Opinion
CV-20-00371-TUC-RCC (JR)
09-16-2022
Floyd Lewis Foster, Jr., Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
HONORABLE JACQUELINE M. RATEAU, UNITED STATES MAGISTRATE JUDGE
Petitioner Floyd Lewis Foster, Jr. (“Petitioner”), confined in the Arizona State Prison Complex-Cibola Unit in Yuma, Arizona, filed a Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (“Petition”). (Doc. 1.) Pursuant to Local Rule 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter was referred to Magistrate Judge Jacqueline Rateau for Report and Recommendation. (Doc. 10.) The Petition is fully briefed. (Doc. 14, 15.)
As more fully set forth below, this Court finds that Claim 1(A) alleged in Ground One is moot; the claim alleged in Ground Two and Claims 3(B) and 3(C) alleged in Ground Three are non-cognizable on habeas review; and Claims 1(B) through 1(D) alleged in Ground One, Ground Two and the claims alleged in Ground Three are procedurally defaulted without excuse and barred from habeas review. Thus, the undersigned recommends that the district court, after an independent review of the record, dismiss the Petition.
(This finding is in the alternative as this Court first finds that Ground Two is non-cognizable on habeas review, see pp. 7-9, infra)
(This finding is in the alternative as this Court first finds that Claims 3(B) and 3(C) alleged in Ground Three are non-cognizable on habeas review, see pp. 9-10, infra)
Factual and Procedural Background
Unless otherwise indicated, all factual references are taken from the exhibits attached to the Respondent's Answer to Amended Petition for Writ of Habeas Corpus. (Doc. 18.)
Petitioner's Conviction and Sentencing
The Arizona Court of Appeals recited the facts as follows:
Upon searching a backpack [Petitioner] was wearing, police discovered a handgun, a vehicle lock pick set, a glass methamphetamine pipe with residue, over forty grams of methamphetamine, and over ten grams of heroin. A search of a cell phone found in [Petitioner's] pocket revealed numerous text messages regarding the sale of drugs and vehicle theft, some of them addressed to “Floyd.”
The state charged [Petitioner] with possession of a dangerous drug for sale, possession of a narcotic drug for sale, possession of drug paraphernalia, possession of burglary tools, and possession of a deadly weapon by a prohibited possessor. After a five-day trial, a jury convicted [Petitioner] on all five counts. The jury also found the state had proven beyond a reasonable doubt two aggravating factors, namely that [Petitioner] “committed the offense(s) in consideration for receipt of or in expectation of receipt of anything of pecuniary gain” and “possessed a deadly weapon during the commission of the offense(s).”
On habeas review the facts stated by the appellate court are presumed correct. See 28 U.S.C. § 2254(e)(1); Purkett v. Elem, 514 U.S. 765,769 (1995) (per curiam).
(Doc. 14-1 at 4 ¶¶ 2-3.) On April 21, 2015, Petitioner was sentenced to concurrent prison terms totaling 15.75 years. (Doc. 14-1 at 18-23.)
Direct Appeal Attempt
On September 15, 2015, Petitioner filed a pro per delayed notice of appeal. (Doc. 14-1 at 25.) The Arizona Court of Appeals gave Petitioner 10 days to show why the appeal should not be dismissed as untimely. Id. at 28. That order was sent to Petitioner's trial counsel but not to Petitioner. Id. After receiving no response, the court of appeals dismissed Petitioner's delayed appeal on October 7, 2015. Id. at 31, 34.
Post-Conviction Relief Proceedings
On June 20, 2016, Petitioner, proceeding pro se, filed a notice of post-conviction relief (“PCR”). Id. at 39-41. In his PCR notice, Petitioner stated he had only then-recently learned that his trial counsel did not file a notice of appeal following his sentencing and that trial counsel did not respond to the court of appeals' order to show cause why his pro per notice of appeal should not be dismissed. Id. at 41. The PCR court appointed Petitioner counsel and later, at Petitioner's request, reassigned his PCR proceeding to an attorney representing him in a separate matter. Id. at 51-66. Petitioner's subsequent PCR petition alleged that his trial counsel was ineffective for failing to file a notice of appeal following his sentencing. Id. at 68-86. The state did not object to Petitioner's request for leave to file a delayed notice of appeal pursuant to Ariz. R. Crim. P. 32.1(f). (Doc. 14-2 at 3-6.)
