Opinion
No. CV-18-02569-PHX-RCC (DTF)
11-25-2019
David Lee Lamb, Petitioner, v. David Shinn, Respondent.
REPORT AND RECOMMENDATION
Petitioner David Lee Lamb (Lamb or Petitioner), formerly confined in the Arizona State Prison Complex, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Petition). (Doc. 1.) Before the Court are the Petition, Respondent's Answer to Petition for Writ of Habeas Corpus (Answer) and Petitioner's reply (Docs. 2, 12.) This matter was referred to Magistrate Judge Ferraro for Report and Recommendation. (Doc. 8.) As more fully set forth below, the Magistrate Judge recommends that the district court, after its independent review, dismiss the Petition.
BACKGROUND
On April 3, 2008, Petitioner was charged in the Arizona Superior Court, Maricopa County in CR 2008-006214 with five drug-related offenses stemming from a wiretap investigation known as Operation Sidewinder. (Doc. 13-5 at 136.)
On April 1, 2009, the grand jury returned an indictment charging Petitioner in CR 2009-006230 with one count of possession or use of a narcotic drug (cocaine), one count of possession or use of marijuana and one count of threatening or intimidating by a street gang member. (Doc. 13-1 at 11-12.)
On June 23, 2009, Petitioner was convicted by a jury in CR 2009-006230 of possession or use of a narcotic drug and possession or use of marijuana. The jury acquitted Petitioner of the threatening or intimidating charge. (Doc. 13-1 at 232-36.) After his conviction in CR 2009-06230, the state dismissed the charges in CR 2008-006214. (Doc. 13-5 at 154.) On July 24, 2009, Petitioner was sentenced to a twelve-year term of imprisonment. (Doc. 13-1 at 240.)
Petitioner timely appealed his conviction to the Arizona Court of Appeals arguing that the trial court erred in denying his motion to suppress without holding an evidentiary hearing, the trial court erred in determining that he was not eligible for mandatory probation under Proposition 200, and that he was "due additional presentence incarceration credit." (Doc. 13-3 at 147.) The appeal was fully briefed. Id. at 178-242.
On June 9, 2011, the court of appeals vacated Petitioner's convictions and remanded the case to the trial court "with directions to conduct an evidentiary hearing on [Petitioner's] motion to suppress, and to conduct such other proceedings as are necessary for the resolution of this case." (Doc. 14-1 at 1-9.) The court of appeals affirmed Petitioner's ineligibility for mandatory probation under Proposition 200. Id.
The state filed a Motion for Reconsideration urging the court of appeals to issue a new remedy; namely, "to either affirm the convictions subject to the outcome of the evidentiary hearing[] or stay the appeal and remand for an evidentiary hearing." (Doc. 13-4 at 23-33.) The state's motion was fully briefed. Id. at 39-58.
On August 16, 2011, the court of appeals issued a new decision conditionally affirming Petitioner's convictions and remanding the matter to the trial court with the instruction that the trial court conduct an evidentiary hearing on Petitioner's motion to suppress evidence due to an illegal stop, detention and arrest. Id. at 60-72.
On October 17, 2011, Petitioner, through counsel, filed a Petition for Review in the Arizona Supreme Court asking that court "to review that portion of the decision of the [c]ourt of [a]ppeals ... affirming [Petitioner's] ineligibility for mandatory probation under ... Proposition 200." Id. at 74-96. The petition for review was denied. Id. at 101.
As directed by the court of appeals, on May 4th and 10th, 2012, the trial court held an evidentiary hearing on Petitioner's motion to suppress. (Doc. 13-4 at 116-242.) On May 9, 2012, Petitioner filed a supplement to his motion to suppress. (Doc. 13-5 at 10-22.) On May 15, 2012, the trial court denied Petitioner's motion to suppress. Id. at 24-28.
