an indictment met constitutional standards even though it “specified a period of time- rather than a specific date-in which defendant committed the acts” of sexual abuse against a child) (emphasis in original).
Where none of the Supreme Court cases “confront the specific question presented by [a] case, the state court's decision could not be ‘contrary to' any holding from [the Supreme Court].” Woods v. Donald, 575 U.S. 312, 317 (2015) (internal quotation marks and citation omitted). “[I]f the circumstances of a case are only ‘similar to' [Supreme Court] precedents, then the state court's decision is not ‘contrary to' the holdings in those cases.” Id.; Wright v. Van Patten, 552 U.S. 120, 126 (2008) (per curiam) (denying habeas relief where Supreme Court cases provided “no clear answer to the question presented”) (citations omitted). “[I]t is not ‘an unreasonable application of clearly established Federal law' for a state court to decline to apply a specific legal rule that has not been squarely established by [the Supreme] Court.” Knowles, 556 U.S. at 122; see also Moses v. Payne, 555 F.3d 742, 761-62 (9th Cir. 2009) (“Ultimately, however, for purposes of our AEDPA review, it suffices to determine that the constitutionality of such testimony is ‘an open question in [the Supreme Court's] jurisprudence.'”) (citing Musladin, 549 U.S. at 76).
The undersigned finds that the state courts' rejection of Petitioner's claim in Ground One was not contrary to, or an unreasonable application of clearly established federal law, as determined by Supreme Court, or based on an unreasonable determination of the facts. It is recommended that the Court deny Ground One.
C. Analysis of Ground Four
Petitioner asserts in Ground Four that the “State convicted me for Sexual Conduct with a Minor that occurred inside the GCNP (Grand Canyon National Park) which falls under the Special Maritime and Territorial Jurisdiction of the United States pursuant to 18 U.S.C. § 7(3).” (Doc. 1 at 18). Petitioner argues that the “conviction was obtained contrary to federal law 18 U.S.C. § 3231, 18 U.S.C. § 2243(g), and Article VI, section 2 of the United States Constitution.” (Id.). Petitioner presented this claim in his first PCR proceeding. (Doc. 11-2 at 26). The trial court denied relief, which the Arizona Court of Appeals summarily affirmed.
“Although AEDPA generally requires federal courts to review one state decision, if the last reasoned decision adopts or substantially incorporates the reasoning from a previous state court decision, [courts] may consider both decisions to fully ascertain the reasoning of the last decision.” Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (internal quotation marks and citation omitted); see also Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (“Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.”). The undersigned therefore reviews the trial court's ruling in determining the merits of Ground Four. See, e.g., Lewis v. Lewis, 321 F.3d 824, 829 (9th Cir. 2003) (“Because [the state appellate court's] decision affirmed the trial court and adopted one of the reasons cited by the trial court, . . . our analysis will necessarily include discussion of the trial court's decision as well.”).
As the trial court correctly recounted in its decision denying the PCR Petition, Ariz. Rev. Stat. § 37-620 provides that the State of Arizona has concurrent jurisdiction over crimes committed in Grand Canyon National Park. (Doc. 11-2 at 67-68). A decision in another District of Arizona case summarized the jurisdictional history of the Grand Canyon National Park as follows:
Grand Canyon National Park, a federal enclave, was “reserved” as a federal enclave in 1917. Prior to February 1, 1940, it was presumed that the United States accepted criminal jurisdiction over federal lands within state boundaries whenever offered by a state because jurisdiction was deemed a benefit to the sovereign. See Fort Leavenworth R.R. Co. v. Lowe, 114 U.S. 525, 528, 5 S.Ct. 995, 997, 29 L.Ed. 264 (1885). However, this presumption was statutorily reversed by the enactment of 40 U.S.C. § 255, now codified at § 3112. Adams v. United States, 319 U.S. 312, 313, 63 S.Ct. 1122, 1122-23, 87 L.Ed. 1421 (1943) (“The Act provides further: ‘Unless and until the United States has accepted jurisdiction over lands hereafter to be acquired as aforesaid, it shall be conclusively presumed that no such jurisdiction has been accepted.'”).
In 1975 Congress enacted 16 U.S.C. § 221, the Grand Canyon National Park Enlargement Act, which expanded the boundaries of the Park.