On May 16, 2017, Petitioner filed an “Addendum to Petition for Post-Conviction Relief: Exhibit C” containing affidavits from Petitioner's father, mother, and son. Id. at 816. The PRC court found the addendum made “new factual claims not previously argued” in Petitioner's PCR petition and ordered Petitioner to provide an additional brief. (Doc. 14 2 at 16.) Petitioner's supplemental brief explained that he did not intend to raise any additional issues, and the affidavits were “simply to corroborate” Petitioner's assertion that his trial counsel promised to file a notice of appeal. Id. at 20-21. The state conceded that Petitioner should be permitted to file a delayed notice of appeal and, on June 20, 2017, the PCR court granted Petitioner's PCR petition finding that he was entitled to file a delayed appeal. Id. at 23-28.
On June 12, 2017, Petitioner filed three pro per motions titled Defendant's Motion to Extend Filing Date of Additional Briefing as Ordered by the Court; Defendant's Objection to Restoration of Right to Appeal as Resolution of Pending Rule 32 Petition; and Defendant's Request for Permission to Proceed in Propia Persona in Rule 32 Proceedings. Id. at 30-56. The state responded to Petitioner's Objection to Restoration of Right to Appeal as Resolution of Pending Rule 32 Petition. Id. at 58-59.
On July 7, 2017, the PCR court addressed Petitioner's pro per motions explaining that it had not received his motions when it granted Petitioner's PCR petition on June 20th. (Doc. 14-3 at 3-5.) The PCR court denied Petitioner's motions to extend the filing date for additional briefing and for rehearing but granted Petitioner's motion to proceed in propria person and granted him leave to file a supplemental PCR petition raising additional claims not previously ruled on by the court. Id. at 4.
On November 5, 2018, Petitioner filed a pro per supplemental PCR petition. (Doc. 14-2 at 7-24.) On November 16, 2018, with the PCR court's permission, Petitioner filed an addition to his supplemental PCR petition alleging that his trial counsel was ineffective for failing to: (1) convey to the trial court reports from Petitioner's son and mother that they had overheard two police officers “coordinating their stories” prior to testifying (Doc. 143 at 10, 14-18); (2) call Petitioner's father to testify that the cell phone used as evidence against Petitioner “was a community/work telephone used by many people” (Id. at 11, 20); and (3) object to a juror who worked at Pima County Adult Probation Services (Doc. 14-3 at 32-34.) On February 14, 2019, after a full briefing, Petitioner's supplemental PCR petition was denied. Id. at 42-52. (Doc. 14-4 at 4-13.) Petitioner's subsequent petition for review in the court of appeals was denied. (Doc. 14-4 at 16-29.) Petitioner did not appeal the court of appeals' denial of his petition for review. Id. at 31.
Delayed Direct Appeal
In his delayed direct appeal dated September 10, 2018, Petitioner raised three issues: (1) whether the trial court erred by denying his motion for a mistrial based on alleged prosecutorial misconduct during closing arguments; (2) whether the trial court erred by allowing the State to introduce evidence of a syringe found in Petitioner's holding cell; and (3) whether the trial court improperly instructed the jury on the aggravating factor of possession of a firearm. Id. at 39, 61. The State filed an answering brief and Petitioner replied. Id. at 65-130. On June 10, 2019, the court of appeals affirmed Petitioner's convictions and sentences. (Doc. 14-1 at 3-11.) Petitioner filed a petition for review to the Arizona Supreme Court, which was denied on November 11, 2019. (Doc. 14-4 at 132-142.)
