Opinion
CV 20-00943-PHX-JJT (MHB)
09-20-2021
Darien Maurice Jackson, Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
Honorable Michelle II. Burns United States Magistrate Judge
TO THE HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT COURT:
Petitioner Darien Maurice Jackson, who is confined in the Arizona State Prison Complex, filed a pro se Fifth Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 16). Respondents filed a Limited Answer (Doc. 24). Although Petitioner has not filed a reply, Petitioner has filed a series of documents, which he identifies as supplements to his habeas petition and various notices to the Court. (Docs. 22, 23, 26, 27, 29, 30.)
BACKGROUND
Pursuant to a plea agreement, Petitioner was convicted in Maricopa County Superior Court, case #CR 2015-002475, of attempted aggravated assault and was sentenced to an eight-year term of imprisonment. (Doc. 17; Doc. 24, Exhs. A, E, F, I, J.)
The description of events as summarized by the Phoenix police report and set forth in the Probation Violation Report stated, as follows: 1
On June 3, 2015 Phoenix police officers responded to a call of a person running in and out of traffic on Indian School Road. The defendant appeared to be charging at cars while running in the middle lane, Officer Herricht pulled up in his marked police car and witnessed the defendant with the knife on the street. He gave the defendant numerous commands to drop the knife. The defendant proceeded to charge at the officer. Officer Herricht pulled his firearm out so he could defend himself and aimed at the defendant. The defendant dropped the knife about eighteen feet away. The defendant was ordered to the ground and they attempted to handcuff him but he resisted. After officers handcuffed they searched him and they found a pipe used for smoking methamphetamine. The defendant was transported to UPC for a mental health evaluation.(Exh. G.)
Petitioner was subsequently charged with aggravated assault, a dangerous class-two felony (Count 1); disorderly conduct, a dangerous class-six felony (Count 2); and resisting arrest, a class-six felony (Count 3). (Exh. A.)
On August 18, 2016, the parties entered into a plea agreement, wherein Petitioner agreed to plead no contest to amended Count 1, attempted aggravated assault. (Exhs. D, E, F.) At a subsequent change of plea hearing, the court found Petitioner's plea to be “knowingly, intelligently and voluntarily made.” (Exh. F.) The court accepted the plea and entered it on record. (Exh. F.)
At an August 18, 2016 settlement conference, the court advised Petitioner that the State would agree to amend Count 1 to attempted aggravated assault, stipulate to a sentencing range of 8 to 11 years in prison and have Petitioner serve 85-percent of the sentence, and dismiss the remaining charges. (Exh. D.)
Before sentencing, Petitioner moved to have the court withdraw his plea, claiming that he signed the plea agreement “under stress” because his counsel had “pressured” him to do so. (Exh. H.) However, at sentencing held on September 22, 2016, the court denied the motion stating, in pertinent part:
Sir, I do recall that we had a relatively lengthy settlement conference. Everything was explained to you, including the fact that if you went to trial you would be looking at so much more time than you're looking at under the plea agreement.
And I recall taking your plea. I found that it was knowingly, intelligently, and voluntarily made.2
I'm finding that the Defendant[ has] failed to show that a manifest injustice would occur if you were not allowed to withdraw from the plea agreement. So I'm denying your request to withdraw from the plea agreement.(Exh. I at 4-5.) The court then sentenced Petitioner to eight years in prison on amended Count 1 and dismissed the remaining counts. (Exh. I at 5-8.)
On October 14, 2016, Petitioner filed a notice of post-conviction relief (PCR). (Exh. K.) Petitioner claimed that his counsel was ineffective in advising him to sign the plea agreement. (Exh. K.) He alleged, among other things, that his counsel “took advantage” of his mental illness and “not understanding the plea.” (Exh. K.) Thereafter, appointed counsel filed a notice of completion notifying the court that, after a review of the record, she could find no claims for relief to raise in PCR proceedings. (Exh. L.) Petitioner was afforded the opportunity to file a pro per PCR petition and did so claiming that the plea agreement was unlawful because: he “was clearly not aware of [his] actions at the time of the offense”; he did not see the plea agreement until that day; and his counsel coerced him to sign it. (Exhs. M, N.)