Petitioner appealed the trial court's denial of his motion to suppress to the court of appeals. (Doc. 13-5 at 30-63.) The appeal was fully briefed. (Doc. 13-5 at 66-159; Doc. 13-6 at 2-40.) On July 9, 2013, the Arizona Court of Appeals affirmed the trial court's denial of the motion to suppress. (Doc. 13-6 at 42-54.)
On August 8, 2013, Petitioner sought review in the Arizona Supreme Court. Id. at 56-85. The petition for review was denied. Id. at 88.
On March 6, 2014, Petitioner filed a notice of post-conviction relief (PCR) in the trial court. Id. at 108-112. Petitioner timely filed a pro se PCR petition and the petition was fully briefed. (Doc. 13-6 at 118-277; Doc. 13-7 at 2-37.) On July 7, 2015, the trial court denied Petitioner's PCR petition. (Doc. 13-7 at 39-40.)
Petitioner timely sought review of the trial court's denial of his PCR petition, the state responded, and Petitioner replied. (Doc. 13-7 at 42-215; Doc. 13-8 at 2-11.) On July 13, 2017, the Arizona Court of Appeals granted review but denied relief. (Doc. 13-8 at 13-16.) Petitioner sought additional time to seek review in the Arizona Supreme Court. Id. However, on November 14, 2017, the Arizona Supreme Court dismissed the proceedings because Petitioner failed to file any petition for review. Id.
On August 6, 2018, Petitioner deposited the instant Petition in the prison mailing system claiming:
Ground One: The trial court violated his rights under the Fourth and Fourteenth Amendments when it denied his suppression motion.(Doc. 1 at 6-7, 9-11, 15.) Respondents filed their Answer urging that the claim alleged in Ground One is non-cognizable on habeas review and that the claims alleged in Grounds Two and Three are procedurally defaulted without excuse and barred from federal habeas review. (Doc. 13 at 34-69.) As explained below, this Court agrees with Respondents.
Ground Two: Petitioner's right to present a defense, right to due process and right to a fair trial were violated when the Arizona Court of Appeals remanded his case for a suppression hearing after he had already been convicted at trial.
Ground Three: Petitioner's right to present a defense, right to due process and right to a fair trial were violated when the state unlawfully introduced evidence that was not procedurally disclosed.
ANALYSIS
The AEDPA
Because the Petition was filed after April 24, 1996, the Anti-Terrorism and Effective Death Penalty Act (AEDPA) governs. See Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001) (citing Smith v. Robbins, 528 U.S. 259, 267 n.3 (2000)). The AEDPA's one-year statute of limitations applies. See 28 U.S.C. § 2244(d)(1). See Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). The limitations period begins to run on the date when "the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A).
Petitioner had until October 14, 2017, to file a petition for review in the Arizona Supreme Court. Because he did not file a petition for review the Arizona Supreme Court dismissed the proceedings in that court on November 14, 2017. The Petition was deposited in the prison mailing system on August 6, 2018 and is timely.
Ground One is Non-Cognizable
Petitioner claims in Ground One that the trial court's denial of his motion to suppress violated his constitutional rights under the Fourth Amendment. (Doc. 1 at 6.) Relying upon Stone v. Powell, 428 U.S. 465 (1976), Respondents argue that Fourth Amendment claims, like the one raised in Ground One, are generally not cognizable in federal habeas cases. (Doc. 13 at 34-38.)
"[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Stone v. Powell, 428 U.S. 465, 494-95 (1976). The Ninth Circuit has recognized that Stone bars habeas relief based upon claims challenging the constitutionality of the state prisoner's arrest and seizure. See Terrovona v. Kincheloe, 912 F.2d 1176, 1178 & n.2 (9th Cir. 1990) (collecting cases from the First, Second, Sixth, Seventh, Eighth, and Eleventh circuits applying Stone to challenges against warrantless arrests); Myers v. Rhay, 577 F.2d 504, 509 (9th Cir. 1978) (applying Stone to arrests pursuant to a warrant).
