Opinion
CV 22-02203-PHX-GMS (ESW)
09-26-2023
Hector Longoria, Petitioner, v. Ryan Thornell, et al., Respondents.
EILEEN S. WILLETT, UNITED STATES MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
TO THE HONORABLE G. MURRAY SNOW, UNITED STATES DISTRICT JUDGE:
Pending before the Court is Hector Longoria's (“Petitioner”) “Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus” (the “Petition”) (Doc. 1). For the reasons explained herein, the undersigned recommends that the Court dismiss this action as all of Plaintiff's habeas claims are procedurally defaulted without excuse.
I. BACKGROUND
On December 19, 2016, Petitioner entered into a plea agreement in the Superior Court of Arizona in and for Pinal County in which Petitioner pled guilty to: (i) attempted child abuse; (ii) child abuse; and (iii) misconduct involving a weapon. (Doc. 10-1 at 5659). On January 26, 2017,the trial court accepted Petitioner's guilty pleas and sentenced Petitioner to a prison term of 12.5 years, followed by lifetime supervised probation. (Id. at 68-73).
The trial court held the sentencing hearing on January 26, 2017; the clerk of court filed the judgment on January 27, 2017. (Doc. 10-1 at 68, 72).
Upon Petitioner's timely filing of a Notice of Post-Conviction Relief (“PCR”), the trial court appointed PCR counsel. (Id. at 77-82). The trial court granted PCR counsel's multiple requests for an extension of time to file a PCR Petition. (Id. at 86, 90, 94, 98). On October 31, 2017, PCR counsel notified the trial court that there are no colorable claims that counsel could raise on Petitioner's behalf. (Id. at 100-02). The trial court set January 29, 2018 as Petitioner's deadline to file a pro se PCR Petition. (Id. at 104). The trial court granted Petitioner's requests to extend the deadline and set the deadline for May 11, 2018. (Id. at 109, 114).
On April 12, 2019, Petitioner's newly retained PCR counsel moved to further extend the deadline to file a PCR Petition, which the trial court granted. (Id. at 120-21, 123). The trial court granted PCR counsel's subsequent motion for an additional deadline extension and extended the deadline to file a PCR Petition to August 9, 2019. (Id. at 128).
This PCR counsel is also Petitioner's counsel in this proceeding.
In an Order filed on September 5, 2019, the trial court dismissed the PCR proceeding as Petitioner did not file a PCR Petition by the August 9, 2019 deadline. (Id. at 131). Petitioner's counsel then moved to reinstate the PCR proceeding, explaining that counsel's staff did not add the deadline to counsel's calendar. (Id. at 134). The trial court granted the motion and set December 6, 2019 as the deadline for Petitioner to file his PCR Petition. (Id. at 137).
Through counsel, Petitioner filed his PCR Petition. (Id. at 139-278). The PCR Petition reflects a file-stamp date of December 10, 2019. (Id. at 139). In a July 29, 2020 ruling, the trial court summarily dismissed the PCR Petition. (Id. at 322-24). The trial court deemed the PCR Petition untimely and alternatively concluded that Petitioner failed to state a colorable claim. (Id.).
Petitioner sought further review of the trial court's ruling by the Arizona Court of Appeals. (Id. at 343-78). In its February 10, 2021 decision, the Arizona Court of Appeals granted review but denied relief. (Id. at 428-32). The Arizona Court of Appeals denied Petitioner's motion for reconsideration. (Id. at 444). The Arizona Supreme Court denied Petitioner's Petition for Review on December 28, 2021. (Id. at 479).
On December 28, 2022, Petitioner filed the Petition (Doc. 1) seeking habeas relief. The Court screened the Petition and required Respondents to file an Answer. (Doc. 5). In their April 7, 2023 Limited Answer (Doc. 10), Respondents argue that Petitioner's claims are procedurally defaulted. Petitioner has filed a Reply (Doc. 14).
II. DISCUSSION
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
“In addition to the exhaustion requirement, a federal court may not hear a habeas claim if it runs afoul of the procedural bar doctrine.” Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011); see also Schneider v. McDaniel, 674 F.3d 1144, 1152 (9th Cir. 2012) (“[A] state prisoner's failure to comply with the state's procedural requirements in presenting his claims is barred from obtaining a writ of habeas corpus in the federal court by the adequate and independent state ground doctrine.”) (citing Coleman, 501 U.S. at 731-32). “[Under] the doctrine of procedural default . . . a federal court will not review the merits of claims, including constitutional claims, that a state court declined to hear because the prisoner failed to abide by a state procedural rule.” Martinez v. Ryan, 566 U.S. 1, 9 (2012).
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 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).
