Opinion
CV 21-00487-TUC-JCH (LAB)
07-29-2022
Marcus Mosby, Petitioner, v. David Shinn; et al., Respondents.
REPORT AND RECOMMENDATION
Leslie A. Bowman United States Magistrate Judge
Pending before the court is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, filed in this court on November 29, 2021, by Marcus Mosby, who is currently incarcerated in the Arizona State Prison Complex in Tucson, Arizona. (Doc. 1)
Pursuant to the Rules of Practice of this court, the matter was referred to Magistrate Judge Bowman for report and recommendation. LRCiv 72.2(a)(2).
The Magistrate Judge recommends that the District Court, after its independent review of the record, enter an order denying the petition. Mosby's claims were not properly exhausted and are now procedurally defaulted.
Summary of the Case
On August 14, 2015, Mosby was convicted after a jury trial, where he represented himself, of “kidnapping and two counts of aggravated assault, all domestic violence offenses.” (Doc. 11-1, p. 111) “He was sentenced to concurrent and consecutive prison terms totaling 25.75 years.” Id.
On direct appeal, counsel was unable to find any colorable claims to raise and moved that Mosby be permitted to file a supplemental brief in propria persona. (Doc. 11-1, pp. 92-93) In his supplemental brief, Mosby argued that (1) he was denied a fair trial because the trial court prevented him from performing a demonstration for the jury and restricted his right to present evidence about the victim's criminal history, character, and lifestyle and (2) the prosecutor used perjured testimony. (Doc. 11-1, pp. 100-107); (Doc. 11-1, pp. 110-114) The Arizona Court of Appeals affirmed his convictions on December 13, 2016. (Doc. 11-1, p. 110) Mosby did not file a petition for review with the Arizona Supreme Court. (Doc. 11, p. 5)
On January 11, 2017, Mosby filed notice of post-conviction relief. (Doc. 11, p. 5) In his petition, he claimed appellate counsel was ineffective for “failing to obtain records necessary to evaluate the issue of self-representation and for failing to raise the issue of structural error with regard to the Court forcing the Petitioner to abandon his right to counsel.” (Doc. 11-2, p. 47)
Apparently, Mosby's trial was originally set for April 14, 2015. (Doc. 11-2, pp. 80-84) On April 9, 2015, the trial court held a status conference at which the defense counsel stated that she was not ready for trial and would not be ready until after May 31, 2015, which was the speedy trial deadline pursuant to Ariz.R.Crim.P. 8. Id. (Apparently disclosure was extensive, the case was complex, and counsel was not the attorney originally assigned to the case.) Id. Mosby, however, refused to waive his speedy trial rights and insisted on going to trial as originally scheduled on April 14, 2015, even though he would have to do so pro se. Id.
On March 12, 2019, the trial court held that appellate counsel was not ineffective. (Doc. 11-2, pp. 80-89) The court found specifically as follows:
The defendant was not presented with a constitutionally offensive choice. He knowingly, intelligently, and voluntarily waived his right to counsel. He chose to represent himself within his Rule 8 time, and without valuable disclosure that could have assisted in his defense. The Defendant has not shown that the Court of Appeals would have found structural error, or that the appeal would have been different had appeal [sic] counsel presented his issue.(Doc. 11-2, p. 89)
After some delay, Mosby filed a petition for review with the Arizona Court of Appeals on September 23, 2019. (Doc. 11-3, pp. 3-12) He argued again that appellate counsel had been ineffective “for failing to investigate and raise the issue of self-representation.” (Doc. 11-3, p. 9) On May 18, 2020, the Arizona Court of Appeals granted review but denied relief. (Doc. 113, pp. 16-21) The Arizona Supreme Court denied review on November 13, 2020. (Doc. 11-3, p. 30)
On January 8, 2021, Mosby's counsel filed a second notice of post-conviction relief. (Doc. 12, pp. 8-11) The trial court invited counsel to explain “why the Defendant is entitled to new representation of counsel” and “what relief Counsel is requesting through this latest petition.” (Doc. 12, pp. 11-12) On April 26, 2021, the trial court issued an order denying Mosby's request that counsel be appointed to pursue post-conviction relief because “Defendant does not state any colorable grounds for successive post-conviction relief proceedings.” (Doc. 12, p. 18)
On November 29, 2021, Mosby filed in this court a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1) He claims (1) his speedy trial right was violated and (2) his right to an unbiased counsel was violated because he had an irreconcilable conflict with his attorney. (Doc. 1, p. 6)
Mosby states that he deposited his petition in the prison mailing system on November 5, 2021. (Doc. 1, p. 11) The respondents maintain that the petition was delivered to the prison authorities on November 24, 2021. (Doc. 11, pp. 11-12) The court finds that the petition may be resolved without addressing this issue.
On January 11,2022, the respondents filed an answer. (Doc. 11) They argue the petition is untimely and Mosby's claims are procedurally defaulted. Id. Mosby served a reply on the respondents but did not file the reply in this court. (Doc. 13) The respondents helpfully filed a copy of his reply brief in this court on February 28, 2022. (Doc. 13)
The court finds that Mosby's claims are procedurally defaulted. The court does not reach the respondents' alternate allegations of error.
Discussion
The writ of habeas corpus affords relief to persons in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). If the petitioner is in custody pursuant to the judgment of a State court, the writ will not be granted unless prior adjudication of the claim
(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).
Federal habeas review is limited to those claims for which the petitioner has already sought redress in the State courts. This so-called “exhaustion rule” reads in pertinent part as follows:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that - (A) the applicant has exhausted the remedies available in the courts of the State. . . .28 U.S.C. § 2254(b)(1)(A).