"The relevant inquiry [under Stone] is whether petitioner had the opportunity to litigate his claim, not whether he did in fact do so or even whether the claim was correctly decided." Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir 1996) (citing Gordon v. Duran, 895 F.2d 610, 613 (9th Cir. 1990); and Locks v. Sumner, 703 F.2d 403, 408 (9th Cir. 1983)) (emphasis added). "Consequently, once it is established that a petitioner has had an opportunity to litigate his or her Fourth Amendment claim (whether or not he or she took advantage of the state's procedure), the court's denial of the claim is a conclusive determination that the claim will never present a valid basis for federal habeas relief." Graham v. Costello, 299 F.3d 129, 134 (2d Cir. 2002).
Here, Petitioner, through counsel, filed a suppression motion challenging the constitutionality of his detention and the seizure of drugs that were found on him. See Doc. 13-1 at 64-67 (May 5, 2009, motion to suppress). Following Petitioner's conviction at trial and during his first direct-review proceedings, the Arizona Court of Appeals agreed with Petitioner that the trial court had erroneously upheld the challenged search and seizure without holding an evidentiary hearing. The court of appeals issued its (second) decision conditionally affirming Petitioner's convictions and remanding the case for a suppression hearing. (Doc. 13-4 at 60-72.)
On remand, the trial court conducted evidentiary hearing over two days. See Doc. 13-4 at 116-187 (May 4, 2012 transcript) and Doc. 13-4 at 189-242 (May 10, 2012 transcript). On May 9, 2012, Petitioner, through counsel, filed a supplement to his motion to suppress. (Doc. 13-5 at 10-22.) Thereafter, the trial court issued an order denying Petitioner's request to suppress the evidence. Id. at 24-28.
Petitioner appealed the trial court's denial of his motion to suppress to the Arizona Court of Appeals. Id. at 30-63. The court of appeals affirmed the trial court's ruling denying Petitioner's motion to suppress. (Doc. 13-6 at 42-54.) Petitioner's petition for review in the Arizona Supreme Court was denied. Id. at 88.
Considering the foregoing, this Court concludes that Petitioner had an opportunity to litigate his Fourth Amendment claim. Indeed, he took advantage of that opportunity. Petitioner enjoyed success in the court of appeals on his first direct review in that the court of appeals remanded the matter to the trial court with instructions to conduct an evidentiary hearing on his motion to suppress. The trial court then did so over the course of two days. After the trial court denied his motion to suppress, Petitioner again appealed and the court of appeals affirmed the trial court's decision.
In his reply, Petitioner argues that the trial court's suppression hearing was not fair because it was conducted after he was found guilty "and subject to an inherent bias." (Doc. 15 at 2.) This Court disagrees with Petitioner's unsupported assertion that the suppression hearing was "subject to an inherent bias" because the hearing was conducted after he was found guilty. Petitioner may be suggesting that the trial court had some unidentified incentive to deny his motion to suppress because the jury already found him guilty on two of the three counts. This Court notes that the suppression hearing and the trial were conducted by different trial judges and any suggestion that one or both of the trial judges had an "inherent bias" is pure speculation. See Docs. 13-2 at 2 (trial judge R. Steinle) and 13-5 at 24 (evidentiary hearing judge P. Reinstein).
If Petitioner is suggesting that the jury was "inherent[ly] biased," this argument is misplaced as well as unsupported. As the court of appeals' decision makes clear, if the motion to suppress would have been granted then Petitioner's convictions would be vacated thereby rendering the jury's guilty verdict a nullity. Alternatively, if the motion to suppress were denied (as it was), then there was no error in the jury's consideration of the evidence and the convictions remain in place.
In sum, Petitioner had a full opportunity to litigate his Fourth Amendment search and seizure claim in the state court. Consequently, this Court determines that Petitioner's claim in Ground One is non-cognizable on habeas review.
