Opinion
CV 23-00922 PHX MTL (CDB)
01-09-2024
Carlos Eduardo Navarrette, Petitioner, v. Ryan Thornell, Attorney General of the State of Arizona, Respondents.
TO THE HONORABLE MICHAEL T. LIBURDI, JUDGE.
REPORT AND RECOMMENDATION
CAMILLE D. BIBLES, UNITED STATES MAGISTRATE JUDGE.
Petitioner Carlos Navarrette seeks relief from his state court convictions and sentence pursuant to 28 U.S.C. § 2254.
I. Background
The following is taken from the Arizona Court of Appeals' decision denying relief in Navarrette's appeal:
Navarrette first met the victim, Megan, [footnote 2: We refer to the victim by a pseudonym to protect her identity.] at a restaurant. The two exchanged phone numbers and eventually left in separate cars for an afterparty. They arrived at a dirt lot, and Megan parked next to Navarrette and entered the passenger seat of his car. In the car, Navarrette tried to kiss Megan despite her repeated refusals. Navarrette climbed on top of Megan in the passenger seat, preventing her from moving. He tried to have sex with Megan, and when she refused, he grabbed a gun from underneath the driver's seat and pointed it at her head. He told Megan to remove her clothes and demanded oral and vaginal sex. Megan complied with Navarrette's demands out of fear for her life. After the acts, Navarrette allowed Megan to leave. Megan drove home, and her family called the police.
In the hours following the incident, Navarrette sent Megan apologetic text messages. Megan also consented to a nurse exam and rape kit, and officers investigated the crime and found the car and gun as Megan described.
The State charged Navarrette with Count 1, sexual assault (oral sex), a class 2 dangerous felony; Count 2, sexual assault (penile/vaginal intercourse), a class 2 dangerous felony; Count 3, aggravated assault, a class 3 dangerous felony; Count 4, kidnapping, a class 2 dangerous felony; and Count 5, misconduct involving weapons, a class 4 felony.
A jury convicted Navarrette on Counts 2, 3, 4, and 5 but found him not guilty of Count 1. The jury found aggravating circumstances of dangerousness and physical or emotional harm to the victim for Counts 2, 3, and 4. The court sentenced Navarrette to a “less than maximum term” of 12 years flat time for Count 2, a “less than maximum term” of 9 years for Count 3, a “less than maximum term” of 12 years for Count 4, and a presumptive sentence of 2.5 years for Count 5 as a repetitive offense. The court ordered the sentences to run concurrently, and Navarrette received presentence incarceration credit for 750 days. The court also ordered Navarrette to pay costs associated with DNA testing .State v. Navarrette, 2023 WL 2582625, at *1 (Ariz.Ct.App. Mar. 21, 2023).
Navarrette appealed his convictions and sentences, and his appointed counsel filed an Anders brief certifying they could find no arguable basis for an appeal. Id. Navarrette was given leave to file a pro per brief but did not do so. Id. The Arizona Court of Appeals reviewed the record for arguable issues. In an order entered March 21, 2023, the appellate court concluded:
At all stages of the proceedings against him, Navarrette was present or waived his presence and was represented by counsel. The record reflects the superior court afforded Navarrette all his constitutional and statutory rights and conducted the proceedings following the Arizona Rules of Criminal Procedure. The court held appropriate pretrial hearings, and the evidence presented at trial and summarized above was sufficient to support the jury's verdicts. Navarrette's sentences fall within the range prescribed by law, with proper credit given for presentence incarceration.Id. at *2. The appellate court affirmed Navarrette's convictions and sentence but modified the sentencing order by vacating the requirement that Navarrette pay for DNA testing. Id.
On April 3, 2023, Navarrette filed, in the Arizona Supreme Court, a pro per “Petition to Challenge the Court of Appeals of Division One's Memorandum Decision, Move for Reversal to Superior Court for Evidentiary Hearing.” (ECF No. 11-1 at 1). The court treated the pleading as a Notice of Appeal, and on September 19, 2023, it denied review of the Court of Appeals' decision. (ECF No. 6-4 at 16; ECF No. 11-1 at 1).
Navarrette filed his pending petition for § 2254 relief on May 25, 2023, when his petition for review was pending in the Arizona Supreme Court. In his reply to Respondents' limited answer to his petition Navarrette allowed the matter should be stayed until the petition for review was resolved. (ECF No. 7). This matter was stayed and the stay was lifted on October 16, 2023. (ECF No. 12).