Instant Habeas Proceeding
Petitioner timely filed the instant Petition on August 28, 2020, raising three grounds for relief:
See Jimenez v. Quarterman, 555 U.S. 113, 121 (2009) (where state court allows defendant to file delayed appeal, and defendant has not yet sought habeas relief, the date when the judgment becomes final for the purposes of 28 U.S.C. § 2244(d)(1)(A) “must reflect the conclusion of the out-of-time direct appeal, or the expiration of the time for seeking review of that appeal”).
In Ground One, Petitioner asserts that his trial counsel provided ineffective assistance by failing to: file a notice of appeal (“Claim 1(A)”); call a key witness to testify at trial (“Claim 1(B)”); inform the court of “misbehavior by police during trial” (“Claim 1(C)”); and object “to employee of Pima County Adult Probation sitting on the jury” (“Claim 1(D)”). (Doc. 1 at 6.)
In Ground Two, Petitioner asserts that he was deprived of Sixth Amendment right to due process when the trial court failed to hold an evidentiary hearing “upon presentation of affidavits from trial observers.” Id. at 7. He argues that his failure to identify the “misbehaving” police officers by name is an insufficient reason to deny him an evidentiary hearing and PCR relief. Id. He urges that the PCR court had a duty to address the issues presented in his Rule 32 petition “once [they were] presented.” Id.
In Ground Three, Petitioner argues that the trial court denied his due process rights under the Sixth Amendment when it: denied his motion for a mistrial based upon the prosecutor's remarks during closing arguments (“Claim 3(A)”); allowed the State to introduce evidence of a syringe (“Claim 3(B)”); and instructed the jury on possession of a firearm during the commission of an offense as an aggravating factor (“Claim 3(C)”). (Doc. 1 at 8.)
Claim 1(A) in Ground One is Moot
Mootness is a threshold jurisdictional issue. St. Paul Fire & Marne Ins. Co. v. Barry, 438 U.S. 531, 537 (1978). “Federal courts lack jurisdiction to decide moot cases because their constitutional authority extends only to actual cases or controversies.” Sample v. Johnson, 771 F.2d 1335, 1338 (9th Cir. 1985). “Because Article III restricts federal court jurisdiction to actual cases and controversies, federal courts may not ‘give opinions upon moot questions or abstract propositions.'” Pinson v. Othon, No. CV-20-00169-TUC-RM, 2020 WL 7404587, at *2 (D. Ariz. Dec. 17, 2020) (quoting Calderon v. Moore, 518 U.S. 149, 150 (1996)).
In Claim 1(A), Petitioner alleges that his trial counsel was ineffective for failing to file a notice of appeal following his sentencing. (Doc. 1 at 6.) As explained above, the PCR court agreed with Petitioner that his trial counsel was ineffective for failing to file a notice of appeal, granted Petitioner leave to file a delayed notice of appeal, and Petitioner did so. (Doc. 1 at 2-3; Doc. 14-4 at 34-36.) The PCR court also granted Petitioner leave to file an amended PCR petition to supplement his claim that his trial counsel was ineffective in failing to file a notice of appeal and Petitioner, in fact, alleged additional claims. (Doc. 143 at 3-24, 29-40.)
This Court finds that Petitioner received permission to file an appeal and, as a result, Petitioner has received the relief that he has requested with respect to Claim 1(A). Accordingly, this Court determines that Claim 1(A) is moot and the district court is without jurisdiction to consider it.
Ground Two and Claims 3(B) and 3(C) in Ground Three are Non-Cognizable
The Petition was filed after April 24, 1996, is therefore governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Smith v. Robbins, 528 U.S. 259, 267 n.3 (2000). Under 28 U.S.C. § 2254(a), a district court may only entertain applications for writ of habeas corpus “on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” See 28 U.S.C. § 2254(a). Federal habeas corpus relief “is unavailable for alleged error in the interpretation or application of state law.” Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985); see also Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“[F]ederal habeas corpus relief does not lie for error of state law.” (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990))). “[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.” Estelle, 502 U.S. at 67-68; Sturm v. Cal. Adult. Auth., 395 F.2d 446, 448 (9th Cir. 1967) (“[A] state court's interpretation of its statute does not raise a federal question.”).