In 1976 the Arizona state legislature enacted Arizona Revised Statutes Annotated § 37-620(D)(1)(g), which granted concurrent criminal jurisdiction of all lands within Grand Canyon National Park to the federal government.
On January 13, 1977 the Western Regional Director for the National Park Service wrote to Arizona Governor Castro formally requesting that the State of Arizona grant concurrent criminal jurisdiction to the federal government for those lands located in Grand Canyon National Park. On October 6, 1977, Governor Castro wrote to the Secretary of the Interior granting the request.United States v. Goodwin, 927 F.Supp.2d 807, 810 (D. Ariz. 2013) (footnote omitted).
The undersigned finds that the state courts' rejection of Petitioner's claim in Ground Four was not contrary to, or an unreasonable application of clearly established federal law, as determined by Supreme Court, or based on an unreasonable determination of the facts. It is recommended that the Court deny Ground Four.
D. Analysis of Ground Five
In Petitioner's final ground for habeas relief, Petitioner asserts that the “330 year sentence imposed in this case is so grossly disproportionate to the specific facts and circumstances of the case that it violates the 8th Amendments [sic] prohibition against cruel and unusual punishment.” (Doc. 1 at 19). Petitioner presented the claim in his second PCR Petition. (Doc. 11-3 at 21). The Arizona Court of Appeals summarily affirmed the trial court's denial of the claim. (Id. at 56-61, 86).
“The Eighth Amendment, which forbids cruel and unusual punishments, contains a narrow proportionality principle that applies to noncapital sentences.” Ewing v. California, 538 U.S. 11, 20 (2003) (internal quotation marks and citation omitted). But “[t]he Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are ‘grossly disproportionate to the crime.'” Ewing, 538 U.S. at 23; see also Lockyer v. Andrade, 538 U.S. 63, 72 (2003).
The Supreme Court has acknowledged that it has “not established a clear or consistent path for courts to follow.” Andrade, 538 U.S. at 72. For purposes of federal habeas corpus review, the gross disproportionality principle is “the only relevant clearly established law amenable to the ‘contrary to' or ‘unreasonable application of framework” under 28 U.S.C. § 2254(d)(1). Id. at 73 (state court decision affirming two consecutive terms of 25 years to life in prison for third “strike” conviction was not contrary to, or an unreasonable application of, the gross disproportionality principle set forth in prior Supreme Court decisions). The Supreme Court explained that “the precise contours of [the gross disproportionality principle] are unclear, applicable only in the ‘exceedingly rare' and ‘extreme' case.” Id. “Reviewing courts, of course, should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals.” Solem v. Helm, 463 U.S. 277, 290 (1983) (citations omitted).
When analyzing an Eighth Amendment proportionality challenge, a court determines whether a “comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.” United States v. Bland, 961 F.2d 123, 129 (9th Cir. 1992) (citing Harmelin v. Michigan, 501 U.S. 957, 1005 (1991)) (finding that sentence of life imprisonment without possibility of parole did not raise inference of disproportionality when imposed on a felon in possession of a firearm); see also Harris v. Wright, 93 F.3d 581, 583-85 (9th Cir. 1996) (holding that a mandatory sentence of life imprisonment without possibility of parole did not raise inference of disproportionality when imposed on convicted murderer). A court generally will not overturn a sentence on Eighth Amendment grounds provided it does not exceed statutory limits. United States v. Zavala-Serra, 853 F.2d 1512, 1518 (9th Cir. 1988).
In its decision, the trial court noted that 22 of the convictions for Sexual Conduct with a Minor constituted a dangerous crime against children and are subject to mandatory consecutive terms pursuant to Ariz. Rev. Stat. § 13-705.(Doc. 11-3 at 60). The trial court recounted that Petitioner's 15-year prison terms on each of those counts was more than the minimum, but less than the presumptive sentence. (Id.). Petitioner's five-year prison term on the Sexual Exploitation of a Minor count runs consecutively to those sentences. (Id.). The sentences on the remaining convictions run concurrently with the other sentences. (Id.). The trial court concluded that the fact that Petitioner's sentences total more than 300 years “does not change the propriety of the individual sentences.” (Id. at 61).
Ariz. Rev. Stat. § 13-705(P) provides that the “sentence imposed on a person for Baja any other dangerous crime against children in the first or second degree shall be consecutive to any other sentence imposed on the person at any time, including sexual abuse of the same victim.”
