Opinion
CV-20-02263-PHX-SRB (ESW)
06-28-2021
Robert Shawn Hawk, Petitioner, v. David Shinn, et al., Respondents.
TO THE HONORABLE SUSAN R. BOLTON, SENIOR UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
Honorable Eileen S. Willett United States Magistrate Judge
Pending before the Court is Robert Shawn Hawk's (“Petitioner”) Amended “Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus” (the “Amended Petition”) (Doc. 6). For the reasons explained herein, the undersigned recommends that the Court dismiss the Amended Petition (Doc. 6) with prejudice.
I. BACKGROUND
In 1995, Petitioner was convicted in the State of California for first-degree murder and sentenced to a twenty-six year prison term. (Doc. 6 at 18). On October 16, 1997, Petitioner was convicted in the Superior Court of Arizona (the “Superior Court”) for fraudulent schemes and artifices. The Superior Court sentenced Petitioner to a five-year prison term that runs consecutively to Petitioner's first-degree murder sentence imposed by the State of California. (Bates Nos. 2-4).
Citations to the state court record submitted with Respondents' Limited Answer (Doc. 14) refer to the Bates-stamp numbers affixed to the lower right corner of each page of the record.
On March 6, 2018, Petitioner filed in the Superior Court a “Motion for Discharge of Sentence, ” which asserted that his Arizona sentence was fully satisfied. (Bates Nos. 5-8). The Superior Court denied the Motion. (Bates No. 9). Petitioner then filed a Petition for Writ of Habeas Corpus in the Arizona Court of Appeals. (Bates Nos. 10-15). The Arizona Court of Appeals dismissed the Petition for Writ of Habeas Corpus for lack of jurisdiction and informed Petitioner that he may challenge the validity of his sentence by filing a petition for post-conviction relief in the Superior Court. (Bates No. 16).
On June 10, 2019, Petitioner filed a Petition for Writ of Habeas Corpus in the Superior Court. (Bates Nos. 18-39). Petitioner explained that on January 22, 2019, the State of California transferred custody of him to the State of Arizona. (Bates No. 20). Petitioner submitted a copy of the “Notice and Conditions of Parole” issued by the California Department of Corrections and Rehabilitation. (Bates No. 33). Although Petitioner and staff signed the Notice in January 2019, the Notice states: “You are being released to parole supervision, effective 8/15/2013.” (Id.). Based on the Notice, Petitioner argued that he was entitled to credit against his Arizona sentence for the time between August 15, 2013 and his transfer from California custody to Arizona custody in January 2019. (Bates Nos. 23-24).
The Superior Court deemed the Petition for Writ of Habeas Corpus as a request for post-conviction relief (“PCR”), and it is referred to herein as the “2019 PCR Petition.” (Bates No. 48-49). In its decision denying relief, the Superior Court recounted that the Release Memo issued by the California Board of Parole Hearings, “makes it clear” that Petitioner “was not granted parole until September 28, 2018, and his parole was not final until the Governor decided to take no further action on his parole in January of 2019.” (Bates No. 51). The Superior Court explained:
The record contains a copy of the Release Memo. (Bates No. 88).
The Release Memo states “Penal Code section 3041(a)(4) provides that an inmate who qualifies as a youth offender and is granted parole is eligible for release upon reaching his or her MEPD or YPED, whichever comes first.” Defendant argues the law requires that California law required that he be granted parole and released on his “Minimum Eligible Parole Date” (MEPD), August 15, 2013, because it is earlier than his “Youth Parole Eligible Date” (YPED). Defendant misunderstands this parole provision. These dates govern only when he could be released after being granted parole. California law does not require that he be released on his MEPD unless he was granted parole before his MEPD.(Id.). The Superior Court observed that the inclusion of August 15, 2013 as Petitioner's parole release date in the Notice and Conditions of Parole “was obviously a mistake” that “does not change the fact that [Petitioner] was actually released to parole on January 22, 2019.” (Id.). As Petitioner had not yet completed his Arizona sentence, the Superior Court dismissed the PCR proceeding. (Bates No. 52). Petitioner filed a Petition for Review in the Arizona Court of Appeals (Bates Nos. 53-91), which was denied. State v. Hawk, No. 2 CA-CR 2020-0197-PR, 2020 WL 6707516 (Ariz.Ct.App. Nov. 16, 2020).