Habeas relief “is not available when a petitioner merely alleges that something in the state proceedings was contrary to general notions of fairness or violated some federal procedural right unless the Constitution or other federal law specifically protects against the alleged unfairness or guarantees the procedural right in state courts.” Middleton, 768 F.3d at 1085. Likewise, an error of state law cannot be transformed into a federal error by simply citing a broad constitution concept such as due process. See Gray v. Netherland, 518 U.S. 152, 163 (1996).
Ground Two: In Ground Two, Petitioner challenges the PCR court's discretion to summarily deny his supplemental PCR petition without an evidentiary hearing. (Doc. 1 at 7.) This Court agrees with Respondent that the PCR court's discretion to grant an evidentiary hearing is ground in state law. See Ariz. R. Crim. P. 32.11(a) (“If, after identifying all precluded and untimely claims, the court determines that no remaining claim presents a material issue of fact or law that would entitle the defendant to relief under this rule, the court must summarily dismiss the petition.”); see also State v. Bennett, 146 P.3d 63, 67 ¶ 17 (Ariz. 2006) (court's decision to deny PCR relief based on lack of colorable claim reviewed for abuse of discretion).
As mentioned above, federal habeas relief is not available to redress alleged errors in state PCR proceedings. See 28 U.S.C. § 2254(a) (federal habeas court is limited to deciding whether a conviction violated “the Constitution or laws or treaties of the United States”); see also Ortiz v. Stewart, 149 F.3d 923, 939 (9th Cir. 1998) (“federal habeas relief is not available to redress alleged procedural errors in state post-conviction proceedings”).
This Court finds that Ground Two fails to assert a basis for federal habeas relief and is thus non-cognizable.
Ground Three: In Claim 3(B), Petitioner alleges that he was denied his right to due process under the Sixth Amendment when the state was allowed to introduce evidence of a syringe found in his holding cell. (Doc. 1 at 8.) As pointed out by Respondent, state court evidentiary rulings based upon issues of state law are not cognizable on federal habeas review. See Dubria v. Smith, 224 F.3d 995, 1001 (9th Cir. 2000); Windham v. Merkle, 163 F.3d 1092, 1103 (9th Cir. 1998). “Under AEDPA, even clearly erroneous admissions of evidence that render a trial fundamentally unfair may not permit the grant of federal habeas corpus relief if not forbidden by ‘clearly established Federal law,' as laid out by the Supreme Court.” Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (citing 28 U.S.C. § 2254(d)). The United States Supreme Court “has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ.” Id. In the absence of “clearly established Federal law,” federal courts are without authority to address a state court's application of its own evidentiary rules. Id. This Court finds that Claim 3(B) is non-cognizable on habeas review because it is grounded in state law.
In Claim 3(C), Petitioner alleges that the trial court improperly instructed the jury on possession of a firearm during commission of an offense as an aggravating factor. (Doc. 1 at 8.) As pointed out by Respondent, in his direct appeal, Petitioner argued the trial court improperly instructed the jury on the elements of A.R.S. § 13-3102(A)(8), a substantive weapons misconduct statute. (Doc. 14-4 at 57-58, 126-128.) The court of appeals rejected Petitioner's argument, determining that the relevant statute was A.R.S. § 13-701(D)(2) and this statute expressly addresses the use of a deadly weapon during the commission of an offense as a sentencing aggravator. (Doc. 14-1 at 9-10.) Accordingly, this Court finds that Claim 3(C) concerns state sentencing law and is non-cognizable on federal habeas review. See Jeffers, 497 U.S. at 780 (rejecting petitioner's claim that Arizona state court misapplied its own aggravating circumstance because “federal habeas corpus relief does not lie for errors of state law”); Watts v. Bonneville, 879 F.2d 685, 687 (9th Cir. 1989) (federal courts not authorized under 28 U.S.C. § 2254(a) to hear claims of violations of state sentencing laws).
