Opinion
No. CV-18-00932-PHX-NVW (BSB)
01-04-2019
Delton Prescott, Jr., Petitioner, v. Carla Hacker-Agnew, et al., Respondents.
REPORT AND RECOMMENDATION
Petitioner Delton Prescott, Jr. has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) In their answer, Respondents argue that Petitioner is not entitled to habeas corpus relief. (Doc. 14.) Petitioner has filed a reply in support of his petition. (See Doc. 15.) As set forth below, the Court recommends that the petition be denied.
I. Procedural Background
A. Charges, Trial, and Sentencing
On March 17, 2014, Petitioner was indicted in Maricopa County Superior Court, Case No. CR-2014-111126-001. The indictment alleged two counts involving the sale or transportation of dangerous drugs (Counts 1 and 3), two counts of use of wire communication or electronic communication in drug-related transactions (Counts 2 and 4), one count of possession of dangerous drugs for sale (Count 5), and two counts of possession of drug paraphernalia (Counts 6 and 7). (Doc. 14, Ex. A.) Following a trial, a jury found Petitioner guilty of all charges. (Doc. 14, Ex. D at 2.) The trial court sentenced Petitioner to several concurrent terms of imprisonment, the longest of which was ten years. (Id. at 3-4.)
B. Direct Appeal
Petitioner appealed to the Arizona Court of Appeals. (Doc. 14, Ex. E.) Petitioner raised the following claims: (1) the trial court erred, and violated Petitioner's constitutional right to a unanimous jury verdict, by permitting the State to introduce multiple criminal acts to prove Counts 1, 3, and 5; (2) the trial court "substantively amended the indictment" in violation of Arizona Rule of Criminal Procedure 13.5; (3) Petitioner's sentence violated Arizona law because the jury did not make any finding regarding methamphetamine; and (4) his sentence violated the rule in Alleyne v. United States, 570 U.S. 99 (2013), because the jury did not specifically find that methamphetamine was the underlying substance in Counts 1, 3, and 5. (Doc. 14, Ex. E at 10-22.) The Arizona Court of Appeals rejected Petitioner's claims and affirmed his convictions. (Doc. 14, Ex. H.) On Petitioner's motion, the court granted Petitioner an extension of time to file a petition for review in the Arizona Supreme Court. (Doc. 14, Ex. AA.) Petitioner, however, did not file a petition for review. (Doc. 14, Ex. I.)
C. Post-Conviction Review
On March 31, 2016, Petitioner filed a notice of post-conviction relief in the trial court. (Doc. 14, Ex. J.) The court appointed counsel. (Doc. 14, Ex. K.) On Petitioner's motion, the court subsequently permitted Petitioner to represent himself and allowed counsel to withdraw. (Doc. 14, Ex. M.) Petitioner filed a petition for post-conviction relief alleging that trial counsel was ineffective (1) during plea negotiations, (2) during voir dire, and (3) for failing to adequately frame issues, prepare jury instructions, and prepare to present testimony. (Doc. 14, Ex. N at 3-8.) Petitioner further alleged that the trial court erred by amending the indictment and transferring a question of law to the jury. (Id. at 3, 9.) Petitioner also alleged that the State failed to prove the charges beyond a reasonable doubt, and that he was "actually innocent" of the charges. (Id. at 9-10.) The trial court rejected Petitioner's claims and denied post-conviction relief. (Doc. 14, Ex. Q.)
On June 8, 2016, Petitioner filed a petition for review in the Arizona Court of Appeals. (Doc. 14, Ex. R.) Petitioner argued that "the dismissal of Judge Mroz is incorrect and inapposite relative to the Strickland test, as cited, and incomplete as to those matters beyond IAC." (Id. at 2.) To support that assertion, Petitioner "incorporated by reference" his petition for post-conviction relief, which he attached as an appendix. (Id.) The Arizona Court of Appeals granted review but denied relief. (Doc. 14, Ex. U at 4.) The court explained Petitioner had not met his burden of showing that the post-conviction court had abused its discretion by denying post-conviction relief. (Id.) Petitioner did not seek further review. (See Doc. 14, Ex. V.)
D. Federal Petition for Writ of Habeas Corpus
On March 26, 2016, Petitioner filed a petition for writ of habeas corpus in this Court. (Doc. 1.) Petitioner raises four grounds for relief. (Id.) In Ground One, Petitioner alleges that the indictment was defective and was improperly amended. (Id. at 6.) Petitioner alleges that, as a result, "the probability that a unanimous verdict was returned where some jurors may have found one instance or the other, but not simultaneously in conjunction," violated his Fifth and Fourteenth Amendment right to "fair notice by presentment before a grand jury" and his Sixth Amendment right to an impartial jury. (Id.)
Petitioner asserts that his petition is "intended to reallege in a comprehensive and condensed format" the claims asserted on direct and post-conviction review. (Doc. 1 at 6.) The Court, however, considers only the claims that Petitioner includes in his petition. Petitioner's grounds for relief include multiple sub-claims. For ease of reference, the Court identities the sub-claims by letters.
In Ground Two, Petitioner alleges that there were defective trial and post-conviction proceedings, in violation of his Fifth and Fourteenth Amendment rights. (Id. at 7.) Petitioner asserts the following sub-arguments in Ground Two: (a) the trial court "ratified the clearly improper presentations by the State," rather than correcting defects in the indictment or providing a curative alternative; (b) the trial court allowed the trial "to be expanded to address issues" that were not presented in the indictment; (c) the trial court improperly instructed the jury; (d) less than twenty-four hours after being assigned Petitioner's petition for post-conviction relief, the trial court found "no colorable claims" of ineffective assistance of counsel, based on the arguments in the State's response, "without recognizing that the court had made the appointment, constituting denial of counsel"; and (e) the trial court improperly sentenced Petitioner under "the far more punitive meth statute," in the absence of a jury finding regarding methamphetamine. (Id.)
