Opinion
No. CV 05-4102-PHX-EHC.
July 24, 2006
ORDER
On December 14, 2005, Petitioner filed a Petition for Writ of Habeas Corpus, alleging ten claims. [Dkt. 1]. On February 8, 2006, Respondents filed an Answer. [Dkt. 8]. On March 2, 2006, Petitioner filed a Reply to the Answer. [Dkt. 10].
On June 22, 2006, Magistrate Judge Lawrence O. Anderson issued a Report and Recommendation [dkt. 12], recommending that the Petition be denied. Magistrate Judge Anderson recommends that Claim Ten be denied on the merits and Claims One through Nine be denied as procedurally defaulted. On July 6, 2006, Petitioner filed an Objection to the Rep ort and Recommendation. [Dkt. 13]. The district court "shall make a de novo determination . . . of any portion of the Magistrate Judge's disposition to which specific written objection has been made." Fed.R.Civ.P. 72(b).
Claim Ten alleges a violation of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). [Dkt. 1, p. 14]. Magistrate Judge Anderson recommends denying Claim Ten on the merits because Blakely does not retroactively apply to this case. Petitioner objects to this recommendation on the ground that Blakely "holds the court accountable to their [sic] own rules." [Dkt. 13, p. 8]. The Ninth Circuit has found thatBlakely does not apply retroactively. Schardt v. Payne, 414 F.3d 1025, 1036 (9th Cir. 2005) ("New procedural rules generally do not apply retroactively, unless they amount to watershed rules of criminal procedure . . . Blakely did not announce a watershed rule of criminal procedure."). Claim Ten will be denied on the merits.
Petitioner objects to the finding that Claims One through Nine are procedurally defaulted on the ground that she filed a Petition for Post-Conviction Relief pursuant to Ariz. R. Crim. P. 32.1 in the Arizona Court of Appeals. "Before seeking a federal writ of habeas corpus . . . the prisoner must fairly present his [or her] claim in each appropriate state court." Baldwin v. Reese, 541 U.S. 27, 29, 124 S. Ct. 1347, 1349 (2004). Claims that have not been fairly presented are procedurally defaulted if they are time-barred under state law. Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002) ("If [p et it ioner] has any unexhausted claims, he has procedurally defaulted them, because he is now time-barred under Arizona law from going back to state court."). Petitioner presented only Claim Ten not Claims One through Nine to the Arizona Court of Appeals. [Dkt. 8, ex. S (alleging only a Blakely violation)]. Claims One through Nine are time-barred under Arizona law; the trial court denied Petitioner's claim for post-conviction relief on November 9, 2004. [Dkt. 8, ex. Q]. See Ariz R. Crim. P. 32.9(c) ("Within thirty days after the final decision of the trial court on the petition for post-conviction relief . . . any party aggrieved may petition the appropriate appellate court for review of the actions of the trial court."). Claims One through Nine are procedurally defaulted and will be denied.
Accordingly,
IT IS ORDERED that the Report and Recommendation [dkt. 12] is ADO PTED; the Petition for Habeas Corpus [dkt. 1] is DENIED.