There is no indication in the record in this matter or in the state court's public information database that Navarrette filed a timely petition for state post-conviction relief. Nor has Navarrette filed any additional pleading regarding the arguments made in the limited answer to his petition.
II. Claims for Relief
1. Navarrette contends he was subjected to manifest injustice, requiring a new trial pursuant to “Rule 59.” He asserts he is entitled to a new trial because:
Throughout the entire process, the alleged accusser [sic] was inconsistent with all the demonstrations of the police reports all the way through the entirety of trial. As the Jury was unable to hear the truth, as the State moved to suppress some material facts on the ground that there was no probable cause. The sentencing/trial attorney objected to this issue, but Defense Counsel's objection was ignored.(ECF No. 1 at 6).
2. Navarrette alleges he was denied his rights pursuant to the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to United States Constitution were violated. He maintains his due process and equal protection rights were violated because he
... was not allowed to have an effective attorney that would solitify [sic] the petitioners [sic] Due Process Rights would not be violated. The Petitioner wanted to testify at trial due to the inconsistencies of the prosecutor, and the State never demonstrated any probable cause that would solitify [sic] that the Petitioner would be guilty beyond a reasonable doubt.(ECF No. 1 at 7).
3. Navarrette alleges his due process rights were violated because “Ariz. R. Crim. P. were not followed,” citing rules “(c)(d)(e)(f)(g)(h)(i)(j)(k).” (ECF No. 1 at 8). He asks the Court to “allow the petitioner the availability to demonstrate material facts that would vacate sentence and Remand to the Lower Courts for an Evidentiary Hearing.” (Id.).
III. Analysis
A. Navarrette's claims are procedurally defaulted
Absent specific circumstances, the Court may only grant federal habeas relief on a claim which has been “properly” exhausted in the state courts. See, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). To properly exhaust a federal habeas claim, the petitioner must afford the state courts the opportunity to rule upon the merits of the claim by “fairly presenting” the claim to the state's “highest” court in a “procedurally correct” manner. E.g., Castille v. Peoples, 489 U.S. 346, 351 (1989); Rose v. Palmateer, 395 F.3d 1108, 1110 (9th Cir. 2005). In noncapital cases arising in Arizona, the “highest court” test is satisfied if the habeas petitioner presented their claim to the Arizona Court of Appeals in their direct appeal or a properly-filed state action for post-conviction relief. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Date v. Schriro, 619 F.Supp.2d 736, 762-63 (D. Ariz. 2008).
To fairly present a claim in the state courts, thereby exhausting the claim, the petitioner must present to the state courts the “substantial equivalent” of the claim presented in federal court. Picard v. Connor, 404 U.S. 270, 278 (1971); Libberton v. Ryan, 583 F.3d 1147, 1164 (9th Cir. 2009). Full and fair presentation requires a petitioner to reference, in the state court, the same operative federal constitutional guarantee relied on by the petitioner in their § 2254 petition. See Walden v. Shinn, 990 F.3d 1183, 1195 (9th Cir. 2021); Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009). The fair presentation requirement mandates that a state prisoner alert the state appellate court to the presence of a specific federal claim in their appellate brief; simply labeling a claim “federal” or “constitutional” or expecting the state court to read beyond the four corners of the petition is insufficient to exhaust a federal constitutional claim in the state courts. See, e.g., Baldwin v. Reese, 541 U.S. 27, 33 (2004) (emphasis added).
A federal habeas petitioner has not exhausted a federal habeas claim if they still have the right to raise the claim “by any available procedure” in the state courts. 28 U.S.C. § 2254(c). Because the exhaustion requirement refers only to remedies still available to the petitioner at the time they file their action for federal habeas relief, it is satisfied if the petitioner is procedurally barred from pursuing their claim in the state courts. See, e.g., Woodford v. Ngo, 548 U.S. 81, 92-93 (2006). If it is clear the habeas petitioner's claim is procedurally barred pursuant to state law, the claim is exhausted by virtue of the petitioner's “procedural default” of the claim. See, e.g., Id., 548 U.S. at 92. “An implied procedural bar ... occurs when the petitioner has failed to fairly present his claims to the highest state court and would now be barred by a state procedural rule from doing so.” Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). An implied procedural bar may be applied to unexhausted claims where, as in this matter, a state's procedural rules regarding waiver and the preclusion of claims make a return to state court futile. Coleman, 501 U.S. at 735 n.1; Franklin v. Johnson, 290 F.3d 1223, 1230-31 (9th Cir. 2002).