“Exhaustion requires that a petitioner ‘fairly present' his federal claims to the highest State court available.” Davis v. Silva, 511 F.3d 1005, 1008-09 (9th Cir. 2008). “Fair presentation requires that the petitioner describe in the State proceedings both the operative facts and the federal legal theory on which his claim is based so that the State courts have a ‘fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim.” Id. (punctuation modified). “Thus, for purposes of exhausting State remedies, a claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as well as a statement of the facts that entitle the petitioner to relief.” Id. The petitioner must make the federal basis of the claim explicit either by citing specific provisions of federal law or federal case law, even if the federal basis of a claim is “self-evident,” Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999), cert. denied, 528 U.S. 1087 (2000), or by citing state cases that explicitly analyze the same federal constitutional claim, Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc).
If the petitioner is in custody pursuant to a judgment imposed by the State of Arizona, he must present his claims to the Arizona Court of Appeals for review, which is the highest “available” State court. Castillo v. McFadden, 399 F.3d 993, 998 (9th Cir. 2005), cert. denied, I 546 U.S. 818 (2005); Swoopes v. Sublett, 196 F.3d 1008 (9th Cir. 1999), cert. denied, 529 U.S. 1124 (2000). If State remedies have not been properly exhausted, the petition may not be granted and ordinarily should be dismissed without prejudice. See Johnson v. Lewis, 929 F.2d 460, 463 (9th Cir. 1991). In the alternative, the court has the authority to deny on the merits rather than dismiss for failure to properly exhaust. 28 U.S.C. § 2254(b)(2).
A claim is “procedurally defaulted” if the State court declined to address the claim on the merits for procedural reasons. Franklin v. Johnson, 290 F.3d 1223, 1230 (9th Cir. 2002). Procedural default also occurs if the claim was not presented to the State court and it is clear the State would raise a procedural bar if it were presented now. Id.
The procedural default rule bars consideration of the petitioner's habeas claim if the State procedural rule is “independent and adequate.” Bennett v. Mueller, 322 F.3d 573, 580-583 (9thCir. 2003). The rule must be independent of federal law and must be “well-established and consistently applied.” Id.
Procedural default may be excused if the petitioner can “demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Boyd v. Thompson, 147 F.3d 1124, 1126 (9th Cir. 1998). “To qualify for the fundamental miscarriage of justice exception to the procedural default rule, however, [the petitioner] must show that a constitutional violation has probably resulted in the conviction when he was actually innocent of the offense.” Cook v. Schriro, 538 F.3d 1000, 1028 (9th Cir. 2008).
If a claim is procedurally defaulted and is not excused, the claim should be dismissed with prejudice because the claim was not properly exhausted and “the petitioner has no further recourse in State court.” Franklin, 290 F.3d at 1231.
Discussion
In the pending habeas petition, Mosby claims (1) his speedy trial right was violated and (2) his right to an unbiased counsel was violated because he had an irreconcilable conflict with his attorney. (Doc. 1, p. 6) Neither of these claims was presented to the Arizona Court of Appeals. On direct appeal, Mosby argued that (1) he was denied a fair trial because the trial court prevented him from performing a demonstration for the jury and restricted his right to present evidence about the victim's criminal history, character, and lifestyle and (2) the prosecutor used perjured testimony. (Doc. 11-1, pp. 100-107); (Doc. 11-1, pp. 110-114) In his petition for review of the denial of his post-conviction relief proceeding, he argued that appellate counsel had been ineffective “for failing to investigate and raise the issue of selfrepresentation.” (Doc. 11-3, p. 9)
The claims in his pending habeas petition, therefore, were not properly exhausted. Mosby cannot return to State court and exhaust them now in another post-conviction relief proceeding. See Ariz.R.Crim.P. 32.2(a) (waiver), 32.4 (deadline for filing); see also (Doc. 12, pp. 3-4) The claims are procedurally defaulted. See, e.g., James v. Mauldin, 2010 WL 366722, at *16, *22 (D. Ariz. Jan. 27, 2010) (Speedy trial due process claim was not properly exhausted and was procedurally defaulted.).
In his reply brief, Mosby states that “Defense attorneys for Petitioner conflicted with him when he demanded a speedy trial, resulting in the attorneys withdrawing from his case.” (Doc. 13-1, p. 2) He seems to be stating that he and his trial attorneys had a difference of opinion as to whether he should waive his right to a speedy trial, and as a result, he lost his right to effective assistance of counsel. This claim, however, was never presented to the Arizona Court of Appeals. In his petition for review, Mosby argued that his appellate counsel was ineffective for failing to investigate this underlying issue. (Doc. 11-3, p. 9) For proper exhaustion, however, the petitioner must present the State courts with the underlying issue itself and may not rely on a claim that counsel was ineffective for failing to raise that underlying issue. “While admittedly related, they are distinct claims with separate elements of proof, and each claim should have been separately and specifically presented to the state courts.” Rose v. Palmateer, 395 F.3d 1108, 1112 (9th Cir. 2005) (Petitioner did not fairly present his Fifth Amendment claim “when he merely discussed it as one of several issues which were handled ineffectively by his trial and appellate counsel.”). Mosby's claims were not properly exhausted and are now procedurally defaulted. He does not argue that circumstances exist that would excuse this default.
RECOMMENDATION
The Magistrate Judge recommends that the District Court, after its independent review of the record, enter an order Denying the petition for writ of habeas corpus. Mosby's claims are procedurally defaulted.
Pursuant to 28 U.S.C. §636 (b), any party may serve and file written objections within 14 days of being served with a copy of this report and recommendation. If objections are not timely filed, they may be deemed waived. The Local Rules permit a response to an objection. They do not permit a reply to a response without the permission of the District Court.