In sum, this Court finds that Ground Two and Claims 3(B) and 3(C) alleged in Ground Three are non-cognizable on federal habeas review.
Claims 1(B) through 1(D) in Ground One, Ground Two, and Ground Threeare Procedurally Defaulted Without Excuse
This finding is in the alternative. See n. 1, supra.
This finding is in the alternative with respect to Claims 3(B) and 3(C) in Ground Three. See n. 2, supra.
Exhaustion
A federal court may only consider a petitioner's application for a writ of habeas corpus if “the applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A); see Coleman v. Thompson, 501 U.S. 722, 731 (1991). Exhaustion requires a petitioner to “fairly present” his federal claims to the trial court and thereafter “invok[e] one complete round of the State's established appellate review process,” presenting the same federal claim to each court in a procedurally appropriate manner. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). “To exhaust one's state court remedies in Arizona, a petitioner must first raise the claim in a direct appeal or collaterally attack his conviction in a [PCR] petition . . . pursuant to [former] Rule 32.” Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). A petitioner must then present his claims to the Arizona Court of Appeals. See Castillo v. McFadden, 399 F.3d 993, 998 & n.3 (9th Cir. 2005) (“[C]laims of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.”) (quoting Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999)).
The habeas petitioner bears the burden of showing that he has exhausted his state court remedies. See Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981). A claim is only “fairly present[ed]” 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). A petitioner must clearly state “the federal basis and federal nature of the claim, along with relevant facts.” Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011). A “general appeal to a constitutional guarantee,” such as due process, is insufficient to achieve fair presentation. Shumway, 223 F.3d at 987 (quoting Gray v. Netherland, 518 U.S. 152, 163 (1996)); see also Castillo, 399 F.3d at 1003 (“Exhaustion demands more than drive-by citation, detached from any articulation of an underlying federal legal theory.”).
Procedural Default
A corollary to the exhaustion requirement is the procedural default doctrine, which 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); see also 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.”). There are two types of procedural bars, “express and implied.” Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010).
A claim is technically exhausted, but expressly procedurally defaulted, when a petitioner attempted to raise it in state court and the state court expressly applied a procedural bar resting on an independent and adequate state law ground to avoid considering the merits of the claim. See Nunnemaker, 501 U.S. at 802-05; see also Insyxiengmay v. Morgan, 403 F.3d 657, 665 (9th Cir. 2005) (holding procedural default “applies to bar federal habeas review when the state court has declined to address the petitioner's federal claims because he failed to meet state procedural requirements”) (quoting McKenna v. McDaniel, 65 F.3d 1483, 1488 (9th Cir. 1995)).
A claim is also technically exhausted, but implicitly procedurally defaulted, when a petitioner has not raised a claim in state court and a return to state court to exhaust the claim would be futile in light of state procedural rules. See O'Sullivan, 526 U.S. at 848 (finding claims procedurally defaulted because habeas petitioner was time-barred from presenting his claims in state court); Coleman, 501 U.S. at 735 n.1 (noting that 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 into a narrow category of claims for which a successive PCR petition is permitted. See Ariz. R. Crim. P. 32.1(b)-(h), 32.2(b), 33.1(b)-(h) & 33.2(b)(1) (successive PCR petitions are limited to claims of: lack of subject matter jurisdiction; sentence not authorized by law or plea agreement; custody continues or will continue beyond sentence's expiration; newly-discovered material facts; defendant not at fault for failure to file a timely PCR notice; significant change in the law would probably overturn conviction or sentence; actual innocence).
