Opinion
CV-21-01783-PHX-SPL (ESW)
12-20-2022
Cory Hudson, Petitioner, v. Alester Adel, et al., Respondents.
REPORT AND RECOMMENDATION
Honorable Eileen S. Willett United States Magistrate Judge
TO THE HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT JUDGE:
Pending before the Court is Cory Hudson's (“Petitioner”) Amended Petition for a Writ of Habeas Corpus (the “Amended Petition”) (Doc. 5). The Amended Petition contains four grounds for relief. For the reasons explained herein, the undersigned finds that Ground One is without merit and Grounds Two, Three, and Four are procedurally defaulted without excuse.
I. BACKGROUND
On April 18, 2019, a jury sitting in the Superior Court of Arizona in and for Maricopa County found Petitioner guilty of three counts of sale or transportation of marijuana and one count of sale or transportation of dangerous drugs. (Doc. 11-1 at 17). The trial court sentenced Petitioner to a total of 7.5 years in prison. (Id. at 20).
Petitioner filed a direct appeal. In one of the claims raised in his opening brief,
Petitioner argued that he was denied the right to counsel when the trial court denied his request for new counsel. (Id. at 78-82). On May 26, 2020, the Arizona Court of Appeals affirmed Petitioner's convictions, but found that the trial court should have inquired into whether there was a complete breakdown in communication between Petitioner and his counsel. (Id. at 164-74). The Arizona Court of Appeals remanded the matter to the trial court for an inquiry into Petitioner's right of counsel claim and stated that if Petitioner establishes a total breakdown in communication with his counsel, then the trial court must vacate Petitioner's convictions and order a new trial. (Id. at 174). The Arizona Court of Appeals further noted that if the trial court does not find a total breakdown in communication, the decision may be reviewed on appeal. (Id.). The Arizona Supreme Court denied Petitioner's request for further review, and the Arizona Court of Appeals issued its mandate on January 22, 2021. (Id. at 201, 203).
On July 8, 2019, while Petitioner's direct appeal was pending, Petitioner filed a Notice of Post-Conviction Relief (“PCR”). (Id. at 205-08). The trial court denied Petitioner's request to stay the PCR proceeding pending resolution of the appeal and dismissed the proceeding with leave to re-file within thirty days following the issuance of the Arizona Court of Appeals' mandate. (Id. at 213).
On February 17, 2021, Petitioner filed another PCR Notice. (Id. at 215-17). The trial court appointed counsel, who moved to dismiss the proceeding in light of the Arizona Court of Appeals' decision remanding the case to the trial court. (Id. at 226-27). The trial court dismissed the proceeding without prejudice. (Id. at 229).
On August 20, 2021, the trial court held an evidentiary hearing on Petitioner's right of counsel claim. (Id. at 231). The trial court found that Petitioner failed to establish that there was a total breakdown between him and his defense counsel. (Id. at 234-37). Petitioner did not seek further review by the Arizona Court of Appeals.
On October 4, 2021, Petitioner filed pro se a motion seeking to be resentenced to time served and for his record to be expunged in light of Arizona Proposition 207. (Doc. 11-1 at 239-40). The trial court denied the motion. (Id. at 252). On November 19, 2021, the Arizona Court of Appeals denied review of the trial court's order dismissing the motion as Petitioner did not file the motion as part of a PCR proceeding. (Doc. 12-1 at 34).
Petitioner filed a pro se PCR Petition on October 5, 2021. (Doc. 12-1 at 6-45). On October 12, 2021, Petitioner's PCR counsel moved to reinstate the PCR proceeding that the trial court previously dismissed. (Doc. 11-2 at 54-55). The trial court issued a minute entry ordering counsel to consult with Petitioner regarding which previous PCR proceeding Petitioner would like to reinstate or if counsel proposes to file a new PCR Petition. (Doc. 18-1 at 3-4). Petitioner's counsel filed a Notice of Compliance indicating that after discussing the matter with Petitioner, counsel will be filing a PCR Petition. (Id. at 29-30). The Notice further indicated that Petitioner has filed certain pro se motions that are not intended to be part of a PCR proceeding. (Id.).
On February 9, 2022, upon a motion filed pro se by Petitioner, the trial court dismissed the pending PCR proceeding. (Id. at 41-42). That same day, Petitioner's counsel filed a motion to reinstate the PCR proceeding, stating that Petitioner's motion to dismiss was directed only to his pro se motions. (Id. at 44-46). On February 25, 2022, Petitioner filed a Notice in this federal habeas action that states that his PCR proceeding has been dismissed upon Petitioner's request and that Petitioner “is moving forward with federal writ of habeas corpus . . . .” (Doc. 17 at 1-2).
