Opinion
CV-20-02450-PHX-DGC (JZB)
12-27-2021
Alexander Duane Odette, Petitioner, v. David Shinn, Respondent.
THE HONORABLE DAVID G. CAMPBELL, SENIOR UNITED STATES DISTRICT JUDGE
REPORT & RECOMMENDATION
Honorable John Z. Boyle United States Magistrate Judge
Petitioner has filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1, “Petition.”)
I. Summary of Conclusion.
Petitioner pleaded guilty to sexual misconduct with a minor and unsuccessfully sought post-conviction relief (“PCR”). Petitioner filed a habeas petition in this Court raising four grounds for relief. However, those grounds are non-cognizable, without merit, or procedurally defaulted. Accordingly, the Court recommends the Petition be denied and dismissed with prejudice.
II. Background.
As summarized by the Arizona Court of Appeals:
The Court presumes the state court's summary of the facts is correct. 28 U.S.C. § 2254(e)(1); Purkett v. Elem, 514 U.S. 765, 769 (1995).
Odette pled guilty to sexual conduct with a minor and two
counts of attempt to commit sexual conduct with a minor. Consistent with the parties' stipulations in the plea, the superior court imposed a slightly mitigated 19-year prison sentence on the completed offense and lifetime probation on the attempt convictions.
Odette timely sought post-conviction relief. After reviewing the file and conferring with Odette, appointed counsel found no colorable claim for relief. Odette proceeded as a selfrepresented litigant and challenged the indictment and grand jury proceedings. Odette also argued his sentence was improperly aggravated, a confrontation call recording was inadmissible, and ineffective assistance of counsel during plea and post-conviction relief proceedings. The State filed its response at 12:20 a.m. the day after it was due. Referring to the State's untimeliness, Odette unsuccessfully moved to preclude the response. The court later dismissed Odette's petition.State v. Odette, 2019 WL 4271907, at *1 (Ariz.Ct.App. Sept. 10, 2019).
The Arizona Court of Appeals granted review but denied relief. (Doc. 16-2, Ex. Q, at 121-23; see Doc. 16-2, Ex. O, at 76-84 (Petition for Review).) Petitioner did not seek review by the Arizona Supreme Court; on December 9, 2019, the Arizona Court of Appeals issued its mandate. (Doc. 16-2, Ex. R, at 123.)
III. Petition for Writ of Habeas Corpus.
Petitioner placed his Petition in the prison mailing system, and therefore filed it, on December 16, 2020. (Doc. 1 at 16.) As summarized by the Court, the Petition raises four grounds for relief:
Under the “mailbox rule,” a document filed by a pro se prisoner litigant is deemed “filed” on “the date the document is delivered to a prison official for mailing.” Stewart v. Cate, 757 F.3d 929, 933 n.3 (9th Cir. 2014).
In Ground One, Petitioner alleges that his attorney provided ineffective assistance.
In Ground Two, he alleges that his due process and equal protection rights were violated when “counsel was not appointed timely,” and the state “did not follow” various statutes and “failed to follow proper sentencing guidelines for first-time offenders.”
In Ground Three, Petitioner alleges that the trial court abused its discretion in various ways.
In Ground Four, Petitioner alleges that various “court rules” were “violated.”(Doc. 4 at 1-2.) On April 29, 2021, Respondents filed a Limited Answer. (Doc. 16.) On June 25, 2021, Petitioner filed a Reply. (Doc. 21.)
IV. Timeliness .
A. Statute of Limitations.
Whether a habeas petition is timely is a threshold issue the Court must resolve before considering its merits. See White v. Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2002). “The federal Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a 1-year statute of limitations for filing a federal habeas corpus petition.” Pace v. DiGuglielmo, 544 U.S. 408, 410 (2005); see 28 U.S.C. § 2244(d)(1). In general, the limitations period runs from the date “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); see Gonzalez v. Thaler, 565 U.S. 134, 150 (2012).