Grounds Two and Three are Procedurally Defaulted Without Excuse
Petitioner claims in Ground Two that the Arizona Court of Appeals violated his right to present a defense, right to due process and right to a fair trial when it remanded his case to the trial court for a suppression hearing after he had been convicted. (Doc. 1 at 7, 11.) Petitioner claims in Ground Three that the state was improperly allowed to refresh police detective Banks' recollection at the suppression hearing with a document that he alleges had not been disclosed to defense counsel until just prior to the suppression hearing. Id. at 9-10. Respondents argue that Petitioner's claims in Grounds Two and Three are procedurally defaulted without excuse and that they also fail on the merits. (Doc. 13 at 52-76.)
As explained below, this Court determines that the claims alleged in Grounds Two and Three are procedurally defaulted without excuse and barred from federal habeas review.
Exhaustion/Procedural Default
A federal court may only consider a petitioner's application for a writ of habeas corpus if "the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A); see Coleman v. Thompson, 501 U.S. 722, 731 (1991); Wooten v. Kirkland, 540 F.3d 1019, 1023 (9th Cir. 2008). Proper exhaustion requires a petitioner to fairly present his federal claims to the trial level and to "invok[e] one complete round of the State's established appellate review process," presenting the same federal claim to each court in a procedurally appropriate manner. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see also Wooten, 540 F.3d at 1025 ("The rule of exhaustion requires that a habeas petitioner 'fairly present' his federal claims to each appropriate state court.").
In Arizona, a prisoner does not exhaust a claim for federal review in a non-capital case unless he has presented it to the Arizona Court of Appeals. See Castillo v. McFadden, 399 F.3d 993, 998 & n.3 (9th Cir. 2005) (citing Swoopes v. Sublett, 196 F.3d 1008, 1010-11 (9th Cir. 1999)). A claim is only "fairly present[ed]" when a petitioner "clearly state[s] the federal basis and federal nature of the claim, along with relevant facts." Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011); see also Duncan v. Henry, 513 U.S. 364, 365-66 (1995) ("If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution."). 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) (internal citation omitted). "[T]he petitioner must make the federal basis of the claim 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." Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000) (emphasis added; internal citations omitted), modified by 247 F.3d 904 (9th Cir. 2001); see also Rose v. Palmateer, 395 F.3d 1108, 1111 (9th Cir. 2005) ("[P]etitioners must plead their claims with considerable specificity before the state courts in order to satisfy the exhaustion requirement.").
A corollary to the exhaustion requirement, the "procedural default doctrine"—which limits a petitioner from proceeding in federal court where his claim is procedurally barred in state court—"has its roots in the general principle that federal courts will not disturb state court judgments based on adequate and independent state law procedural grounds." Dretke v. Haley, 541 U.S. 386, 392 (2004); see also Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) ("When a state-law default prevents the state court from reaching the merits of a federal claim, that claim can ordinarily not be reviewed in federal court."). There are two types of procedural bars, "express and implied." Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010).
First, a claim is technically exhausted, but procedurally defaulted, when a petitioner attempted to raise it in state court and the state court expressly applied a procedural bar resting on an independent and adequate state law ground to avoid considering the merits of the claim. See Nunnemaker, 501 U.S. at 802-05; see also Insyxiengmay v. Morgan, 403 F.3d 657, 665 (9th Cir. 2005) (stating procedural default "applies to bar federal habeas review when the state court has declined to address the petitioner's federal claims because he failed to meet state procedural requirements") (internal quotation omitted). In determining whether the state courts have imposed a procedural bar, the district court reviews the "last reasoned opinion" of the state courts. Nunnemaker, 501 U.S. at 803; Lambright v. Stewart, 241 F.3d 1201, 1205 (9th Cir. 2001).
Second, a claim is also technically exhausted, but implicitly procedurally defaulted, when a petitioner has not raised it in state court, but a return to state court to exhaust it would be futile in light of state procedural rules. See Boerckel, 526 U.S. at 848 (finding claims procedurally defaulted because habeas petitioner was time-barred from presenting his claims in state court); Coleman, 501 U.S. at 735 n.1 (noting that claims are barred from habeas review when not first raised before state courts and those courts "would now find the claims procedurally barred"); Hurles v. Ryan, 752 F.3d 768, 779-80 (9th Cir. 2014) ("The procedural default rule barring consideration of a federal claim applies if it is clear that the state court would hold the claim procedurally barred.") (internal quotation and alterations omitted).