In a minute entry filed on March 23, 2022 (attached hereto), the trial court noted that Petitioner's recent filing reaffirms that it was Petitioner's intent to dismiss all pending PCR Petitions. The trial court denied defense counsel's February 9, 2022 motion to reinstate. The March 23, 2022 minute entry also denied a motion filed pro se by Petitioner on February 14, 2022 that sought a modification of his sentence.
Petitioner initiated this federal habeas proceeding on October 21, 2021. (Doc. 1). The Court dismissed the original Petition for Writ of Habeas Corpus with leave to amend. (Doc. 4). On November 15, 2021, Petitioner filed the Amended Petition (Doc. 5), which the Court allowed to proceed. (Doc. 6). Respondents filed an Answer (Doc. 11) on January 6, 2022 and a Supplemental Response on March 2, 2022. Upon Petitioner's Motion (Doc. 13), the Court required Respondents to file the transcript of the evidentiary hearing held before the trial court in August 2021. (Doc. 16). Respondents filed the transcript on April 4, 2022. (Doc. 21). Petitioner filed a Reply to Respondents' briefing on August 10, 2022. (Doc. 30). Respondents moved to strike the Reply as it improperly raises claims not presented in the Amended Petition. (Doc. 31). The Court noted that the Reply does address some issues raised in the Amended Petition. The Court denied the Motion to Strike, but the Court stated that the improperly raised new claims would not be considered. (Doc. 34 at 1) (citing United States v. Bohn, 956 F.2d 208, 209 (9th Cir. 1992) (noting that courts generally decline to consider arguments raised for the first time in a reply brief); Lopez v. Dexter, 375 Fed.Appx. 724, at *1 (9th Cir. April 13, 2010) (district court “appropriately rejected” claim that was not alleged in the petition on the basis that it “improperly surfaced for the first time” in the petitioner's reply); Castillo v. Gittere, No. 2-04-CV-00868-RCJ-GWF, 2019 WL 189821, at *37 (D. Nev. Jan. 14, 2019) (declining to “consider the new allegations and arguments that [habeas petitioner] seeks to add to this claim for the first time in his reply”); Quiroz v. Pfeiffer, No. 2-14-CV-07-826-JAK-GJS, 2021 WL 3816358, at *11 (C.D. Cal. May 14, 2021) (“[I]t is improper to assert a new claim, distinct from that alleged in the [habeas] petition, in a reply”).
As discussed in Section II below, the undersigned finds that Ground One is without merit. Section III explains the undersigned's conclusion that Grounds Two, Three, and Four are procedurally defaulted. Finally, Section IV explains that to the extent the Amended Petition presents a freestanding claim of actual innocence, the claim is without merit.
II. GROUND ONE IS WITHOUT MERIT
A. Deference to Last Reasoned State Court Decision
In reviewing the merits of a habeas petitioner's claims, the Antiterrorism 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)).
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 Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011). A state court decision “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.” Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004) (as amended) (internal quotation marks and citation omitted).
B. Analysis
Petitioner's convictions arose after Petitioner sold marijuana and methamphetamine to two undercover detectives, Jael Zelman-Lopez and Kenneth Frazier. Those detectives testified at Petitioner's trial. (Doc. 11-4 at 12-145). At the Final Pretrial Management Conference on April 16, 2019, the State explained to the trial court that an internal investigation as to Detective Zelman-Lopez was ongoing concerning his failure to supplement reports and losing a cellphone. (Doc. 11-2 at 99100, 105). The trial court granted the State's motion to preclude defense counsel from cross-examining Detective Zelman-Lopez regarding the ongoing internal investigation. (Id. at 103). Defense counsel then moved for a continuance so that defense counsel may obtain the actual investigation records. (Id. at 103-04). The trial court denied the motion. (Id. at 105).
In Ground One of the Amended Petition, Petitioner asserts that his federal constitutional rights were violated when he “was denied effective representation of counsel and a fair trial.” (Doc. 5 at 6). In support of Ground One, Petitioner states: “Disciplinary reports of Officer Zelman and Lopez [sic]. The records would also have proved they perjured them[selves].” (Id.). Petitioner's opening brief on direct appeal asserted that Petitioner's federal constitutional rights to counsel, confront witnesses, and present a complete defense were violated when the trial court (i) precluded the defense from investigating disciplinary action against Detective Zelman-Lopez and (ii) prevented the defense from cross-examining Detective Zelman-Lopez on his violations of departmental policy and his perjury on the stand. (Doc. 11-1 at 31, 44). Petitioner reiterates this argument in his Reply (Doc. 30 at 2-5). The undersigned finds that liberally construed, Ground One presents the above claims raised on direct appeal.