On September 10, 2019, the Arizona Court of Appeals denied relief on Petitioner's claims. (Doc. 16-2, Ex. Q, at 121-23.) Petitioner had 35 days, until October 15, 2019, in which to seek review in the Arizona Supreme Court. See Ariz. R. Crim. P. 31.19(a) (providing that a petition for review to the Arizona Supreme Court must be filed within 30 days from the Arizona Court of Appeals decision); Ariz. R. Crim. P. 1.3 (adding five days for mailing); Hemmerle v. Schriro, 495 F.3d 1069, 1074 (9th Cir. 2007) (for purposes of § 2244(d)(1)(A), direct review is final upon conclusion of direct review or the time to seek such review). Petitioner did not seek further review, so the one-year statute of limitations would typically commence on October 15, 2019. The instant Petition was filed on December 16, 2020.
But, as disclosed by Respondents, the Arizona Court of Appeals issued the mandate on December 9, 2019. (Doc. 16-2, Ex. R, at 125.) AEDPA provides that “[t]he time during which a properly filed application for State post-conviction . . . review . . . is pending shall not be counted toward any period of limitation.” 28 U.S.C. § 2244(d)(2). The Court assumes without deciding that the Petition was due on December 9, 2020, one year after the Court of Appeals issued the mandate. See Celaya v. Ryan, 497 Fed. App'x. 744, 745, 2012 WL 5505736, at *1 (9th Cir. 2012) (“Under Arizona law, Celaya's post-conviction review (“PCR”) petition was ‘pending' until the Arizona Court of Appeals issued the mandate”); Wells v. Ryan, 2015 WL 9918159, at *9 (D. Ariz. Aug. 13, 2015), report and recommendation adopted, 2016 WL 319529 (D. Ariz. Jan. 27, 2016) (“[W]hen the Arizona Court of Appeals grants review of the trial court's decision on a petition for post-conviction relief but denies relief, and the petitioner does not seek further review, the post-conviction proceeding is pending until the date the appellate court issues its mandate.”). Petitioner placed his Petition in the prison mailing system-and therefore “filed” it-on December 16, 2020. (Doc. 1 at 16.) The Petition is therefore untimely by one week.
Petitioner maintains the Petition is timely because he filed a motion for reconsideration in the Arizona Court of Appeals before it issued the mandate. (Doc. 21 at 4.) But the Arizona Court of Appeals denied this motion on November 12, 2019, almost a month before the mandate issued, so Petitioner has already been afforded any additional tolling associated with that motion.
B. Equitable Tolling.
Petitioner may be entitled to equitable tolling. To qualify for equitable tolling, a petitioner must show “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 648 (2010) (quoting Pace, 544 U.S. at 418). “The diligence required . . . is ‘reasonable diligence,' not ‘maximum feasible diligence.'” Holland, 560 U.S. at 653. However, “the threshold necessary to trigger equitable tolling . . . is very high, lest the exceptions swallow the rule.” Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009) (cleaned up). Thus, “equitable tolling is available . . . only when extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time and the extraordinary circumstances were the cause of the prisoner's untimeliness.” Ford v. Gonzalez, 683 F.3d 1230, 1237 (9th Cir. 2012) (cleaned up).
Here, Petitioner asserts that his “unit started lockdown in April 2020 till October 2020, opened briefly, then locked down again in November 2020 till current.” (Doc. 21 at 5.) While “[deprivation of legal materials is the type of external impediment for which . . . equitable tolling” may be granted, the petitioner must show that “the hardship caused by lack of access to his materials was an extraordinary circumstance that caused' his untimely filing. Waldron-Ramsey, 556 F.3d at 1013 (emphasis added). Petitioner does not explain how the lockdown between April and November 2020, or any other time, caused the untimely filing, i.e., how it actually prevented him from filing a habeas petition before December 9, 2020. Nothing precludes a petitioner from filing an incomplete habeas petition and then later amending it. But the Petition is overdue by one week and certainly the disruption caused by COVID-19 is significant. See, e.g., McWhorter v. Davis, 2021 WL 5639209, at *5 (E.D. Cal. 2021) (granting equitable tolling request due in part to “the specific impacts of the ongoing, and often changing, COVID-19 pandemic”). Because the Petition is more easily resolved on other grounds, the Court will recommend the Court forego a decision on equitable tolling and timeliness. See Day v. McDonough, 547 U.S. 198, 209-10 (2006) (noting a court has the discretion to decide whether the administration of justice is better served by “addressing the merits or by dismissing the petition as time barred.”).