Review of the merits of a procedurally defaulted claim is barred absent a showing of both cause and prejudice. E.g., Ellis v. Armenakis, 222 F.3d 627, 632 (9th Cir. 2000). Under the “cause” prong of this test, the petitioner must establish an objective factor external to the defense impeded their compliance with Arizona's procedural rules. See Moorman v. Schriro, 426 F.3d 1044, 1058 (9th Cir. 2005); Vickers v. Stewart, 144 F.3d 613, 617 (9th Cir. 1998); Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996). Examples of cause sufficient to excuse a procedural default include a showing that the factual or legal basis for a claim was not reasonably available, or that “some interference by officials” made compliance with the state's procedural rules impracticable. Murray v. Carrier, 477 U.S. 478, 488 (1986). To establish prejudice a habeas petitioner must show the alleged error “worked to [their] actual and substantial disadvantage, infecting [the] entire trial with error of constitutional dimensions.” Id. at 494 (internal quotations and emphasis omitted). See also Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011). It is the petitioner's burden to establish both cause and prejudice with regard to their procedural default of a federal habeas claim in the state courts. See Djerf v. Ryan, 931 F.3d 870, 880 (9th Cir. 2019).
Petitioners who default federal habeas claims may also obtain review if they show that a failure to consider the claims would result in a fundamental miscarriage of justice. See, e.g., Bradford v. Davis, 923 F.3d 599, 610 (9th Cir. 2019). A petitioner meets the “fundamental miscarriage of justice” exception only by establishing that, under the probative evidence, they have a colorable claim of factual, rather than legal, innocence. Bousley v. United States, 523 U.S. 614, 623 (1998); Cook v. Schriro, 538 F.3d 1000, 1028 (9th Cir. 2008).
Navarrette failed to properly exhaust his federal habeas claims in the state courts because he did not present the claims raised in his federal habeas petition to the Arizona Court of Appeals in a procedurally correct manner. Navarrette did not assert any claims in the Arizona Court of Appeals in his direct appeal; his appointed appellate counsel filed an Anders brief and, although Navarrette was given leave to file a pro per brief, he failed to do so. Navarrette presents no evidence that he timely filed a post-conviction petition after the Arizona Supreme Court denied review in his direct appeal. Furthermore, absent limited exceptions not applicable to Navarrette, the only claims cognizable in a state postconviction action are those asserting ineffective assistance of counsel.
Navarrette fails to show cause for, or prejudice arising from his procedural default of his federal habeas claims. Nor does Navarrette make a persuasive argument that a fundamental miscarriage of justice will occur absent a consideration of the merits of his federal habeas claims.
B. Navarrette's claims are not cognizable and are without merit
In Ground One, 1. Navarrette contends he was subjected to manifest injustice, requiring a new trial pursuant to “Rule 59.” He contends the victim's testimony was inconsistent with the police reports and that the prosecution “moved to suppress some material facts on the ground that there was no probable cause.” (ECF No. 1 at 6).
Navarrette fails to state a cognizable claim for federal habeas relief. Pursuant to the rules governing § 2254 relief, a habeas petition must specify all the grounds for relief available to the petitioner and “state the facts supporting each ground.” Rule 2(c), Rules Governing Section 2254 Cases, cited in Clark v. Broomfield, 83 F.4th 1141, 1148 (9th Cir. 2023). Although pro se federal habeas petitions are construed more liberally than counseled petitions, the petition must still allege sufficient facts to state a cognizable claim under 28 U.S.C. § 2254. See Clark, 83 F.4th at 1148. Navarrette fails to explicate sufficient facts to support a claim that his federal constitutional rights were violated by the introduction of any specific testimony and he does not clarify what “material facts” the prosecution sought to suppress or whether these facts were indeed suppressed.