On October 9, 2017, the state court summarily dismissed the PCR petition finding that Petitioner failed to state a colorable claim for relief. (Exh. Q.)
Petitioner then filed a two-paragraph document entitled “petition for/motion review” with the Arizona Court of Appeals. (Exh. BB.) The Court of Appeals responded by letter on June 27, 2019, informing Petitioner that the document did “not substantially comply with” Arizona Rule of Criminal Procedure 32.9(c). (Exh. CC.) It explained that the petition did not include “[a] copy of the [Superior Court]'s ruling[, ] … [t]he issues … decided by the [Court] that [he] wished to present to [the Court of Appeals] for review[, t]he facts material to a consideration of the issues which are presented for review[, ]” and “[t]he reasons why the petition should be granted.” (Exh. CC.) The court warned Petitioner that it would “dismiss this matter” unless he filed a petition for review “within 30 days from the date of this letter.” (Exh. CC.)
On July 22, 2019, Petitioner filed a motion to extend the time to file a petition for 3 review in superior court. (Exh. DD.) The Court of Appeals dismissed the matter on August 6, 2019, for failing to file a compliant petition for review or properly seeking an extension of time to do so. (Exh. EE.)
Petitioner, however, filed a “motion to re-instate appeal” with the Court of Appeals seeking to re-instate the matter because he inadvertently filed his motion for an extension time in superior court instead of the appellate court. (Exh. FF.) The Court of Appeals granted the motion but warned Petitioner that it would dismiss the matter unless he filed a compliant petition for review by September 25, 2019. (Exh. GG.)
On September 23, 2019, Petitioner filed a document entitled “motion to accept late filing” - again in the superior court. (Exhs. II, KK.) In an entry issued on October 21, 2019, the superior court stated that it would not act on the motion and CC'd its entry to the Court of Appeals. (Exh. KK.) The record reflects that the matter was subsequently dismissed by the Court of Appeals. (Exh. JJ.)
While his first PCR proceeding was pending, Petitioner appears to have filed a second PCR notice on April 25, 2018. (Exh. R.) In his notice, Petitioner complained that he did not deserve eight years in prison “based on old crimes” for which he had “d[one] time” and repeated that he was not in his “right mind” at the time of the offense. (Exh. R.) He also claimed that his counsel asked him whether he was “waiting for someone at the jail to see the [plea agreement]” and that counsel knew that question would “get [him] to sign [it], out of [Petitioner's] pride.” (Exh. R.) He also repeated the claims alleged in his first PCR notice. (Exh. R.)
Newly appointed counsel filed a notice of completion notifying the court that, after a review of the record, he could find no claims for relief to raise in PCR proceedings. (Exh. S.) Petitioner then filed a document entitled “motion to dismiss with prejudice, ” which the superior court construed as a PCR petition. (Exhs. T, U, V.) The State responded (Exh. X), and Petitioner then filed a series of motions and documents to be considered as part of Petitioner's second PCR proceeding (Exhs. W, Y, Z, LL, MM, NN, OO, PP). Among his claims, Petitioner alleged multiple grounds of ineffective assistance of counsel, multiple 4 grounds of prosecutorial misconduct, claims regarding false criminal history and invalid plea, claims regarding the police report and sentencing issues, and insufficient evidence. The superior court summarily dismissed Petitioner's claims again finding that he failed to state a colorable claim which would entitle him to relief. (Exh. QQ.) The record reflects that Petitioner did not file a petition for review in the Arizona Court of Appeals.