V. Requisites for Federal Review.
A. Cognizable Federal Claim.
“In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991); see 28 U.S.C. § 2254(a). Alleged errors in the state courts' interpretation or application of state law are not cognizable on habeas review. Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (“[F]ederal habeas corpus relief does not lie for errors of state law.”); see also Estelle, 502 U.S. at 63 (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”). A petitioner cannot “transform a state-law issue into a federal one merely by asserting a violation of due process.” Langfordv. Day, 110 F.3d 1380, 1389 (9th Cir. 1996).
B. Exhaustion of State Remedies.
“Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (cleaned up); see 28 U.S.C. § 2254(b)(1). “To provide the State with the necessary ‘opportunity,' the prisoner must ‘fairly present' his claim in each appropriate state court.” Baldwin, 541 U.S. at 29 (citations omitted). Fair presentation requires the prisoner to “clearly state the federal basis and federal nature of the claim, along with relevant facts.” Cooper v. Neven, 641 F.3d 322, 326 (9th Cir. 2011).
“To exhaust one's state court remedies in Arizona, a petitioner must first raise the claim in a direct appeal or collaterally attack his conviction in a petition for post-conviction relief.” Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). In non-capital cases, claims of Arizona prisoners “are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.” Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); see Crowell v. Knowles, 483 F.Supp.2d 925, 933 (D. Ariz. 2007).
C. Absence of State Procedural Bars.
“[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). To preclude federal review, the state procedural rule must be a “nonfederal ground adequate to support the judgment” and “firmly established and consistently followed.” Id. “Arizona's waiver rules are independent and adequate bases for denying relief.” Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014) (citing Stewart v. Smith, 536 U.S. 856, 859-60 (2002)); see Ariz. R. Crim. P. 32.2(a)(3) (“A defendant is precluded from relief . . . based on any ground: . . . (3) waived at trial, on appeal, or in any previous collateral proceeding.”); Stewart v. Smith, 202 Ariz. 446, 449-50 (2002) (holding a defendant's failure to assert a claim of error “at trial, on appeal, or in a previous collateral proceeding” waives the claim unless the claim implicates a right “of sufficient constitutional magnitude to require personal waiver by the defendant”).
Effective January 1, 2020, the Arizona Supreme Court abrogated former Rule 32 and divided its substance among new Rule 32 (applying to defendants convicted at trial) and new Rule 33 (applying to defendants who pled guilty or no contest). Ariz. Sup. Ct. Order No. R-19-0012, available at https://www.azcourts.gov/rules/Recent-Amendments/Rules-of-Criminal-Procedure. The new rules apply to PCR proceedings initiated or pending on or after January 1, 2020 except where “applying the rule or amendment would be infeasible or work an injustice.” Id.; see State v. Mendoza, 467 P.3d 1120, 1122 n.1 (Ariz.Ct.App. 2020); McCray v. Shinn, No. CV-17-01658-PHX-DJH, 2020 WL 919180, at *4 n.4 (D. Ariz. Feb. 26, 2020); Demaree v. Sanders, No. CV-17-00294-TUC-EJM, 2020 WL 2084582, at *2 n.4 (D. Ariz. Apr. 30, 2020). Any reference to the Rule 32 in this Report is to the pre-2020 amendment version unless otherwise specified.
A claim may be expressly or implicitly barred by a state procedural rule. Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). “An express procedural bar occurs when the petitioner has presented his claim to the state courts and the state courts have relied on a state procedural rule to deny or dismiss the claim. An implied procedural bar, on the other hand, 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.” Id.