In Arizona, claims not previously presented to the state courts via either direct appeal or collateral review are generally barred from federal review because an attempt to return to state court to present them is futile unless the claims fit into a narrow category of claims for which a successive PCR petition is permitted. See Ariz. R. Crim. P. 32.1(d)-(h), 32.2(a) & (b) (successive petition for post-conviction relief are limited to claims of being held in custody beyond sentence expiration, newly-discovered material facts, requests for delayed appeal, significant change in the law retroactively applicable that would probably overturn conviction or sentence, and actual innocence).
Besides preclusion under Arizona Rule of Criminal Procedure 32.2, Arizona has a time bar requiring a notice for a rule 32 of-right proceeding to be filed within 90 days after the entry of judgment and sentence or within 30 days "after the issuance of the final order or mandate by the appellate court in the petitioner's first petition for post-conviction relief proceeding." See Ariz. R. Crim. P. 32.4(a); Moreno v. Gonzalez, 116 F.3d 409, 410 (9th Cir. 1997) (recognizing untimeliness bar under rule 32.4(a) as a basis for dismissing an Arizona petition for post-conviction relief, distinct from preclusion under Rule 32.2(a)); State v. Lopez, 323 P.3d 1164, 1165-66, ¶¶ 5-9 (Ariz. App. 2014) (discussing differences between the time-bar rule, rule 32.4(a), and the waiver rule, rule 32.2(a)(3)). As with the preclusion bar, an untimely PCR notice is only permitted for a narrow category of claims—the same narrow category of claims that are exempted from the preclusion bar. See Ariz. R. Crim. P. 32.1(d)-(h), 32.4(a). If a claim does not fall within one of the exceptions in rule 32 or is filed outside the time limits, the successive PCR notice is subject to summary dismissal. See, e.g., State v. Diaz, 269 P.3d 717, 719-21, ¶¶ 5-13 (Ariz. App. 2012); State v. Rosario, 987 P.2d 226, 228, ¶ 7 (Ariz. App. 1999); State v. Jones, 897 P.2d 734, 735-36 (Ariz. App. 1995).
Because Arizona's preclusion rule (rule 32.2) and time-bar rule (rule 32.4) are both "independent" and "adequate," either when specifically applied to a claim by an Arizona court, or when precluding a return to state court to exhaust a claim, they procedurally bar subsequent review of the merits of that claim by a federal habeas court. See, e.g., Stewart v. Smith, 536 U.S. 856, 860-61 (2002) (finding determinations made under Arizona's procedural default rule are "independent" of federal law); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002) (finding unexhausted claims were procedurally defaulted because petitioner was "now time-barred under Arizona law from going back to state court"); Ortiz v. Stewart, 149 F.3d 923, 931-32 (9th Cir. 1998) (rejecting argument that Arizona courts have not "strictly or regularly followed" rule 32); Carriger v. Lewis, 971 F.2d 329, 333 (9th Cir. 1992) (rejecting assertion that Arizona courts' application of procedural default rules had been "unpredictable and irregular"); State v. Mata, 916 P.2d 1035, 1050-52 (Ariz. 1996) (noting that waiver and preclusion rules are strictly applied in post-conviction proceedings). A state procedural default rule is "independent" if it does "not depend upon a federal constitutional ruling on the merits." Stewart, 536 U.S. at 860. A state procedural default rule is "adequate" if it is "strictly or regularly followed." Johnson v. Mississippi, 486 U.S. 578, 587 (1988) (internal quotation omitted).