In his Fifth Amended Petition, Petitioner raises nine grounds for relief:
(1) Petitioner received ineffective assistance of counsel, in violation of the Fifth, Sixth, and Fourteenth Amendments;
(2) The prosecutors engaged in misconduct, in violation of the Fifth and Fourteenth Amendments;
(3) Petitioner's Fifth, Sixth, and Fourteenth Amendment rights were violated regarding newly discovered evidence;
(4) Petitioner's plea was invalid, in violation of the Sixth and Fourteenth Amendments;
(5) The police reports were “false, ” in violation of the Fifth, Sixth, and Fourteenth Amendments;
(6) Petitioner was denied due process, in violation of the Fifth, Sixth, and Fourteenth Amendments;
(7) There was insufficient evidence, in violation of the Fifth, Sixth, and Fourteenth Amendments;
(8) Petitioner's Fifth, Sixth, and Fourteenth Amendment rights were violated regarding his criminal history; and
(9) Petitioner received an aggravated sentence, in violation of the Eighth and Fourteenth Amendments.(Docs. 17, 15.)
In their Limited Answer, Respondents argue that Petitioner's claims are procedurally defaulted. Although Petitioner has not filed a reply, he has filed a series of documents the Court has considered as part of Petitioner's habeas petition. The Court identifies the documents and gives a brief description of said documents as follows: 5
• “motion to supplement new evidence” (Doc. 22) - Petitioner supplements his ineffective assistance and prosecutorial misconduct claims with “evidence” of deceptive practices
• “motion to supplement more …” (Doc. 23) - Petitioner presents more argument in support if his ineffective assistance and prosecutorial misconduct claims
• “notice, I wrote the (FBI) Federal Bureau of Investigation” (Doc. 26) - Petitioner files a notice with the Court informing it that he submitted a letter to the FBI regarding his criminal history
• “this letter is in regard to information I sent to the FBI. I mentioned someone intentionally, deliberately, and maliciously altered my criminal history” (Doc. 27) - Petitioner writes a letter to the Court stating that the prosecutor altered his criminal history and requests that the Court reverse his plea and release him
• “notice of criminal intent by prosecutor and public defender” (Doc. 29) - Petitioner again writes the Court informing it of the misconduct by the prosecutor and his counsel regarding the altering of his criminal history
• “motion update Federal Bureau of Investigation's investigation” (Doc. 30) - Petitioner provides an update to the Court regarding his communication with the FBI; the FBI appears to state that Petitioner failed to provide sufficient information
DISCUSSION
A. Exhaustion and Procedural Default
A state prisoner must exhaust his remedies in state court before petitioning for a writ of habeas corpus in federal court. See 28 U.S.C. § 2254(b)(1) and (c); Duncan v. Henry, 513 U.S. 364, 365-66 (1995); McQueary v. Blodgett, 924 F.2d 829, 833 (9th Cir. 1991). To properly exhaust state remedies, a petitioner must fairly present his claims to the state's highest court in a procedurally appropriate manner. See O'Sullivan v. Boerckel, 526 U.S. 838, 839-46 (1999). In Arizona, a petitioner must fairly present his claims to the Arizona Court of Appeals by properly pursuing them through the state's direct appeal process or through appropriate post-conviction relief. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994).
Proper exhaustion requires a petitioner to have “fairly presented” to the state courts the exact federal claim he raises on habeas by describing the operative facts and federal 6 legal theory upon which the claim is based. See, e.g., Picard v. Connor, 404 U.S. 270, 275-78 (1971) (“[W]e have required a state prisoner to present the state courts with the same claim he urges upon the federal courts.”). A claim is only “fairly presented” to the state courts when a petitioner has “alert[ed] the state courts to the fact that [he] was asserting a claim under the United States Constitution.” Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000) (quotations omitted); see Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996) (“If a petitioner fails to alert the state court to the fact that he is raising a federal constitutional claim, his federal claim is unexhausted regardless of its similarity to the issues raised in state court.”).
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 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.”). Similarly, 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, 223 F.3d at 988 (quotations omitted); see Picard, 404 U.S. at 275-77.