Petitioner initiated this federal habeas proceeding on November 23, 2020. (Doc. 1). The Court screened the Amended Petition (Doc. 6) and required Respondents to answer. (Doc. 7). Respondents filed a Limited Answer (Doc. 14), to which Petitioner replied (Doc. 15). As discussed below, the undersigned finds that Respondents correctly assert that Petitioner's habeas claims are procedurally defaulted without excuse.
Respondents also assert that the proceeding is subject to dismissal due to the one-year statute of limitations imposed by 28 U.S.C. § 2244(d). The parties dispute the commencement date of the statute of limitations. Because the Amended Petition is appropriately dismissed based upon Petitioner's procedural defaults, the Court need not resolve the statute of limitations issue.
II. LEGAL STANDARDS
A. 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”).
B. 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). If the state meets its burden, 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).
III. DISCUSSION
A. Petitioner's Habeas Claims are Procedurally Defaulted
The Amended Petition presents two claims for habeas relief, which the Court's Screening Order summarizes as follows:
In Ground One, Petitioner asserts that his equal protection rights were violated. Petitioner was sentenced to five years, with 448 days of presentence credit, before he was returned to California to serve his sentence there. On January 29, 2019, Petitioner was released from CDCR and returned to Arizona. Upon his California release, Petitioner was given a notice of release “effective 8/15/2013” although he was not released until 2019, and citing copies of CDCR notices, which appear to reflect that Petitioner remained in CDCR custody after fully serving his sentence.
In Ground Two [ ], he asserts that his equal protection rights were violated. Petitioner alleges that the record provided to him by CDCR reflects that as of July 16, 2013, California authorities stopped crediting him for time served as to his California sentence and that he was released to parole effective August 15, 2013. (Doc. 6, Ex. E). Petitioner contends that at the time he “was removed to Arizona, ” he had served 2, 349 days that were not credited to any sentence. He contends that time must be credited against his consecutive Arizona sentence, which totals 1, 825 days.(Doc. 10 at 3). Respondents assert that Petitioner “did not present his equal-protection and Eighth-Amendment claims to the state trial court. He did not cite or even mention the U.S. Constitution in either his March 2018 discharge Motion or his 2019 PCR.” (Doc. 14 at 7). Petitioner concedes that he did not present his habeas claims in his 2018 Superior Court proceeding. Instead, Petitioner contends that in his 2019 PCR Petition, he “set out the identical factual predicate as the instant petition, which gave proper and sufficient notice to Respondent.” (Doc. 15 at 6). However, the 2019 PCR Petition did not fairly present his claims as federal constitutional claims. A federal claim is not exhausted merely because its factual basis was presented to the state courts on state law grounds-a “mere similarity between a claim of state and federal error is insufficient to establish exhaustion.” Shumway v. Payne, 223 F.3d 982, 988 (9th Cir. 2000) (quotations omitted). Even when a claim's federal basis is “self-evident, ” or the claim would have been decided on the same considerations under state or federal law, a petitioner must still present the federal claim to the state courts explicitly, “either by citing federal law or the decisions of federal courts.” Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000) (quotations omitted), amended by 247 F.3d 904 (9th Cir. 2001); see Baldwin v. Reese, 541 U.S. 27, 32 (2004) (claim not fairly presented when state court “must read beyond a petition or a brief . . . that does not alert it to the presence of a federal claim” to discover implicit federal claim).
In his Reply, Petitioner states that “the March 2018 Motion and the instant petition are dissimilar and have no association one to the other as the factual predicate in each are dissimilar.” (Doc. 15 at 6).