A prisoner can overcome a state procedural bar and obtain federal review of an otherwise barred claim by showing either (1) “cause for the default and resulting prejudice” or (2) that “a fundamental miscarriage of justice” would occur in the absence of federal review. Moormann v. Schriro, 426 F.3d 1044, 1058 (9th Cir. 2005) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)). “‘Cause' . . . must be something external to the petitioner, something that cannot fairly be attributed to him.” Coleman, 501 U.S. at 753. The fundamental miscarriage of justice “exception is limited to those who are actually innocent.” Polandv. Stewart, 117 F.3d 1094, 1106 (9th Cir. 1997).
VI. Analysis.
A. Ground One.
In Ground One, Petitioner claims his counsel was ineffective for not raising “effective challenges to the state's motion to amend the indictment and enhance the charges” or providing “any meaningful defense to the charges.” (Doc. 1 at 6; see Doc. 21 at 8-14.) Petitioner further alleges his counsel “was insistent upon taking a plea.” (Doc. 1 at 6.) Petitioner is not entitled to relief on Ground One because Petitioner fails to show that he pleaded guilty because of ineffective assistance of counsel, and he waived any other claims of ineffective assistance of counsel in his plea agreement. (See Doc. 16-1, Ex. D, at 15-18.)
When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within [constitutional] standards.Toilet v. Henderson, 411 U.S. 258, 267 (1973); see also United States v. Lopez-Armenta, 400 F.3d 1173, 1175 (9th Cir. 2005) (“[I]t is well-settled that an unconditional guilty plea constitutes a waiver of the right to appeal all nonjurisdictional antecedent rulings and cures all antecedent constitutional defects.”).
The only claim in Ground One that, liberally construed, attacks the voluntariness of Petitioner's plea is his claim that counsel “was insistent upon [him] taking a plea.” (Doc. 1 at 6.) Petitioner provides no further explanation of this claim in his Petition. To establish counsel was ineffective with respect to the plea, a petitioner “must show that (1) counsel's representation fell below the range of competence demanded of attorneys in criminal cases, and (2) ‘there is a probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.'” Washington v. Lampert, 422 F.3d 864, 873 (9th Cir. 2005) (citation omitted).
In his Reply, Petitioner asserts counsel failed to prepare an adequate defense, challenge the amendment of the indictment or allegation of historical priors, or challenge “confrontation call” transcripts. (Doc. 21 at 9-14.) He does not explain how his counsel “insisted” he take the plea offer.
Petitioner does not make the required showing. Petitioner rests his claim on a conclusory allegation that his counsel was “insistent” on him taking the plea and alleged ineffectiveness of counsel with respect to other issues. (Doc. 21 at 9-14.) Critically, Petitioner does not allege how his counsel was ineffective with respect to the plea, specifically, e.g., by providing deficient advice or failing to inform him of his options. See, e.g., Toilet, 411 U.S. at 267 (holding petitioner may “attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within [constitutional] standards”); United States v. Wilson, 719 F.Supp.2d 1260, 1269 (D. Or. 2010) (“The failure to properly advise a defendant of available options, and possible consequences relevant to plea negotiations can constitute ineffective assistance of counsel.”). Absent specific allegations to such, Petitioner's claim fails. See Jones v. Gomez, 66 F.3d 199, 205 (9th Cir. 1995) (“Jones's conclusory suggestions that his trial and state appellate counsel provided ineffective assistance fall far short of stating a valid claim of constitutional violation.”); James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (“Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.”).
Even if Petitioner sufficiently raised this claim in the Petition, he fails to demonstrate that the rulings of the Arizona courts were “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or were “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2554(d). The trial court ruled:
Defendant Odette argues he wanted to go to trial but his attorney, the prosecutor, and judge continuously encouraged him to take the plea because they did not feel he should go to trial. This allegation is not factually supported by the record. At the change of plea proceeding, Defendant was advised of the rights he would give up by pleading guilty. He stated he wanted to give up those rights. Further, he stated no one had forced or threated him to get him to admit to the charges. During the settlement conference, Defendant's admissions made during the confrontation call were discussed at length and those admissions appeared to be the reason he chose to plead guilty for a reduced sentence. The Court finds no basis for post-conviction relief on this ground.(Doc. 16-2, Ex. L, at 66.)