Additionally, § 2254 permits the Court to entertain a habeas petition only on the ground that the petitioner is in custody in violation of the Constitution or laws or treaties of the United States. Navarrette fails to identify which specific constitutional right he believes was violated, and he does not clarify whether he seeks relief pursuant to a federal or state “Rule 59.” Rule 59 of the Federal Rules of Civil Procedure provides that a federal court may grant a new trial or alter or amend the judgment of the federal court in a federal matter, i.e., when the trial or judgment was entered by the federal, rather than the state, court; this rule does not provide an avenue of relief by means of a § 2254 petition for an inmate who has been convicted in a state criminal matter. Rule 59 of the Arizona Rules of Criminal Procedure, governing altering or amending a judgment following a nonjury trial, is not applicable because Navarrette was convicted following a jury trial.
Navarrette also alleges he was denied his rights pursuant to the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to United States Constitution. He maintains his due process and equal protection rights were violated because he
... was not allowed to have an effective attorney that would solitify [sic] the petitioners [sic] Due Process Rights would not be violated. The Petitioner wanted to testify at trial due to the inconsistencies of the prosecutor, and the
State never demonstrated any probable cause that would solitify [sic] that the Petitioner would be guilty beyond a reasonable doubt.(ECF No. 1 at 7).
To the extent Navarrette asserts an insufficiency of the evidence claim, the claim is also procedurally defaulted and Navarrette has not established cause for or prejudice arising from his procedural default of this claim. And, notably, Navarrette did testify at his trial (ECF No. 6-3 at 806-40, 863-901), contradicting the victim's testimony that the sexual contact was non-consensual. Additionally, to the extent Navarrette asserts a Sixth Amendment claim of ineffective assistance of trial counsel, this claim is also procedurally defaulted. Furthermore, the entire record in this matter, including Navarrette's pretrial proceedings, the transcripts of the settlement conference, and the transcripts of Navarrette's trial, reveal defense counsel was thoroughly familiar with the facts and evidence, counsel presented a comprehensive and reasonable defense theory of the evidence and the case, counsel competently and vigorously examined the witnesses, and counsel communicated effectively with Navarrette throughout the pretrial and trial proceedings. That Navarrette's trial counsel's performance was not unconstitutionally ineffective is also supported by the fact that Navarrette was acquitted on one of the charged counts. Moreover, the trial transcripts indicate there was sufficient evidence from which the jury could find Navarrette guilty on the counts of conviction; as in similar cases, where both the victim and the accused testify, the jury was faced with a choice of credibility as to whether the sexual contact was consensual or not consensual, and the jury believed the testimony of the victim.
Prior to trial, at a Donald hearing, Navarrette was informed that he faced a minimum sentence of 14 years' imprisonment if convicted of only a single charge and a maximum sentence of 88 years' imprisonment if he was convicted on all counts. After being so informed Navarrette rejected a plea offer providing he would plead guilty to three counts and be sentenced to a prison term of three to 7.5 years' imprisonment followed by lifetime supervised probation. (ECF No. 163 at 116).
In his third claim for relief Navarrette asserts his due process rights were violated because the Arizona Rules of Criminal Procedure were not followed, citing to subsections of an unspecified rule of the Arizona Rules of Criminal Procedure. This claim is not cognizable in a § 2254 action. To be eligible for federal habeas corpus relief, a state prisoner must establish that he is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Federal habeas corpus relief is not available for errors of state law. E.g., Lewis v. Jeffers, 497 U.S. 764, 780 (1990). Federal courts are without jurisdiction to review a state court's applications of its own procedural rules. See, e.g., Poland v. Stewart, 169 F.3d 573, 584 (9th Cir. 1998). Navarrette fails to state a cognizable claim for relief because the violation of a state criminal procedural rule does not establish a defendant's federal constitutional right to due process was violated. See Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (“We have stated many times that ‘federal habeas corpus relief does not lie for errors of state law.'”); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996) (stating “alleged errors in the application of state law are not cognizable in federal habeas corpus”); Floyd v. Alexander, 148 F.3d 615, 619 (6th Cir. 1998). Navarrette may not “transform a state-law issue into a federal one merely by asserting a violation of due process.” Langford, 110 F.3d at 1389.
Accordingly, IT IS RECOMMENDED that the petition seeking a federal writ of habeas corpus at ECF No. 1 be DENIED.
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.
Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the 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 ten (10) pages in length. Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts requires the district court to “issue or a deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254. The undersigned recommends that, should the Report and Recommendation be adopted and, should Navarrette seek a certificate of appealability, a certificate of appealability should be denied because he has not made a substantial showing of the denial of a constitutional right.