To reiterate, Petitioner's Reply (Doc. 30) improperly raises additional claims not raised in the Amended Petition (Doc. 5). The Court's September 20, 2022 Order (Doc. 34) denied Respondents' Motion seeking to strike the Reply, but the Court stated that it will not consider the new claims raised in the Reply brief. (Id. at 1) (citing cases).
To the extent that Ground One presents a claim alleging that Petitioner's trial counsel provided ineffective assistance, Respondents correctly assert that such a claim is unexhausted and procedurally defaulted. (Doc. 11 at 15; Doc. 18 at 2-3).
The Arizona Court of Appeals' decision on direct appeal summarized facts relevant to Ground One of the Amended Petition as follows:
The Arizona Court of Appeals' decision refers to Detective Zelman-Lopez as “Detective B” and Detective Frazier as “Detective A.” A state court's factual determinations are presumed correct. 28 U.S.C. § 2254(e)(1). Petitioner has not rebutted this presumption by clear and convincing evidence.
¶2 In October 2016, two detectives (collectively the “detectives” or “Detective A” and “Detective B”) were members of an undercover operation investigating drug trafficking. The detectives conducted four undercover drug purchases. On October 9, 2016, they exchanged $20 for marijuana from Hudson in the parking lot of a strip club. Hudson gave Detective A his phone number, which was used to identify Hudson through a records check. The detectives also obtained a photograph of Hudson from the Arizona Motor Vehicle Department and used the photograph to confirm Hudson's identity. On October 11, 2016, they contacted Hudson, met in a store parking lot, and bought an ounce of marijuana for $220. The next day, the detectives met Hudson in the same parking lot, and gave Hudson two bottles of liquor in exchange for a gram of marijuana. Later that day, the detectives moved to a nearby parking lot where they exchanged $100 for methamphetamine. The detectives identified Hudson as the man who sold them drugs on these occasions. ....
¶4 In April 2019, six days before trial, the parties discovered Detective B was involved in ongoing internal disciplinary proceedings for violating police department policies in previous unrelated cases. Specifically, Detective B indicated the police department found that, over the course of six years, he failed on no more than three occasions to write supplemental reports, and that a suspect's cell phone was lost during an investigation. The day before trial, the State filed a motion in limine to preclude testimony about Detective B's disciplinary proceedings.
¶5 The rescheduled final pretrial conference took place the morning of jury selection. At the conference, the court granted the State's motion in limine, citing to Arizona Rule of Evidence 608(b), and indicating “[i]mpeachment with
specific instance [sic] of conduct requires more than the record currently shows.” Hudson then moved to continue the trial indefinitely to obtain the investigation records. The court denied the motion.
¶6 At trial the State called three witnesses: Detective A
and Detective B to identify Hudson as the man who sold them drugs, and Anthony Gennuso, a forensic scientist who testified that the substances sold were marijuana and methamphetamine.(Doc. 11-1 at 165-66).
In rejecting the claims presented in Ground One, the Arizona Court of Appeals stated:
¶10 In Brady v. Maryland, 373 U.S. 83, 87 (1963), the United States Supreme Court held that prosecutors cannot suppress evidence favorable to a defendant, either deliberately or inadvertently. Prosecutors, therefore, have a “duty to disclose exculpatory and impeachment evidence in criminal cases.” Foor v. Smith, 243 Ariz. 594, 598, ¶ 12 (App. 2018). Brady, however, did not create a general right to discovery in criminal cases. Id. “Indeed, defendants in criminal cases are generally entitled to only limited discovery.” Id.; see also Ariz. R. Crim. P. 15.1. “Brady does not automatically require a new trial when omitted evidence is discovered”; rather, “a new trial is required only when material information unknown to the defense has been withheld.” Foor, 243 Ariz. at 598, ¶ 12 (emphasis added). Information is material “only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682 (1985).
¶11 First, it is unclear whether any records existed at the time of trial. Although the police department apparently made an internal preliminary finding that Detective B committed policy violations, the investigation was still ongoing, and therefore there is no indication any documents existed and were concealed at the time of trial. Indeed, the State noted it did not “have any documentation,” and immediately disclosed Detective B's violations when it became aware of them.