The Arizona Court of Appeals found Petitioner waived his ineffective assistance of counsel claims and did not address this specific allegation. (Doc. 16-2, Ex. Q, at 122.) This is the last reasoned decision in the record on this point. Petitioner did not allege his plea was involuntary in the Arizona Court of Appeals, so the claim is also unexhausted and procedurally defaulted without excuse.
Petitioner does not dispute these findings and they are supported in the record. During his guilty plea proceeding, Petitioner answered “no” when the court asked him if “anyone forced or threatened you to get you to admit the charges.” (Doc. 16-1, Ex. E, at 30.) At sentencing, Petitioner did not contest his guilty plea and said he “found out how easy the freedoms I had can be taken away by any of my actions.” (Doc. 16-1, Ex. G, at 54.) Petitioner faced four charges of Sexual Conduct with a Minor, each of which carried presumptive prison terms of 20 years imprisonment. (Doc. 16-1, Ex. D, at 16.) The court advised Petitioner that he “was looking at no less than 80 years, if you lose at trial, no less than 80 years.” (Doc. 16-1, Ex. E, at 26.) Petitioner fails to demonstrate that a probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.
Petitioner also alleges counsel failed to effectively challenge the “State's motion to amend the indictment and enhance charges” and “did not present any meaningful defense to the charges.” (Doc. 1 at 6.) Petitioner waived these ineffective assistance claims in Ground One by pleading guilty. Toilet, 411 U.S. at 267; Lopez-Armenta, 400 F.3d at 1175. Accordingly, the Court recommends Ground One be dismissed as waived and without merit to the extent detailed above.
B. Ground Two.
In Ground Two, Petitioner asserts “violations” of the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution and various sections of the Arizona Constitution. (Doc. 1 at 8.) Additionally, Petitioner alleges the state court “did not follow A.R.S. § 13-4236(A), Rule 32.6(a), Rule 16.1(C), Rule 33.1,” and “proper sentencing guidelines for first time offenders [under] A.R.S. § 13-701.” (Id.) Petitioner further alleges “counsel was not appointed timely,” which left him without counsel during a “critical stage of the proceedings.” (Id.; Doc. 21 at 15-16.) Petitioner is not entitled to relief on Ground Two because his claims are waived and non-cognizable to the extent below.
Petitioner waived his right to bring these challenges to the indictment. Toilet, 411 U.S. at 267. The Supreme Court has recognized that the bar on attacking pre-plea constitutional errors applies unless the defect in question is a “jurisdictional” one that implicates the government's power to prosecute the defendant. See e.g. Menna v. New York, 423 U.S. 61, 62 (1975) (holding that bar on collateral challenges to pre-plea errors did not preclude defendant from asserting double jeopardy to indictment under which he pleaded guilty). Petitioner does not bring a jurisdictional challenge to the indictment in this case, so his claims are waived. See United States v. Johnston, 199 F.3d 1015, 1019 n.3 (9th Cir. 1999) (noting that “this circuit has held that such claims are limited to claims that the statute is facially unconstitutional; or that the indictment failed to state a valid claim; or vindictive prosecution; or possibly selective prosecution”).
In his petition for post-conviction relief, Petitioner did not allege that he was denied counsel during a “critical stage” of the indictment process or that the Arizona statutes were unconstitutional. (Doc. 16-2, Ex. I, at 11.) Although he now brings these claims in his Reply (doc. 21 at 19-20), he was required to present them in the Arizona courts. He failed to bring these claims in both Arizona courts, so they are also unexhausted and procedurally defaulted.
Finally, his claim appears to proceed from the notion that he was denied “any notification by the courts of the date and time of the [indictment] proceeding, which would allow the opportunity to defend against the charges in front of the grand jury which is a right protected by the Constitution.” (Doc. 16-2, Ex. I, at 11.) Petitioner was not entitled to be present at the grand jury or entitled to present his own evidence. See United States v. Salsedo, 607 F.2d 318, 319 (9th Cir. 1979) (“an accused has ... no right of cross-examination, or of introducing evidence to rebut (a) prosecutor's presentation.”) (citation and quotations omitted). A criminal defendant has a right to counsel “during all critical stages of the criminal process.” Nunes v. Mueller, 350 F.3d 1045, 1052 (9th Cir. 2003). “A critical stage is a ‘trial-like confrontation, in which potential substantial prejudice to the defendant's rights inheres and in which counsel may help avoid that prejudice.'” United States v. Leonti, 326 F.3d 1111, 1117 (9th Cir. 2003) (citation omitted). Petitioner has not established he was denied counsel during a critical stage of his proceedings.