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).
Additionally, a federal habeas court generally may not review a claim if the state court's denial of relief rests upon an independent and adequate state ground. See Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). The United States Supreme Court has explained: 7
In the habeas context, the application of the independent and adequate state ground doctrine is grounded in concerns of comity and federalism. Without the rule, a federal district court would be able to do in habeas what this Court could not do on direct review; habeas would offer state prisoners whose custody was supported by independent and adequate state grounds an end run around the limits of this Court's jurisdiction and a means to undermine the State's interest in enforcing its laws.Id. at 730-31. A petitioner who fails to follow a state's procedural requirements for presenting a valid claim deprives the state court of an opportunity to address the claim in much the same manner as a petitioner who fails to exhaust his state remedies. Thus, in order to prevent a petitioner from subverting the exhaustion requirement by failing to follow state procedures, a claim not presented to the state courts in a procedurally correct manner is deemed procedurally defaulted, and is generally barred from habeas relief. See id. at 731-32.
Claims may be procedurally barred from federal habeas review based upon a variety of factual circumstances. If a state court expressly applied a procedural bar when a petitioner attempted to raise the claim in state court, and that state procedural bar is both “independent” and “adequate” - review of the merits of the claim by a federal habeas court is ordinarily barred. See Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) (“When a state-law default prevents the state court from reaching the merits of a federal claim, that claim can ordinarily not be reviewed in federal court.”) (citing Wainwright v. Sykes, 433 U.S. 72, 87-88 (1977) and Murray v. Carrier, 477 U.S. 478, 485-492 (1986)).
A state procedural default rule is “independent” if it does not depend upon a federal constitutional ruling on the merits. See Stewart v. Smith, 536 U.S. 856, 860 (2002).
A state procedural default rule is “adequate” if it is “strictly or regularly followed.” Johnson v. Mississippi, 486 U.S. 578, 587 (1988) (quoting Hathorn v. Lovorn, 457 U.S. 255, 262-53 (1982)).
Moreover, if a state court applies a procedural bar, but goes on to alternatively address the merits of the federal claim, the claim is still barred from federal review. See Harris v. Reed, 489 U.S. 255, 264 n.10 (1989) (“[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and 8 independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law. ... In this way, a state court may reach a federal question without sacrificing its interests in finality, federalism, and comity.”) (citations omitted); Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003) (“A state court's application of a procedural rule is not undermined where, as here, the state court simultaneously rejects the merits of the claim.”) (citing Harris, 489 U.S. at 264 n.10).
A procedural bar may also be applied to unexhausted claims where state procedural rules make a return to state court futile. See Coleman, 501 U.S. at 735 n.1 (claims are barred from habeas review when not first raised before state courts and those courts “would now find the claims procedurally barred”); Franklin v. Johnson, 290 F.3d 1223, 1230-31 (9th Cir. 2002) (“[T]he procedural default rule barring consideration of a federal claim ‘applies only when a state court has been presented with the federal claim,' but declined to reach the issue for procedural reasons, or ‘if it is clear that the state court would hold the claim procedurally barred.'”) (quoting Harris, 489 U.S. at 263 n.9).
Specifically, in Arizona, claims not previously presented to the state courts via either direct appeal or collateral review are generally barred from federal review because an attempt to return to state court to present them is futile unless the claims fit in a narrow category of claims for which a successive petition is permitted. See Ariz.R.Crim.P. 32.1, 32.2(a), 33.1, 33.2 (precluding claims not raised on appeal or in prior petitions for post-conviction relief), 32.4 and 33.4 (time bar). Arizona courts have consistently applied Arizona's procedural rules to bar further review of claims that were not raised on direct appeal or in prior Rule 32 post-conviction proceedings. See, e.g., Stewart, 536 U.S. at 860 (determinations made under Arizona's procedural default rule are “independent” of federal law); Smith v. Stewart, 241 F.3d 1191, 1195 n.2 (9th Cir. 2001) (“We have held that Arizona's procedural default rule is regularly followed [“adequate”] in several cases.”) 9 (citations omitted), reversed on other grounds, Stewart v. Smith, 536 U.S. 856 (2002); see also Ortiz v. Stewart, 149 F.3d 923, 931-32 (9th Cir. 1998) (rejecting argument that Arizona courts have not “strictly or regularly followed” Rule 32 of the Arizona Rules of Criminal Procedure); State v. Mata, 185 Ariz. 319, 334-36, 916 P.2d 1035, 1050-52 (Ariz. 1996) (waiver and preclusion rules strictly applied in post-conviction proceedings).