Petitioner's 2019 PCR Petition asserted that his confinement was “in violation of constitutional standards.” Yet a “general appeal to a constitutional guarantee” is insufficient to achieve fair presentation. Shumway, 223 F.3d at 987 (quoting Gray v. Netherland, 518 U.S. 152, 163 (1996)); see Castillo v. McFadden, 399 F.3d 993, 1003 (9th Cir. 2005) (“Exhaustion demands more than drive-by citation, detached from any articulation of an underlying federal legal theory.”).
Although Petitioner's Reply in support of his 2019 PCR Petition presented claims under the Equal Protection Clause and Eighth Amendment (Doc. 15 at 19-23), “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). The Arizona Court of Appeals' decision affirming the Superior Court's dismissal of the 2019 PCR Petition states that Petitioner's Equal Protection and Eighth Amendment claims were not raised in the Superior Court. State v. Hawk, No. 2 CA-CR 2020-0197-PR, 2020 WL 6707516, at *2 (Ariz.Ct.App. Nov. 16, 2020) (“We do not address Hawk's claims that his equal protection rights or Eighth Amendment rights have been violated because he did not raise them below.”).
Because Petitioner failed to fairly present his habeas claims to both the Superior Court and Arizona Court of Appeals, the undersigned finds that Petitioner's habeas claims are unexhausted. If Petitioner returned to state court and presented his habeas claims in another PCR Petition, the PCR Petition would be untimely and successive. 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).
For the above reasons, the undersigned finds that Petitioner's habeas claims 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).
B. Petitioner's Procedural Defaults are Not Excused
The merits of a habeas petitioner's procedurally defaulted claims are to be reviewed if the petitioner (i) shows cause for the default and actual prejudice as a result of the alleged violation of federal law or (ii) shows that the failure to consider the federal claim will result in a fundamental miscarriage of justice. McKinney v. Ryan, 730 F.3d 903, 913 (9th Cir. 2013). In order to establish cause for a procedurally defaulted claim, “a petitioner must demonstrate that the default is 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).
1. Petitioner has Not Satisfied the “Cause and Prejudice” Exception
Under Ninth Circuit case law, Petitioner's status as an inmate with limited legal resources cannot constitute cause to excuse his procedural defaults. See Hughes v. Idaho State Bd. of Corr., 800 F.2d 905, 909 (9th Cir. 1986) (an illiterate pro se petitioner's lack of legal assistance did not amount to cause to excuse a procedural default); Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988) (petitioner's arguments concerning his mental health and reliance upon jailhouse lawyers did not constitute cause).
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, 510 F.3d at 1146 (internal quotation marks and citation omitted). 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 concludes that Petitioner has not satisfied the “cause and prejudice” exception to excuse his procedural defaults.
2. The Miscarriage of Justice Exception Does Not Apply
“[A] petitioner overcomes procedural default if he presents sufficient evidence to ‘demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.'” Smith v. Baldwin, 510 F.3d 1127, 1139 (9th Cir. 2007) (quoting Coleman, 501 U.S. at 750). “To make this showing, a petitioner's case must fall within the ‘narrow class of cases . . . involving extraordinary instances when a constitutional violation probably has caused the conviction of one innocent of the crime.'” Id. (quoting McCleskey v. Zant, 499 U.S. 467, 494 (1991)). “To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence- whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence.” Schlup, 513 U.S. at 324. A petitioner “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” McQuiggin v. Perkins, 133 S.Ct. 1924, 1935 (2013) (quoting Schlup, 513 U.S. at 327). Because of “the rarity of such evidence, in virtually every case, the allegation of actual innocence has been summarily rejected.” Shumway, 223 F.3d at 990 (citing Calderon v. Thomas, 523 U.S. 538, 559 (1998)).
The undersigned does not find that the actual innocence exception applies in this case. Petitioner is not attempting to show that no reasonable jury would have convicted him based on new reliable evidence. For the above reasons, the undersigned recommends that the Court dismiss the Amended Petition as all of Petitioner's habeas claims are procedurally defaulted without excuse.
IV. CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that the Amended Petition (Doc. 6) be DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that a certificate of appealability and leave to proceed in forma pauperis on appeal be denied because dismissal of the Amended Petition is justified by a plain procedural bar.
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 and 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.