The remaining claims of Ground Two are premised on alleged violations of state law and therefore non-cognizable in this proceeding. Swarthout, 562 U.S. at 219; Estelle, 502 U.S. at 68. Petitioner cannot convert these state-law issues into cognizable federal issues simply by characterizing them as violations of federal due process. Langford, 110 F.3d at 1389.
Accordingly, the Court recommends Ground Two be dismissed for lack of merit and lack of a cognizable claim to the extent detailed above.
C. Ground Three.
In Ground Three, Petitioner alleges the PCR court abused its discretion by considering the state's untimely response, denying his motion to preclude the state's untimely response without allowing him to file a reply, and admitting “erroneous” transcripts into evidence. (Doc. 1 at 9; Doc. 21 at 23-24.) Petitioner further alleges he never received a transcript of the confrontation call requested during the PCR proceeding. (Doc. 1 at 9; Doc. 21 at 24-26.) Petitioner is not entitled to relief on Ground Three because these claims are either procedurally defaulted or non-cognizable.
Petitioner did not claim he was wrongfully denied any transcripts in his petition for review before the Arizona Court of Appeals. (See Doc. 16-2, Ex. O, at 76-84.) Therefore, this claim is unexhausted. Swoopes, 196 F.3d at 1010. The claim is procedurally defaulted because a return to state court to exhaust it would be futile as Ariz. R. Crim. P. 32.2(a)(3) bars Petitioner from asserting it now. See Beaty, 303 F.3d at 987. Petitioner does not show, or attempt to show, cause to excuse the procedural default or that review is needed to prevent a fundamental miscarriage of justice.
The remaining claims of Ground Three allege procedural errors in Petitioner's PCR proceeding, which are non-cognizable in this proceeding. See Cooper v. Neven, 641 F.3d 322, 331-32 (9th Cir. 2011) (“[A] petition alleging errors in the state post-conviction review process is not addressable through habeas corpus proceedings.”) (citation omitted); Poland v. Stewart, 169 F.3d 573, 584 (9th Cir. 1999) (“Federal habeas courts lack jurisdiction . . . to review state court applications of state procedural rules.”).
Accordingly, the Court recommends Ground Three be dismissed as procedurally defaulted and non-cognizable to the extent detailed above.
D. Ground Four.
In Ground Four, Petitioner alleges “the state violated several rules of the court when responding to [his] Rule 32 petition and when adjudicating on motions filed.” (Doc. 1 at 11; see Doc. 21 at 23-26.) Petitioner is not entitled to relief on Ground Four because these claims are premised on alleged errors in the state court's application of state procedural rules, which are non-cognizable in this proceeding. See Cooper, 641 F.3d at 331-32; Poland, 169 F.3d at 584. Accordingly, the Court recommends Ground Four be dismissed as non-cognizable.
VII. Conclusion.
Petitioner's claims to habeas relief are waived, non-cognizable, or without merit. Accordingly, the Court recommends the Petition be denied and dismissed with prejudice. The record is sufficiently developed; an evidentiary hearing is not necessary for resolution of the matter. See Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 2011).
VIII. Certificate of Appealability.
“The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11(a), Rules Governing Section 2254 Cases, 28 U.S.C. § 2254. The Court may issue a certificate of appealability “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Petitioner has not made the requisite showing here; the Court therefore recommends a certificate of appealability be denied.
IT IS RECOMMENDED that the Petition for a Writ of Habeas Corpus (doc. 1) be denied and dismissed with prejudice.
IT IS FURTHER RECOMMENDED that a certificate of appealability 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 Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have 14 days from the date of service of a copy of this 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 14 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.