Besides preclusion under Rule 32.2, Arizona's criminal procedural rules require a PCR notice in a non-capital case be filed either “within 90 days after the oral pronouncement of sentence” or “within 30 days after the issuance of the mandate in the direct appeal, whichever is later” as stated in the applicable rule. See Ariz. R. Crim. P. 32.4(b)(3)(A); Ariz. R. Crim. P. 33.4(b)(3)(A); Moreno v. Gonzalez, 116 F.3d 409, 410 (9th Cir. 1997) (recognizing untimeliness bar under former Rule 32.4(a) as a basis for dismissing an Arizona PCR petition distinct from preclusion under former Rule 32.2(a)); State v. Lopez, 323 P.3d 1164, 1165-66, ¶¶ 5-9 (Ariz. App. 2014) (discussing differences between the time-bar rule, former Rule 32.4(a), and the waiver rule, former Rule 32.2(a)(3)). An untimely PCR notice is permitted in the same category of claims that are exempted from the preclusion bar. See Ariz. R. Crim. P. 32.1(b)-(h), 32.4(b)(3)(B). If a claim does not fall within one of the narrow exceptions or is filed outside the time limits, the successive PCR notice is subject to summary dismissal. See, e.g., State v. Diaz, 269 P.3d 717, 719-21, ¶¶ 5-13 (Ariz. App. 2012); State v. Rosario, 987 P.2d 226, 228 ¶ 7 (Ariz. App. 1999); State v. Jones, 897 P.2d 734, 735-36 (Ariz. App. 1995).
Because Arizona's preclusion rules (Rules 32.2 and 33.2) and time-bar rules (Rules 32.4 and 33.4) are both “independent” and “adequate,” either when specifically applied to a claim by an Arizona court, or when precluding a return to state court to exhaust a claim, they procedurally bar subsequent review of the merits of that claim by a federal habeas court. See Stewart v. Smith, 536 U.S. 856, 860 (2002) (finding determinations made under Arizona's procedural default rule are “independent” of federal law); see also Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002) (finding that unexhausted claims were procedurally defaulted because petitioner was “now time-barred under Arizona law from going back to state court”); Ortiz v. Stewart, 149 F.3d 923, 931-32 (9th Cir. 1998) (rejecting the argument that Arizona courts have not “strictly or regularly followed” Rule 32); Carriger v. Lewis, 971 F.2d 329, 333 (9th Cir. 1992) (en banc) (rejecting the assertion that Arizona courts' application of procedural default rules had been “unpredictable and irregular”); State v. Mata, 916 P.2d 1035, 1050-52 (Ariz. 1996) (noting that waiver and preclusion rules are strictly applied in PCR proceedings).
Ground One: As set forth above, in Claims 1(B) through 1(D), Petitioner argues that his trial counsel rendered ineffective assistance when he failed to call his father to testify as a witness, inform the court about conversations between police officers overheard in the hallway by his son and mother, and object to a juror who was employed by Pima County Adult Probation Services. (Doc. 1 at 6.) Petitioner raised these claims in his PCR petition, and the PCR court summarily denied relief on all claims. (Doc. 14-3 at 10-12, 31-35; Doc. 1404 at 10-13.) The court of appeals denied review, reasoning that Petitioner's petition for review did not contain a “statement of material facts concerning the issues presented for review, including specific references to the record for each material fact,” and “reasons why the appellate court should grant the petition,” as required by Ariz. R. Crim. P. 32.16(c)(2)(C)-(D). (Doc. 14-4 at 28-29.)