¶12 Even assuming disciplinary records existed, there is no
indication they would have impacted the trial or changed the result of the proceeding. Hudson contends the records would have been used to impeach Detective B's testimony about his training and experience. However, it is unclear how these records would have done so. Any potential disciplinary records would not negate that Detective B did, in fact, receive training and did, in fact, have experience. Further, disciplinary records from past cases would not undermine evidence that Detective B followed procedures in the present case. Indeed, Hudson had the opportunity to fully cross examine Detective B regarding his report in this case. Hudson relies upon State v. Ashton, 95 Ariz. 37 (1963) to argue he was entitled to use disciplinary reports to impeach Detective B. In Ashton, the court held the defendant was entitled to disclosure of a police officer witness's narrative report, which was created during his investigation of the case being tried, and concerned events to which the officer testified at trial. Id. at 38. Here, unlike in Ashton, the reports being sought are not from the present case, and do not directly relate to Detective B's testimony at trial. Therefore, Hudson is not entitled to relief on this basis.
¶13 Hudson further claims that because the investigation revealed Detective B lost a suspect's cell phone in a prior unrelated case, this could amount to “theft,” creating a basis to attack Detective B's truthfulness under Rule 608(b). There is, however, no indication theft was ever implied in Detective B's disciplinary proceedings. Hudson's argument is mere speculation, which is an insufficient basis upon which to make a challenge. See State v. Youngblood, 173 Ariz. 502, 506 (1993) (“Speculation is not the stuff out of which constitutional error is made.”).
¶14 Finally, Detective B's testimony was corroborated by Detective A. That corroboration tends to negate any doubt potentially created by questioning Detective B's past behavior. This further eliminates any reasonable probability the outcome of the trial would have been different. Therefore, even if evidence was indeed concealed, it was not material.
B. Motion to Continue
¶15 Hudson argues the court erred in denying his motion to
continue the trial to conduct further investigation into Detective B's disciplinary records. “A motion for continuance is not granted as a matter of right,” and “is solely within the sound discretion of the trial judge.” State v. Jackson, 112 Ariz. 149, 154 (1975). We will not disturb the court's decision unless there is clear abuse of discretion and the defendant is prejudiced by the denial. Id. “In Arizona, it is not an abuse of discretion to deny a continuance where the testimony sought is to be used for impeachment purposes.” State v. Loyd, 118 Ariz. 106, 110 (App. 1978); see also Jackson, 112 Ariz. at 154.
¶16 Here, Hudson sought to use the information in the disciplinary report to impeach Detective B's testimony. Therefore, we find the trial court did not abuse its discretion in denying Hudson's request to continue the trial. See Loyd, 118 Ariz. at 110 (holding the court did not err by denying defendant's motion to continue when defendant requested more time to obtain and review a disciplinary report regarding police officer witnesses for impeachment purposes).
¶17 Hudson argues the court erred in precluding him from referencing Detective B's ongoing disciplinary proceeding during cross-examination. Hudson contends the court's denial amounted to denial of his right to confront witnesses. We review challenges to the trial court's admission of evidence under the confrontation clause de novo. State v. King, 212 Ariz. 372, 375, ¶ 16 (App. 2006). ....
¶19 The Sixth Amendment gives a criminal defendant the right “to be confronted with the witnesses against him.” U.S. Const. amend. VI. The United State Supreme Court has held that the “primary interest” secured by the Sixth Amendment is the right to cross-examination. Davis v. Alaska, 415 U.S. 308, 315 (1974). However, the right to cross-examination “is not without boundary, and trial judges ‘retain wide latitude . . . to impose reasonable limits on . . . cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.'” State v. Carreon, 210 Ariz. 54, 63, ¶ 36 (2005) (quoting State v. Canez, 202 Ariz. 133, 153, ¶ 62 (2002)). “[T]he
Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20 (1985). The test to determine whether cross-examination was sufficient is “whether the defendant has been denied the opportunity of presenting to the trier of fact information which bears either on the issues in the case or on the credibility of the witness.” State v. Lehr, 201 Ariz. 509, 518, ¶ 30 (2002) (quoting State v. Fleming, 117 Ariz. 122, 125 (1977)).
¶20 Here, Hudson asserts Detective B's disciplinary proceedings impair his credibility. Hudson argues that because the State bolstered Detective B's testimony by referring to his training, adherence to policy, and use of supplemental reports, Hudson was entitled to cross-examine Detective B on these issues with evidence from the disciplinary proceedings.[ ] The disciplinary reports, however, would not be proper impeachment evidence, and do not bear upon the issues at hand. Under Rule 608(b), extrinsic evidence is only admissible to prove the witness's character for truthfulness or untruthfulness. Failure to file supplemental reports does not have any bearing on Detective B's character for truthfulness, and Hudson cannot rely upon speculation that the cell phone lost by Detective B constituted theft. See Youngblood, 173 Ariz. at 506. Indeed, Hudson's attorney admitted as much at the final pretrial conference, indicating “I don't have any reason to believe that it's necessarily an honesty related issue.” Because the information in the reports would not have provided a basis for further cross-examination on the issues at hand, the court did not err in limiting the scope of cross-examination.