Ground Two: Petitioner contends that the court of appeals violated his rights to present a defense, due process and receive a fair trial by remaining his case for a suppression hearing after he had already been convicted at trial. Petitioner urges:
The constitutional and procedural hearing to suppress evidence prior to trial (element of offense) was held more than three years after Petitioner had been found guilty of the charges, in a trial by a jury. Clearly, the trial was held before the legality of the evidence was determined, the cart before the horse. The Petitioner is being unlawfully confined for the trial court's denial of due process.(Doc. 1 at 11.)
The first opportunity that Petitioner had to present this claim in the state court was in his response to the state's motion for reconsideration during the first round of Petitioner's direct review proceedings. After the court of appeals issued its first decision vacating his convictions and remanding the matter to the trial court, the state filed a motion for reconsideration urging the court of appeals to issue the remedy of conditionally affirming Petitioner's convictions pending the outcome of an evidentiary hearing on his motion to suppress. (Doc. 13-4 at 23-28.)
Petitioner, through counsel, filed a response to the state's motion for reconsideration stating, "[t]his court has discretion to order a limited remand for an evidentiary hearing or grant a new trial depending on the facts of the individual case." Id. at 39-40. However, absent from Petitioner's four-page response is any citation to Brady v. Maryland, 373 U.S. 83 (1963). Petitioner also failed to mention the Due Process Clause to the United States Constitution. (Doc. 13-4 at 39-43.)
Instead, Petitioner argued the facts of his case urging that "th[e] record demands a re-trial, regardless of the outcome of the suppression issue, so a jury can fairly decide the drug possession charges without discussion of gangs and alleged physical threats to law enforcement at the jail." Id. at 42. After the court of appeals granted the state's motion for reconsideration, Petitioner sought review in the Arizona Supreme Court. However, Petitioner failed to present the claim alleged in Ground Two in his petition for review in the Arizona Supreme Court. See Id. at 74-80.
Considering the foregoing, this Court determines that Petitioner failed to fairly present the claim alleged in Ground Two of the Petition to the state courts.
Ground Three: Petitioner contends that the state was allowed to refresh a police detective's recollection at the suppression hearing with documents that he argues were not disclosed to his defense counsel until just before the motion to suppress hearing began in violation of his due process right. Petitioner argues:
At the hearing, police officer's testimony evidence was presented that was in conflict with the trial evidence. Also, there was non-disclosed evidence (Brady) presented at the hearing (Exs. 4, 10) that was exculpatory and impeaching. However, Petitioner was denied his due process right to challenge or present evidence at his trial, and for a complete defense and a fair trial.(Doc. 1 at 11.)
In Petitioner's appeal of the trial court's denial of his motion to suppress, Petitioner claimed that the trial court erred when it permitted the state to introduce evidence that was not timely disclosed (exhibits 9 and 10). (Doc. 13-5 at 56.) In his opening brief, Petitioner maintained that the state's alleged non-disclosure "violated [his] right to a fair hearing under the Arizona and United States due process clauses and the procedural protections afforded [him] under the Arizona Rules of Criminal Procedure." Id. at 59.
In rejecting Petitioner's claim, the court of appeals held:
4. Lamb also argues for the first time on appeal that the late disclosure violated his due process right to a fair hearing. We find that he has abandoned and waived this issue because he has failed to cite pertinent legal authority or make significant legal argument to support his claim. See State v. Moody, 208 Ariz. 424, 452 n.9, ¶ 101, 94 P.3d 1119, 1147, n.9 (2004) (failure to present "significant arguments, supported by authority" in the opening brief waives the issue).(Doc. 13-6 at 52.)