This Court agrees with Respondent that the court of appeals' application of a procedural bar did not depend on a federal constitutional ruling or an examination of the merits of Petitioner's claims, and, thus, the court of appeals' ruling was “independent” of federal law. See Smith, 536 U.S. at 860; see also Nitschke v. Belleque, 680 F.3d 1105, 1110 (9th Cir. 2012) (discussing requirement that state procedural rule must rest on an “independent” state law ground). Rule 32.16(c) has been regularly and consistently followed by Arizona courts. See e.g., Cabrera-Somosa v. Ryan, No. CIV 14-1202-PHX-SRB, 2014 WL 5488980, at *13 (D. Ariz. Oct. 29, 2014) (court of appeals denial of review based on Rule 32.16(c) procedurally barred claims on habeas review); State v. Cotton, No. 2 CA-CR 2021-0010-PR, 2021 WL 507868, at *1, ¶ 3 (Ariz. App. Feb. 11, 2021) (denying review for failure to comply with Rule 32.16(c) requirements); State v. Safley, No. 2 CA-CR 2020-0199-PR, 2020 WL 6948940, at *1, ¶ 4 (Ariz. App. Nov. 25, 2020) (same); State v. Villarreal, No. 1 CA-CR 17-0205 PRPC, 2018 WL 1163030, at *1-2, ¶¶ 6-7 (Ariz. App. March 6, 2018) (granting review but denying relief based on failure to comply with Rule 32.16(c)); State v. Montano, No. 2 CA-CR 2016-0203-PR, 2016 WL 3950678, at *1, ¶ 6 (Ariz. App. July 20, 2016) (denying review for failure to comply with Rule 32.16(c) requirements); State v. Mata-Camacho, No. 2 CA-CR 2012-0004-PR, 2012 WL 759295, at *1, ¶ 3 (Ariz. App. March 8, 2012) (same). This Court also agrees with Respondents that the requirements of Ariz. R. Crim. P. 32.16(c) are firmly established and regularly followed in Arizona, thus rendering the court of appeals' procedural ruling “adequate.” See Johnson, 486 U.S. at 587.
This Court finds that because the state court expressly applied an independent and adequate procedural bar to reject Claims 1(B) through 1(D), these claims are technically exhausted, but expressly procedurally defaulted.
Ground Two: As set forth above, in Ground Two, Petitioner claims that he was deprived of Sixth Amendment right to due process when the trial court failed to hold an evidentiary hearing on his PCR petition. (Doc. 1 at 7.) As explained above, this Court has found that Ground Two is non-cognizable on habeas review. As explained below, this Court alternatively finds that Ground Two is unexhausted because Petitioner failed to raise Ground Two in the court of appeals.
The court of appeals set forth the allegations in Petitioner's petition for review thusly:
Although [Petitioner] has filed what purports to be a petition for review of the trial court's February 2019 ruling denying his Rule 32 petition, he has failed to present any meaningful argument as to why the court's ruling was an abuse of discretion. His petition is nothing more than a summary of the issues he raised below and of the court's ruling. In the portion of the form petition for review entitled “Facts material to the issue presented,” [Petitioner] directs us to the “underlying pleadings” in the “court below,” noting “[t]here is not sufficient room to extrapolate on [the] form, and the argument has already been succinctly presented.” Similarly, in the portion of the form entitled “Reasons why this court should grant the petition,” [Petitioner] states, “Because the judicial concept of stare decisis will be abrogated if it is not.”
(Doc. 14-4 at 28-29.) Petitioner's petition for review fails to allege, as Petitioner does in
Ground Two of the instant Petition, the alleged denial of his Sixth Amended right to due process. In other words, Petitioner failed to fairly present Ground Two in the court of appeals. Thus, Ground Two is unexhausted and procedurally defaulted because Arizona's procedural rules preclude Petitioner from returning to state court to properly exhaust this claim in a subsequent Rule 32 proceeding. See Ariz. R. Crim. P. 32.2(a)(3) (precluding post-conviction relief on any ground that has been “waived at trial on appeal, or in any previous post-conviction proceeding”); Ariz. R. Crim. P. 32.4(b)(3)(A); see also Beaty, 303 F.3d at 987 (holding that a state PRC action is futile where it is time barred); Moreno, 116 F.3d at 410 (recognizing untimeliness under Ariz. R. Crim. P. 32.4(a) as a basis for dismissal of an Arizona petition for post-conviction relief, distinct from preclusion under Rule 32.2(a)); Mata, 916 P.2d at 1048 (defendant waived claim that defendant's counsel at sentencing was ineffective where defendant did not raise claim in either first or second petitions for post-conviction relief).
Ground Three: As mentioned, in Ground Three, Petitioner asserts that he was deprived of his Sixth Amendment right to due process when the trial court denied his motion for a mistrial based upon the prosecutor's remarks during closing arguments, allowed the State to introduce evidence of a syringe, and instructed the jury on possession of a firearm during the commission of an offense as an aggravating factor. (Doc. 1 at 8.)