¶21 Further, Hudson was still able to cross-examine Detective B on his past adherence to policy. Indeed, Detective B admitted he failed to follow departmental policy in the past. Although Hudson was not allowed to cross-examine Detective B to the extent Hudson wished, the extent of the cross-examination was sufficient under the Confrontation Clause's requirements. See Fensterer, 474 U.S. at 20. We therefore cannot say Hudson was deprived of the right to confront the witness, and we find no error, much less fundamental error.(Doc. 11-1 at 166-70).
“Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense.” Crane v. Kentucky, 476 U.S. 683, 690 (1986) (internal quotation marks and citations omitted). Yet “the Confrontation Clause does not confer an unlimited right to ‘cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.'” Gibbs v. Covello, 996 F.3d 596, 601 (9th Cir. 2021) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). The Supreme Court has held that “trial judges retain wide latitude . . . to impose reasonable limits on . . . cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.” Van Arsdall, 475 U.S. at 679.
If a defendant seeks a continuance so that he or she may have additional time to prepare for trial, the trial court has discretion whether to grant that relief. The Supreme Court has explained:
The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.Ungar v. Sarafite, 376 U.S. 575, 589 (1964) (citations omitted). If the motion for a continuance is denied, to establish a constitutional violation a defendant must show demonstrable prejudice to his defense, such as “by pointing to specific errors made by trial counsel.” United States v. Cronic, 466 U.S. 648, 659 (1984). “Cronic's presumption of prejudice applies to only a very narrow spectrum of cases where the circumstances leading to counsel's ineffectiveness are so egregious that the defendant was in effect denied any meaningful assistance at all.” Chadwick v. Green, 740 F.2d 897, 901 (11th Cir. 1984).
The Arizona Court of Appeals reasonably concluded that to the extent they existed, records concerning the internal investigation as to Detective Zelman-Lopez would not have resulted in a different outcome of the trial. As mentioned, the State explained to the trial court that the internal investigation was not concluded and that the State did not “have any documentation.” (Doc. 11-2 at 100, 105). Defense counsel cross-examined Detective Zelman-Lopez regarding his report in Petitioner's case and elicited testimony in which Detective Zelman-Lopez admitted that he has not always followed departmental policy. (Doc. 11-4 at 64, 77)4 In addition, although the pending investigation of Detective Zelman-Lopez concerned in part the loss of a cellphone, the Arizona Court of Appeals correctly noted that there was no indication that theft was implied. (Doc. 11-1 at 168). Defense counsel stated to the trial court that she did not “have any reason to believe that [the investigation] is necessarily an honesty related issue” and did not view the investigation as Brady material. (Doc. 11-2 at 101; Doc. 11-4 at 11). Lastly, Detective Zelman-Lopez's testimony was corroborated by Detective Frazier. (Doc. 11-4 at 93-121).
After reviewing the record and the parties' briefing, the undersigned finds that Petitioner has failed to show that the Arizona Court of Appeals' rejection of Ground One is contrary to, or an unreasonable application of, established federal law as determined by United States Supreme Court precedent. See 28 U.S.C. § 2254(d). Petitioner also has failed to show that the decision was an unreasonable determination of the facts based on the evidence in the record. It is recommended that the Court deny Ground One.
For instance, below is an excerpt from defense counsel's cross-examination of Detective Zelman-Lopez:
Q. And, again, that's why it is so important to have accurate reports, isn't it?
A. Correct.
Q. And to follow policy?
A. Correct.
Q. Which you admitted you don't always do or haven't done?
A. I have not, yes.(Doc. 11-4 at 77).
III. GROUNDS TWO, THREE, AND FOUR ARE PROCEDURALLY
DEFAULTED
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).