Petitioner's sentences do not lead to the inference of gross disproportionality. The Court does not “sit as a superlegislature” to “second-guess” a state's “difficult policy choices that underlie any criminal sentencing scheme.” Ewing, 538 U.S. at 28; see also Andrade, 538 U.S. at 76 (where “the governing legal principle gives legislatures broad discretion to fashion a sentence that fits within the scope of the proportionality principle-the precise contours of which are unclear” it is not objectively unreasonable for a state court to conclude these contours permit affirming a sentence) (internal quotation marks and citation omitted). Further, “[t]here is no clearly established law from the Supreme Court on whether Eighth Amendment sentence proportionality must be analyzed on a cumulative or individual basis when a defendant is sentenced on multiple offenses.” Patsalis v. Shinn, 47 F.4th 1092, 1101 (9th Cir. 2022).
The undersigned finds that the state courts' rejection of Petitioner's claim in Ground Five was not contrary to, or an unreasonable application of clearly established federal law, as determined by Supreme Court, or based on an unreasonable determination of the facts. The undersigned recommends that the Court deny Ground Five.
IV. PETITIONER'S REQUEST FOR AN EVIDENTIARY HEARING
Petitioner requests an evidentiary hearing. (Doc. 1 at 30; Doc. 13). AEDPA imposes “an express limitation on the power of a federal court to grant an evidentiary hearing and [has] reduced considerably the degree of the district court's discretion.” Baja v. Ducharme, 187 F.3d 1075, 1078 (9th Cir. 1999) (internal quotation marks and citation omitted). 28 U.S.C. § 2254(e)(2) provides that if a habeas petitioner “has failed to develop the factual basis of a claim in State court proceedings,” no evidentiary hearing on the claim will be held in federal court unless the petitioner shows that:
(A) the claim relies on:
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense.28 U.S.C. § 2254(e)(2).
Case law has clarified that review under Section 2254(d) is limited to the record that was before the state court that adjudicated the claim on the merits. Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (holding that “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits”); Gulbrandson v. Ryan, 738 F.3d 976, 993 n.6 (9th Cir. 2013) (stating that Pinholster and the statutory text make clear that limitation on evidentiary hearings applies to Section 2254(d)(2) claims as well). In Gulbrandson, the Ninth Circuit Court of Appeals held that a U.S. District Court did not abuse its discretion in denying a habeas petitioner's request for an evidentiary hearing regarding the petitioner's ineffective assistance of counsel claims. The Court explained that “the state court's rejections of these claims were neither contrary to, nor involved unreasonable applications, of Strickland. Thus, Pinholster bars a habeas court from any further factual development on these claims.” Gulbrandson, 738 F.3d at 994; see also Stokley v. Ryan, 659 F.3d 802, 807 (9th Cir. 2011) (finding that a habeas petitioner was not entitled to an evidentiary hearing as the petitioner failed to present a colorable ineffective assistance of counsel claim). Further, “if the record refutes the [habeas] applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (a hearing is not required if the allegations would not entitle the petitioner to relief under Section 2254(d)); Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998) (“[A]n evidentiary hearing is not required on issues that can be resolved by reference to the state court record.”) (emphasis in original).
The undersigned finds that the record is adequately developed. It is recommended that the Court deny Petitioner's request for an evidentiary hearing. See Roberts v. Marshall, 627 F.3d 768, 773 (9th Cir. 2010) (finding “a district court is not obligated to hold evidentiary hearings to further develop the factual record” when the record is “amply developed” and explaining that “[d]istrict courts have limited resources (especially time), and to require them to conduct further evidentiary hearings when there is already sufficient evidence in the record to make the relevant determination is needlessly wasteful”).
V. CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that the Court (i) dismiss with prejudice Grounds Two and Three of the Petition (Doc. 1) and (ii) deny Grounds One, Four, and Five.
IT IS FURTHER RECOMMENDED that the Court deny Petitioner's request for an evidentiary hearing.
IT IS FURTHER RECOMMENDED that a certificate of appealability and leave to proceed in forma pauperis on appeal be denied because dismissal of two claims in the Petition is justified by a plain procedural barand Petitioner has not made a substantial showing of the denial of a constitutional right in his remaining claims for relief.
The undersigned finds that jurists of reason would not find it debatable whether the Court was correct in its procedural ruling “When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a [Certificate of Appealability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473 484 (2000).
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) 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 Report & Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.