This determination by the court of appeals that Petitioner abandoned and waived his due process claim constitutes an independent and adequate state-law basis for the district court to deny review of the claim alleged in Ground Three. This is because the court of appeals invoked a procedural bar that is "firmly established" and "regularly followed" in Arizona. See Ariz. R. Crim. P. 31.13(c)(1)(vi) (appellant's brief shall include a concise argument containing the party's contentions, reasons therefor, and necessary supporting citations). See e.g., State v. Burns, 344 P.3d 303, 320 (2015) ("Burns also argues that Mandi's testimony was not timely disclosed and should have been precluded, but does not support this claim with any argument or citation to the record. He has, therefore, waived this claim."); State v. Bolton, 896 P.2d 830, 838 (1995) ("Defendant also raises several issues for which he offers argument insufficient for appellate review. Failure to argue a claim on appeal constitutes waiver of that claim."); State v. Carver, 771 P.2d 1382, 1390 (1989) ("In Arizona, opening briefs must present significant arguments, supported by authority, setting forth an appellant's position on the issues raised. Failure to argue a claim usually constitutes abandonment and waiver of that claim.") (collecting cases).
It is too late for Petitioner to now return to the state court and present the claims alleged in Grounds Two and Three of the Petition. See Ariz. R. Crim. P. 32.2(a) (claims that could have been previously raised on direct appeal or previous PCR proceeding are precluded); Ariz. R. Crim. P. 32.4(a) (first PCR notice must be filed within 90 days after conviction for a pleading defendant and 30 days in all other cases). The claims alleged in Grounds Two and Three of the Petition, therefore, are procedurally defaulted. See O'Sullivan, 526 U.S. at 848 (stating that where habeas petitioner was time-barred from presenting his claims in state court, claims were procedurally defaulted); Coleman, 501 U.S. at 735 n.1 (when a prisoner has failed to exhaust state remedies and is barred by procedural rules from raising the claim, "there is a procedural default for purposes of federal habeas" review).
In sum, this Court determines that the claims alleged in Grounds Two and Three are procedurally defaulted.
The Procedural Default Cannot be Excused
The district court may review a procedurally defaulted claim only if the petitioner alleges and proves cause and prejudice, or a fundamental miscarriage of justice. Coleman, 501 U.S. at 750; Cooper, 641 F.3d at 327. To establish "cause," a petitioner must demonstrate that "some objective factor external to the defense impeded [petitioner]'s efforts to comply with the State's procedural rule." Coleman, 501 U.S. at 753 (internal quotation omitted). To show "prejudice," a petitioner must demonstrate that the alleged constitutional violation worked to the prisoner's "actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original); see also Stokley v. Ryan, 705 F.3d 401, 403 (9th Cir. 2012); White v. Lewis, 874 F.2d 599, 603 (9th Cir. 1989). And, to prove a "fundamental miscarriage of justice," a prisoner must establish that, in light of new evidence, "it is more likely than not that no reasonable juror would have convicted him." Schlup, 513 U.S. at 327.
Here, Petitioner asserts that he presented the claims alleged in Grounds Two and Three to the court of appeals. (Doc. 1 at 7; Doc. 15 at 5.) However, as explained above, this Court determines Petitioner did not and they are procedurally defaulted. Believing that he properly exhausted his claims, Petitioner has made no effort to establish the cause and actual prejudice necessary for the district court to excuse his procedural default.
The procedural default is not excusable on the grounds that Petitioner is actually innocent of the crimes for which he had been convicted. The prevailing burden requires Petitioner to establish "that it is more likely than not that no reasonable juror would have convicted him in light of [any yet unpresented] new evidence." McQuiggin v. Perkins, 569 U.S. 383, 399 (2013) (quoting Schlup, 513 U.S. at 327). Petitioner has failed to make any such showing in his Petition and reply.
In sum, this Court determines that the claims alleged in Grounds Two and Three are procedurally defaulted without excuse and barred from federal habeas review.
RECOMMENDATION
Ground One of the Petition is non-cognizable on habeas review. Grounds Two and Three are procedurally defaulted without excuse and barred form habeas review. The Magistrate Judge recommends that the district court, after its independent review, DISMISS the Petition for Writ of Habeas Corpus.
Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the district court. If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should use the following case number: 2:18-cv-02569-RCC.
Dated this 25th day of November, 2019.
/s/_________
Honorable D. Thomas Ferraro
United States Magistrate Judge