C. Analysis
1. Grounds Two, and Three, and Four are Unexhausted i. Ground Two
Ground Two of the Amended Petition challenges Petitioner's sentence. (Doc. 5 at 9). Petitioner asserts that the June 11, 2019 sentencing transcript at page 8, line 7 shows that Petitioner is actually innocent. (Id.). Petitioner also appears to assert in Ground Two that his sentence was “incredibly harsh.” (Id.). To the extent Ground Two challenges Petitioner's sentence, Respondents are correct that the claim is unexhausted as Petitioner did not raise the claim on direct appeal. (Doc. 11 at 16; Doc. 11-1 at 31-83). Petitioner presented only the following four issues on direct appeal: (i) Did the trial court err by precluding the defense from investigating disciplinary action against testifying Detective Zelman-Lopez?; (ii) Did the trial court err by preventing the defense from cross-examining Detective Zelman-Lopez on his violations of departmental policy and his perjury on the stand?; (iii) Did the trial court err by allowing the state to elicit profile evidence and paint Petitioner as a “typical” drug dealer?; and (iv) Did the trial court err by forcing Petitioner to go to trial with an attorney who twice did not represent him in court and with whom he could not communicate? (Doc. 11-1 at 31).
To the extent Ground Two may be construed as presenting a freestanding innocence claim, Section IV below recommends that it be denied.
ii. Ground Three
Ground Three of the Amended Petition asserts that:
Jury trial verdict was based on officers testifying that were not involved in this case evidence was falsely used from another case, used to convict other guy did this and he owed up to it, and already took a plea bargain.
Officers-who testifyied [sic] are also listed on Brady list for police misconduct, [illegible] and compelling reasons for relief.(Doc. 5 at 11). The undersigned concurs with Respondents that Ground Three appears to raise a claim that insufficient evidence supports his convictions. (Doc. 11 at 17). The claim is unexhausted as Petitioner did not raise the claim on direct appeal.
iii. Ground Four
In Ground Four, Petitioner asserts that his sentence should be modified under Arizona Proposition 207. (Doc. 5 at 14). Ground Four also states that “the instant that the Court amends the indictment the Court lose's [sic] jurisdiction at that point in time there nothing [sic] for witch [sic] the prisoner can be held to answer a trial is void 6thAmendment United States Constitution.” (Id.). On October 4, 2021, Petitioner filed a motion in the trial court requesting that his marijuana convictions be expunged in light of Arizona Proposition 207. (Doc. 11-1 at 239-40). The trial court denied the motion. (Id. at 252). The Arizona Court of Appeals dismissed Petitioner's request for further review, noting that Petitioner “did not file the motion as part of a post-conviction relief proceeding pursuant to Arizona Rule of Criminal Procedure 32 and the superior court did not consider the motion pursuant to Rule 32.” (Doc. 12-1 at 3). Ground Four is unexhausted because (i) the claim was not presented to the state courts as an issue of federal law and (ii) Petitioner's motion filed in the trial court was not a PCR Petition. See Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994) (“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 petition for post-conviction relief pursuant to Rule 32”).
It is noted that in December 2021, Petitioner filed another motion in the trial court that was titled “Motion for Reconciliation for Pending-Action Canon on the ‘Smart and Safe Arizona Act' A.R.S. Title 42, Ch. S Art. 10” (Doc. 11-2 at 57-59). The filing states “Now comes Petitioner for a request for this honorable court for reconciliation on Prop 207 that decriminalizing marijuana making Prop 207 a enabling statue [sic] for Petitioner's] release.” (Id. at 57). The filing requested the trial court to “expunge the marijuana sentence.” (Id. at 59). No action was taken on the filing. The filing cannot serve to exhaust Ground Four as it does not assert a violation of federal law and was not part of a PCR proceeding.
D. Grounds Two, Three, and Four are Procedurally Defaulted
If Petitioner returned to state court and presented Grounds Two, Three, and Four in a PCR Petition, the PCR Petition would be precluded from review. Under Arizona Rule of Criminal Procedure 32.2(a)(3), a defendant is precluded from raising claims that could have been raised and adjudicated on direct appeal or in any previous collateral proceeding. See also State v. Curtis, 912 P.2d 1341, 1342 (Ariz.Ct.App. 1995) (“Defendants are precluded from seeking post-conviction relief on grounds that were adjudicated, or could have been raised and adjudicated, in a prior appeal or prior petition for post-conviction relief.”); State v. Berryman, 875 P.2d 850, 857 (Ariz.Ct.App. 1994) (defendant's claim that his sentence had been improperly enhanced by prior conviction was precluded by defendant's failure to raise issue on appeal).