Effective January 1, 2020, former Arizona Rules of Criminal Procedure 32 and 33 were abrogated, and new Rules 32 and 33 were adopted. As a general matter, the substance of former Rule 32 was divided among the two new rules based on whether a defendant was convicted at trial (new Rule 32) or had pled guilty or no contest (new Rule 33).
Because the doctrine of procedural default is based on comity, not jurisdiction, federal courts retain the power to consider the merits of procedurally defaulted claims. See Reed v. Ross, 468 U.S. 1, 9 (1984). The federal court will not consider the merits of a procedurally defaulted claim unless a petitioner can demonstrate that a miscarriage of justice would result, or establish cause for his noncompliance and actual prejudice. See Schlup v. Delo, 513 U.S. 298, 321 (1995); Coleman, 501 U.S. at 750-51; Murray, 477 U.S. at 495-96. Pursuant to the “cause and prejudice” test, a petitioner must point to some external cause that prevented him from following the procedural rules of the state court and fairly presenting his claim. “A showing of cause must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded [the prisoner's] efforts to comply with the State's procedural rule. Thus, cause is an external impediment such as government interference or reasonable unavailability of a claim's factual basis.” Robinson v. Ignacio, 360 F.3d 1044, 1052 (9th Cir. 2004) (citations and internal quotations omitted). Ignorance of the State's procedural rules or other forms of general inadvertence or lack of legal training and a petitioner's mental condition do not constitute legally cognizable “cause” for a petitioner's failure to fairly present his claim. Regarding the “miscarriage of justice, ” the Supreme Court has made clear that a fundamental miscarriage of justice exists when a Constitutional violation has resulted in the conviction of one who is actually innocent. See Murray, 477 U.S. at 495-96. Additionally, pursuant to 28 U.S.C. § 2254(b)(2), the court may dismiss plainly meritless claims regardless of whether the claim was properly exhausted in state court. See Rhines v. Weber, 544 U.S. 269, 277 (2005) (holding that a stay is inappropriate in federal court to 10 allow claims to be raised in state court if they are subject to dismissal under § 2254(b)(2) as “plainly meritless”).
B. Grounds One Through Nine
The Court finds that although, construed liberally, Petitioner presented the claims he now raises on habeas in his various PCR petitions, motions, and other documents considered as part of Petitioner's PCR proceedings - the record is clear that Petitioner never filed any petition for review to the Arizona Court of Appeals. As such, Petitioner failed to fairly present any of his claims. Failure to fairly present these claims has resulted in the procedural default of the claims because Petitioner is now barred from returning to state court. See Ariz.R.Crim.P. 33.1, 33.2, 33.4.
Although a procedural default may be overcome upon a showing of cause and prejudice or a fundamental miscarriage of justice, see Coleman, 501 U.S. at 750-51, Petitioner failed to file a reply, and has not established that any exception to procedural default applies. And, his status as an inmate, lack of legal knowledge, and limited legal resources do not establish cause to excuse the procedural default. 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 reliance upon jailhouse lawyers did not constitute cause). Accordingly, Petitioner has not shown cause for his procedural default.