Petitioner failed to present these claims in the state court. As pointed out by Respondent, in his state court briefing Petitioner relied exclusively on state law and did not reference his Sixth Amendment right to due process under the United States Constitution. (Doc. 14-4 at 48-61, 120-128.) The court of appeals likewise relied on state law in rejecting Petitioner's claims. (Doc. 14-1 at 5-11.) Because Arizona's procedural rules preclude Petitioner from returning to state court to properly exhaust these claims in any subsequent Rule 32 proceedings this Court finds that the claims alleged in Ground Three are technically exhausted but procedurally defaulted. See Ariz. R. Crim. P. 32.2(a)(3); Ariz. R. Crim. P. 32.4; see also Beaty, 303 F.3d at 987; Moreno, 116 F.3d at 410; Mata, 916 P.2d at 1048.
The Procedural Default Cannot be Excused
A federal habeas court may review the merits of a procedurally defaulted claim only if the petitioner alleges and proves either “cause and prejudice” or a fundamental miscarriage of justice by establishing his actual innocence. Coleman, 501 U.S. at 750. To establish “cause,” a petitioner must demonstrate that “some objective factor external to the defense impeded [petitioner]'s efforts to comply with the State's procedural rule.” Coleman, 501 U.S. at 753 (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). “Prejudice” requires a showing that the alleged constitutional violation worked to the prisoner's “actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis deleted); see also Stokley v. Ryan, 705 F.3d 401, 403 (9th Cir. 2012); White v. Lewis, 874 F.2d 599, 603 (9th Cir. 1989).
To establish a “fundamental miscarriage of justice,” a petitioner must establish that, in light of new evidence, “it is more likely than not that no reasonable juror would have convicted him.” Schlup v. Delo, 513 U.S. 298, 327 (1995). Actual innocence means factual innocence, not legal insufficiency of the evidence. Bousley v. United States, 523 U.S. 614, 623-24 (1998); see also United States v. Ratigan, 351 F.3d 957, 965 (9th Cir. 2003). The actual innocence standard articulated in Schlup is “demanding.” McQuiggin v. Perkins, 569 U.S. 383, 401 (2013).
Petitioner does not claim actual innocence. (Doc. 1, 15.) In his reply, Petitioner urges that his claims are not procedurally defaulted. (Doc. 15 at 5, 10, 11.) Petitioner explains that he had to “consult a five-year-old edition of the World Almanac and Book of Facts to determine the applicable Constitutional Amendments involved for completion and initial submission of his § 2254 Petition.” Id. at 13. He urges that has had no access to legal materials and he “has been forced through most of [the] lower-court proceedings to proceed without a lawyer[] [b]ut not through all of it.” Id.
This Court finds Petitioner's averments are insufficient for this Court to find that cause and prejudice exist such that the district court may excuse procedural default of his claims. See, e.g., Thomas v. Lewis, 945 F.2d 1119, 1123 (9th Cir. 1986) (alleged inadequate prison library and legal assisting procedures not cause to excuse procedural default); Hughes v. Idaho Bd. of Corrections, 800 F.2d 905, 908-09 (9th Cir. 1986) (petitioner's pro se status, release of inmate assistant, and illiteracy not cause to excuse procedural default); Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988) (mental state of pro se petitioner and incompetent jailhouse lawyer not cause to excuse procedural default).
Recommendation
For the reasons set forth above, this Court finds that that Claim 1(A) alleged in Ground One is moot; the claim alleged in Ground Two and Claims 3(B) and 3(C) alleged in Ground Three are non-cognizable on habeas review; and Claims 1(B) through 1(D) alleged in Ground One, Ground Two and the claims alleged in Ground Three are procedurally defaulted without excuse and barred from habeas review. Accordingly, this Court RECOMMENDS that the district court, after an independent review of the record, DISMISS the Petition (Doc. 1).
Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply shall be filed unless leave is granted by the district court.
If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should use the following case number: CV-20-371-TUC-RCC. Failure to file timely 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).