Arizona Rule of Criminal Procedure 32.2(a)(3) constitutes an “adequate and independent” state ground for denying review. Stewart v. Smith, 536 U.S. 856, 860 (2002) (per curiam) (preclusion of issues for failure to present them at an earlier proceeding under Arizona Rule of Criminal Procedure 32.2(a)(3) “are independent of federal law because they do not depend upon a federal constitutional ruling on the merits”); Jones v. Ryan, 691 F.3d 1093, 1101 (9th Cir. 2012) (“Arizona Rule of Criminal Procedure 32.2(a)(3) is independent of federal law and has been regularly and consistently applied, so it is adequate to bar federal review of a claim.”); Murray v. Schriro, 745 F.3d 984, 1016 (9th Cir. 2014) (“[A] claim that has been ‘waived' under [Ariz. R. Crim. P. 32.2(a)(3)] is procedurally defaulted and therefore barred from federal court consideration, absent a showing of cause and prejudice or fundamental miscarriage of justice.”) (quoting Polandv. Stewart, 169 F.3d 573, 578 (9th Cir. 1998)).
Because adequate and independent state rules would preclude Petitioner from returning to state court to exhaust Grounds Two, Three, and Four, the undersigned finds that Grounds Two, Three, and Four 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)).
This type of procedural default is often referred to as “technical” exhaustion because although the claim was not actually exhausted in state court, Petitioner no longer has an available state remedy. Coleman, 501 U.S. at 732 (“A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no remedies any longer ‘available' to him.”).
E. 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).
1. “Cause and Prejudice” Exception
Petitioner's status as a pro se litigant does not exempt Petitioner from the “cause and prejudice” standard. Hughes v. Idaho State Board of Corrections, 800 F.2d 905, 908 (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).
In his Reply, Petitioner argues that:
Each ground raised in Petitioner's Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus is properly exhausted in state court pursuant to Martinez v. Ryan, 132 S.Ct. 1309 (2012) because Petitioner's Rule 32 PCR counsel, in Petitioner's Rule 32 PCR initial review collateral proceeding, filed a Notice of Completion akin to an Anders brief avowing Petitioner had no colorable claims.(Doc. 30 at 1). In Martinez v. Ryan, 132 S.Ct. 1309, 1315 (2012), the United States Supreme Court held that “inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.” Martinez does not apply to habeas claims that do not allege the ineffective assistance of trial counsel. See Davila v. Davis, 137 S.Ct. 2058, 2062-63 (2017) (explaining that the narrow exception announced in Martinez “treats ineffective assistance by a prisoner's state postconviction counsel as cause to overcome the default of a single claim-ineffective assistance of trial counsel-in a single context-where the State effectively requires a defendant to bring that claim in state postconviction proceedings rather than on direct appeal.”). The Supreme Court has declined to extend Martinez's scope to procedurally defaulted claims of ineffective assistance of appellate counsel. Id. at 2064-70.
Under Martinez, “cause” to excuse a petitioner's procedural default may be found where:
(1) the claim of “ineffective assistance of trial counsel” was a “substantial” claim; (2) the “cause” consisted of there being “no counsel” or only “ineffective” counsel during the state collateral review proceeding; (3) the state collateral review proceeding was the “initial” review proceeding in respect to the “ineffective-assistance-of-trial-counsel claim”; and (4) state law requires that an “ineffective assistance of trial counsel [claim] . . . be raised in an initial-review collateral proceeding.”Trevino v. Thaler, 133 S.Ct. 1911, 1918 (2013) (quoting Martinez, 132 S.Ct. at 1318-19, 1320-21) (alterations in original).
Here, Petitioner cannot rely on Martinez to show cause for the procedural defaults as to Grounds Two, Three, and Four as those claims do not allege the ineffective assistance of trial counsel. Moreover, the procedural defaults of Grounds Two and Three occurred on the appellate level, and Martinez does not apply to claims of ineffective assistance of appellate counsel. Davila, 137 S.Ct. at 2064-70.
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). 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.
2. Miscarriage of Justice Exception
To satisfy the fundamental miscarriage of justice exception, Petitioner must show that “a constitutional violation has resulted in the conviction of one who is actually innocent.” Schlup, 513 U.S. at 327.
Ground Two states that page 8, line 7 of the June 11, 2019 sentencing transcript shows that Petitioner is innocent. (Doc. 5 at 9). Page 8, line 7 of the sentencing transcript is Petitioner's statement to the trial court that he “was an innocent man” and was “falsely accused.” (Doc. 11-5 at 10). Petitioner told the trial court:
Your Honor, throughout this case, it's frustrating. I would like you to keep in mind in this case it was no physical evidence basically in this case, you know, Your Honor, there was no surveillance. It was no pictures. It was no audio. It was no DNA on these baggies. It was no fingerprints. This officer who got on the stand, he accused me of so much, you know, but when it comes down that they said that I met this officer at a Walmart parking lot, they made excuses why they didn't have the video, you know, they're stating because they didn't want to blow their undercover. They didn't want to blow this. They didn't want to blow that. But at the end of the day, Your Honor, they had many officers in this department that could have showed that, could have proved that I was an innocent man, that I've been falsely accused of something I didn't do, could have showed the true identity of the individual who they are accusing.(Doc. 11-5 at 9-10). 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 actual innocence/Schlup gateway to excuse his procedural default. 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). Consequently, the undersigned recommends that the Court dismiss Grounds Two, Three, and Four of the Amended Petition with prejudice.