C. Analysis
After granting Petitioner numerous extensions of time, the trial court set December 6, 2020 as the deadline for Petitioner to file his PCR Petition. (Doc. 10-1 at 137). The PCR Petition was filed through Petitioner's counsel. Although the PCR Petition states that the original was “filed via USPS this 6th day of December, 2019,” the PCR Petition is file-stamped December 10, 2019. (Id. at 139, 162). In responding to the PCR Petition, the State argued that the PCR Petition is untimely. (Id. at 286). Citing Arizona Rule of Criminal Procedure 31.13(c)(2)(B) and Lee v. State, 218 Ariz. 235 (Ariz. 2008), Petitioner asserted that “pleadings are considered timely filed if it is handed to the delivery carrier within three calendar days of the due date deadline.” (Id. at 309).
On July 29, 2020, the trial court concluded that Petitioner's PCR Petition was filed after the December 6, 2020 deadline. (Id. at 322). The trial court stated that the “late filing serves as an independent and adequate basis for dismissal of the [PCR] Petition.” (Id.). The trial court explained that “Petitioner's citation to Rule 31.13(c)(2)(B), Ariz. R. Crim. P., applies to the filing of appeal and is inapplicable to petitions for post-conviction relief.” (Id.).
In affirming the trial court's ruling, the Arizona Court of Appeals stated:
¶7 On review, Longoria first argues the trial court erred in concluding his petition was untimely. He asserts, as he did below, that his filing was timely pursuant to Rule 31.13(c)(2)(B), which provides that a pro se paper brief is timely filed if “the filing party delivers the brief to a third-party commercial carrier within the time allowed for filing, for the carrier's delivery to the appellate clerk within 3 calendar days.” But Rule 31.13 governs the filing of appellate briefs, and nothing in the rule's language suggests it also applies to petitions for post-conviction relief. See Osterkamp v. Browning, 226 Ariz. 485, ¶ 14 (App. 2011) (plain language best indicator of “supreme court's intent in promulgating the rule”); see also Ariz. R. Crim. P. 31.1(a)(2) (“The provisions of Rule 31 govern criminal appeals from the superior court to the Court of Appeals and the Supreme Court.”).
¶8 Rather, filings in the trial court are governed by Rule 1.7, Ariz. R. Crim. P., which unambiguously provides in subsection (b)(1) that a paper document is “deemed filed on the date the clerk receives and accepts it.” Thus, under Rule 1.7, Longoria's petition was untimely. And we reject Longoria's assertion that Rule 31.13 nonetheless applies because Rule 33 proceedings are the functional equivalent of an appeal for pleading defendants. See Montgomery v. Sheldon, 181 Ariz. 256, 260 (1995) (noting post-conviction proceedings “followed by appellate review” are “similar to a direct appeal for an Arizona defendant who pleads guilty”). Any similarities between appeals and post-conviction proceedings do not give us the authority to modify our procedural rules. See Bergeron ex rel. Perez v. O'Neil, 205 Ariz. 640, ¶¶ 24, 27 (App. 2003).
¶9 Longoria also requests that we adopt the “common law mail rule” as described in Lee v. State, 218 Ariz. 235 (2008) because Rule 33 “does not explicitly require a filing [to] be
received by the clerk on the date the filing is due.” First, it is unnecessary for Rule 33 to contain any such requirement because Rule 1.7(b) establishes that the date of filing is the date the document is received and accepted by the clerk. Second, Longoria misunderstands the common law mail rule, which does not establish the date of filing, but merely states that, for a properly mailed item, “proof of the fact of mailing will, absent any contrary evidence, establish that delivery occurred.” Lee, 218 Ariz. 235, ¶ 8.(Id. at 430-32) (footnotes omitted). Because it concluded that the trial court correctly determined that the PCR Petition was untimely filed, the Arizona Court of Appeals did not address the merits of Petitioner's claims. (Id. at 432).
In his Reply to Respondents' Limited Answer, Petitioner asserts that his PCR Petition “was, in fact, timely filed under Ariz. R. Crim. P. 31.13, 32.9, and the common law mailbox rule.” (Doc. 14 at 7). Petitioner also asserts that the Arizona Court of Appeals' opinion in State v. Young, 253 Ariz. 367, 513 P.3d 343 (Ariz.Ct.App. 2022) supports Petitioner's position that he timely filed the PCR Petition. (Id. at 6-7).
“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 68 (1991); see also Gilmore v. Taylor, 508 U.S. 333, 348-49 (1993) (explaining that “mere error of state law, one that does not rise to the level of a constitutional violation, may not be corrected on federal habeas”); Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (stating that “federal habeas corpus relief does not lie for errors of state law”). “[A] state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005). Thus, the Court is bound by the state courts' interpretation of its procedural rules in this federal habeas proceeding. See Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996) (federal courts “accept a state court's interpretation of state law, and alleged errors in the application of state law are not cognizable in federal habeas corpus”) (internal citation omitted).