Petitioner has also not established a fundamental miscarriage of justice. A federal court may review the merits of a procedurally defaulted claim if the petitioner demonstrates that failure to consider the merits of that claim will result in a “fundamental miscarriage of justice.” Schlup, 513 U.S. at 327. The standard for establishing a Schlup procedural gateway claim is “demanding.” House v. Bell, 547 U.S. 518, 538 (2006). The petitioner must present “evidence of innocence so strong that a court cannot have confidence in the outcome of the trial.” Schlup, 513 U.S. at 316. Under Schlup, to overcome the procedural hurdle created by failing to properly present his claims to the state courts, a petitioner “must 11 demonstrate that the constitutional violations he alleges ha[ve] probably resulted in the conviction of one who is actually innocent, such that a federal court's refusal to hear the defaulted claims would be a ‘miscarriage of justice.'” House, 547 U.S. at 555-56 (quoting Schlup, 513 at 326, 327). To meet this standard, a petitioner must present “new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.” Schlup, 513 U.S. at 324. The petitioner has the burden of demonstrating that “it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.” Id. at 327. As noted, Petitioner has filed a series of documents, which he identifies as supplements to his habeas petition and various notices to the Court. Much of what he presents appears unintelligible or irrelevant to the instant habeas proceedings. To the extent, Petitioner claims as new evidence that his counsel and the prosecutor were deceptive by using the wrong police report, failed to request the correct police report, or intentionally altered his criminal history (Docs. 22, 23, 26, 27, 29, 30) - the Court finds that Petitioner's conclusory statements and lack of “new reliable evidence” fail to establish a sufficient showing of actual innocence to demonstrate a miscarriage of justice. Therefore, Petitioner cannot excuse his procedural defaults on this basis.
In Martinez, the Supreme Court created a “narrow exception” to the principle that “an attorney's ignorance or inadvertence in a postconviction proceeding does not qualify as cause to excuse a procedural default.” Martinez v. Ryan, 566 U.S. 1, 9 (2012). The Court held that “[i]nadequate 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.” Id.
“Cause” is established under Martinez when: (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 12 “ineffective assistance of trial counsel [claim] ... be raised in an initial-review collateral review proceeding. Trevino v. Thaler, 569 U.S. 413, 423 (2013) (citing Martinez).
The Martinez exception applies only to the ineffectiveness of post-conviction counsel in the initial post-conviction review proceeding. It “does not extend to attorney errors in any proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective assistance at trial.” 566 U.S. at 16. Rather, Martinez is concerned that, if ineffective assistance of counsel claims were not brought in the collateral proceeding that provided the first occasion to raise such claims, then the claims could not be brought at all. See id. at 9-11. Therefore, a petitioner may not assert “cause” to overcome the procedural bar based on attorney error that occurred in “appeals from initial-review collateral proceedings, second or successive collateral proceedings, and petitions for discretionary review in a State's appellate courts.” Id. at 16.
Since the Martinez exception applies only to the ineffectiveness of post-conviction counsel in the initial post-conviction review proceeding, Martinez does not apply to any of Petitioner's grounds for relief. As such, Petitioner cannot establish cause for his procedural default on that basis. See Martinez, 566 U.S. at 16 (Martinez “does not extend to attorney errors in any proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective assistance at trial.” A petitioner may not assert “cause” to overcome the procedural bar based on attorney error that occurred in “appeals from initial-review collateral proceedings, second or successive collateral proceedings, and petitions for discretionary review in a State's appellate courts.”).
CONCLUSION
Having determined that Petitioner's claims are procedurally defaulted without an excuse, the Court will recommend that Petitioner's Fifth Amended Petition for Writ of Habeas Corpus (Doc. 16) be denied and dismissed with prejudice.
IT IS THEREFORE RECOMMENDED that Petitioner's Fifth Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 16) be DENIED and DISMISSED WITH PREJUDICE; 13
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because the dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed seventeen (17) pages in length. Failure timely to file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure timely to file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule 72, Federal Rules of Civil Procedure. 14