IV. FREESTANDING CLAIM OF INNOCENCE
As discussed, Ground Two of the Amended Petition asserts that Petitioner is actually innocent. (Doc. 5 at 9). In Herrera v. Collins, 506 U.S. 390, 417 (1993), the Supreme Court assumed, without deciding, that the execution of an innocent person would violate the Constitution. It is an open question whether a federal habeas petitioner in a non-capital case may raise a freestanding claim of actual innocence. See McQuiggin v. Perkins, 133 S.Ct. 1924, 1931 (2013) (stating that “[w]e have not resolved whether a prisoner may be entitled to habeas relief based on a freestanding claim of actual innocence”); District Attorney's Office v. Osborne, 557 U.S. 52, 71 (2009) (whether federal constitutional right to be released upon proof of “actual innocence” exists “is an open question”); Jones v. Taylor, 763 F.3d 1242, 1246 (9th Cir. 2014) (“We have not resolved whether a freestanding actual innocence claim is cognizable in a federal habeas corpus proceeding in the non-capital context . . . .”). Assuming that a freestanding actual innocence claim under Herrera is cognizable in this proceeding, the undersigned finds that Petitioner has not met the “extraordinarily high” threshold of “affirmatively prov[ing] that he is actually innocent.” Carriger v. Stewart, 132 F.3d 463, 477 (9th Cir. 1997) (en banc). As discussed in the preceding section, Petitioner has failed to meet the lower standard of actual innocence under the miscarriage of justice exception to excuse his procedural defaults. Id. (explaining that “the threshold for making out the ‘miscarriage of justice' exception is lower than the ‘extraordinarily high' threshold for freestanding (Herrera) claims of innocence”). To the extent the Amended Petition may be construed as presenting a freestanding innocence claim, it is recommended that the Court deny it.
V. CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that the Court deny Ground One of the Amended Petition (Doc. 5) and dismiss Grounds Two, Three, and Four with prejudice.
IT IS FURTHER RECOMMENDED that a certificate of appealability and leave to proceed in forma pauperis on appeal be denied because Petitioner has not made a substantial showing of the denial of a constitutional right as to Ground One of the Amended Petition and dismissal of the remaining grounds for relief is justified by a plain procedural bar and 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.
ATTACHMENT
SUPERIOR COURT OF ARIZONA MARICOPA COUNTY
STATE OF ARIZONA
v.
COREY HUDSON (001)
CR2017-001761-001 DT
03/22/2022
COREY HUDSON #336390 ASPC TUCSON, WINCHESTER UNIT PO BOX 24401 TUSCON AZ 85734 SHERI M LAURITANO
COURT ADMIN-CRIMINAL-PCR JUDGE WHITTEN
PCR RULING
Several motions are pending, all related to post-conviction relief proceedings. They are:
1. Motion to Reinstate Counsel and Set PCR Due Date and Order Transcripts, filed by Defendant's prior counsel on February 9, 2022;
2. Defendant's Motion for Modification of Sentence Under Rule 24.3 and 24.4 (Clerical Error), filed February 14, 2022; and
3. Defendant's Motion to Waive Counsel, filed February 28, 2022.
In the first pleading, former counsel for the Defendant indicates that she has “discussed with the client the issues of the case and the Defendant would like counsel to file the petition in (sic) his behalf.” She goes on to indicate that the defendant might have been confused and did not intend to request a dismissal of his pending post-conviction relief petitions.
That sentiment is belied by the third pleading, filed three weeks later by the Defendant himself specifically asking that that he not be represented by Ms. Lauritano. His February 28, 2022 also reaffirms that his intent was to dismiss all pending post-conviction relief petitions.
ACCORDINGLY, IT IS ORDERED denying the February 9, 2022 Motion to Reinstate Counsel and Set PCR Due Date and Order Transcripts.
IT IS FURTHER ORDERED granting the Defendant's February 28, 2022 Motion to Waive Counsel.
No good cause appearing, IT IS FURTHER ORDERED denying Defendant's February 14, 2022 Motion for Modification of Sentence.