Further, it is noted that in State v. Young, the Arizona Court of Appeals explained that “[u]nder the prisoner mailbox rule, pro se prisoners are deemed to have filed legal documents if the filing is properly addressed and has been delivered ‘to the proper prison authorities to be forwarded to the clerk of the . . . court.'” 513 P.3d 343, 345 (emphasis added) (ellipsis in original). The defendant in State v. Young filed his PCR petition pro se, and the Arizona Court of Appeals concluded that his PCR petition must be considered timely filed on the date that the defendant delivered the petition to prison authorities. Id.
Here, in contrast to State v. Young, Petitioner's PCR Petition was prepared by counsel. “When a lawyer prepares legal documents on behalf of a prisoner and arranges for those documents to be signed and filed, the prisoner is not proceeding without assistance of counsel.” Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th Cir. 2003). Moreover, Petitioner's counsel placed the PCR Petition in United States Post Office mailing system, not the prison mailing system.
The undersigned finds that Respondents correctly assert (Doc. 10 at 15-20) that the state courts' procedural determination under Rule 33 of the Arizona Rules of Criminal Procedure is an independent and adequate state law ground precluding federal habeas review. See Stewart v. Smith, 536 U.S. 856, 860 (2002) (recognizing independence of procedural determinations in PCR proceedings); Szabo v. Walls, 313 F.3d 392, 395 (7th Cir. 2002) (“A state is entitled to treat as forfeited a proposition that was not presented in the right court, in the right way, and at the right time-as state rules define those courts, ways, and times. Failure to comply with the state's procedural rules furnishes an independent and adequate state ground of decision that blocks federal collateral review.”) (citations omitted); Martinez v. Schriro, No. CV-04-2933-PHX-MHM (ECV), 2006 WL 1734380, at *5 (D. Ariz. June 15, 2006) (“The timeliness ground relied on by the trial court to dismiss the post-conviction petition is clearly independent of the federal question raised by Petitioner. Additionally, the court finds that this state procedural bar is ‘adequate' in that a timely post-conviction petition is a clear and well-established state procedural requirement.”).
To reiterate, the failure “to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance.” Coleman, 501 U.S. at 732. Accordingly, even assuming arguendo that Petitioner fairly presented his habeas claims to the trial court and Arizona Court of Appeals in his PCR proceeding, the undersigned finds that the habeas claims are procedurally defaulted.
Respondents assert that Petitioner did not fairly present any of his habeas claims to the trial court and Arizona Court of Appeals in his PCR proceeding. (Doc. 10 at 15
D. Petitioner's Procedural Defaults Are Not Excused
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). The miscarriage of justice exception is also referred to as the “Schlup gateway.” Griffin v. Johnson, 350 F.3d 956, 961 (9th Cir. 2003).
Petitioner asserts that his PCR Petition was timely filed and does not advance an argument that his procedural defaults should be excused. 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 v. Baldwin, 510 F.3d 1127, 1146 (9th Cir. 2007) (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.
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 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).
One of Petitioner's habeas claims asserts that there is insufficient evidence to support Petitioner's convictions. (Doc. 1 at 3, 19-24). However, to demonstrate actual innocence under Schlup, a petitioner must “show actual, factual innocence, not just legal insufficiency of the evidence.” United States v. Ratigan, 351 F.3d 957, 965 (9th Cir. 2003) (emphasis added); see also Bousley v. United States, 523 U.S. 614, 623-24 (1998). “Moreover, in the context of a conviction entered on a plea, the petitioner must come forward with such evidence not only as to the charges as to which he entered a plea, but, in addition, as to other charges pending against him in the case prior to the plea, including charges dismissed pursuant to the plea deal.” Valencia v. Legrand, No. 3:13-CV-00413-LRH, 2014 WL 3953186, at *4 (D. Nev. Aug. 13, 2014) (citing Bousley v. United States, 523 U.S. 614 (1998)). Pursuant to Petitioner's plea agreement, the trial court dismissed four charges in Petitioner's indictment. (Doc. 10-1 at 57, 71). Further, it is unclear “whether the Schlup actual innocence gateway always applies to petitioners who plead guilty.” Smith v. Baldwin, 510 F.3d 1127, 1140 n. 9 (9th Cir. 2007) (“We are aware of a potential incongruity between the purpose of the actual innocence gateway announced in Schlup and its application to cases involving guilty (or no contest) pleas. . . . For purposes of our analysis, however, we assume without deciding that the actual innocence gateway is available to [the plea-convicted habeas petitioner].”). Decisions in which the Ninth Circuit or United States Supreme Court have considered gateway claims of actual innocence in a plea context involved subsequent case law that arguably rendered the defendant's acts non-criminal. See, e.g. Bousley v. United States, 523 U.S. 614, 621-23 (1998); Vosgien v. Persson, 742 F.3d 1131, 1134-35 (9th Cir. 2013); United States v. Avery, 719 F.3d 1080, 1084-85 (9th Cir. 2013).
III. CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that the Petition (Doc. 1) be DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that a certificate of appealability and leave to proceed in forma pauperis on appeal be denied because dismissal of the Petition is justified by a plain procedural bar.
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72. *