The Court identifies the subclaims in Ground Two as Grounds Two (a) through (e). In their response, Respondents' refers to subclaims (a) through (d) as Ground Two (a) and refer to Ground Two (e) as Ground Two (b). (Doc. 14 at 6-7.) The Court uses its designations to refer to the sub-claims.
In Ground Three, Petitioner asserts that trial counsel was ineffective for (a) failing to properly advise him regarding a five-year plea offer, (b) failing to aggressively represent him during jury selection, resulting in a jury "devoid of African-American members," (c) failing to prepare for trial, (d) failing to obtain an independent lab analysis to identify the alleged illegal substances at issues, and (e) failing to challenge the amendment of the indictment. (Id. at 8.)
In Ground Four, Petitioner alleges that his sentencing was improper because the presence of methamphetamine was not proven beyond a reasonable doubt and, therefore, he should have been sentenced under the "generic scale for dangerous drugs," instead of under the sentencing range applicable to methamphetamine. (Id. at 9.)
Respondents asserts that the claims asserted in Ground One, Ground Two (a)-(d), and Ground Three are procedurally barred from federal habeas corpus review. (Doc. 14 at 9-22.) Respondents argue that Ground Four does not present a claim that is cognizable on federal habeas corpus review. (Id. at 25.) Respondents further argue that, while Ground 2 (e) may be properly before the Court, Petitioner is not entitled to habeas corpus relief on that claim. (Id. at 26-30.)
II. Exhaustion and Procedural Bar
Ordinarily, a federal court may not grant a petition for writ of habeas corpus unless the petitioner has exhausted available state remedies. 28 U.S.C. § 2254(b). To exhaust state remedies, a petitioner must afford the state courts the opportunity to rule upon the merits of his federal claims by "fairly presenting" them to the state's "highest" court in a procedurally appropriate manner. Baldwin v. Reese, 541 U.S. 27, 29 (2004) ("[t]o provide the State with the necessary 'opportunity,' the prisoner must 'fairly present' his claim in each appropriate state court . . . thereby alerting that court to the federal nature of the claim"); Castille v. Peoples, 489 U.S. 346, 349 (1989) (same).
In Arizona, unless a prisoner has been sentenced to death, the "highest court" requirement is satisfied if the petitioner has presented his federal claim to the Arizona Court of Appeals either through the direct appeal process or post-conviction proceedings. Castillo v. McFadden, 399 F.3d 993, 998 (9th Cir. 2005).
A claim has been fairly presented if the petitioner has described both the operative facts and the federal legal theory on which his claim is based. See Baldwin, 541 U.S. at 33. A "state prisoner does not 'fairly present' a claim to a state court if that court must read beyond a petition or brief . . . that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so." Id. at 31-32. Thus, "a petitioner fairly and fully presents a claim to the state court for purposes of satisfying the exhaustion requirement if he presents the claim: (1) to the proper forum . . . (2) through the proper vehicle, . . . and (3) by providing the proper factual and legal basis for the claim." Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005) (internal citations omitted).
The requirement that a petitioner exhaust available state court remedies promotes comity by ensuring that the state courts have the first opportunity to address alleged violations of a state prisoner's federal rights. See Duncan v. Walker, 533 U.S. 167, 178 (2001); Coleman v. Thompson, 501 U.S. 722, 731 (1991). Principles of comity also require federal courts to respect state procedural bars to review of a habeas petitioner's claims. See Coleman, 501 at 731-32. Pursuant to these principles, a habeas petitioner's claims may be precluded from federal review in two situations.
First, a claim may be procedurally defaulted and barred from federal habeas corpus review when a petitioner failed to present his federal claims to the state court, but returning to state court would be "futile" because the state court's procedural rules, such as waiver or preclusion, would bar consideration of the previously unraised claims. See Teague v. Lane, 489 U.S. 288, 297-99 (1989); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002). If no state remedies are currently available, a claim is technically exhausted, but procedurally defaulted. Coleman, 501 U.S. at 732, 735 n.1.
Second, a claim may be procedurally barred when a petitioner raised a claim in state court, but the state court found the claim barred on state procedural grounds. See Beard v. Kindler, 558 U.S. 53 (2009). "[A] habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claim has deprived the state courts of an opportunity to address those claims in the first instance." Coleman, 501 U.S. at 731-32. In this situation, federal habeas corpus review is precluded if the state court opinion relies "on a state-law ground that is both 'independent' of the merits of the federal claim and an 'adequate' basis for the court's decision." Harris v. Reed, 489 U.S. 255, 260 (1989).
A state procedural ruling is "independent" if the application of the bar does not depend on an antecedent ruling on the merits of the federal claim. See Stewart v. Smith, 536 U.S. 856, 860 (2002); Ake v. Oklahoma, 470 U.S. 68, 74-75 (1985). A state court's application of the procedural bar is "adequate" if it is "strictly or regularly followed." See Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir. 1994). If the state court occasionally excuses non-compliance with a procedural rule, that does not render its procedural bar inadequate. See Dugger v. Adams, 489 U.S. 401, 410-12 n.6 (1989). "The independent and adequate state ground doctrine ensures that the States' interest in correcting their own mistakes is respected in all federal habeas cases." Coleman, 501 U.S. at 732. Although a procedurally barred claim has been exhausted, as a matter of comity, the federal court will decline to consider the merits of that claim. See id. at 729-32.
However, because the doctrine of procedural default is based on comity, not jurisdiction, federal courts retain the power to consider the merits of procedurally defaulted claims. See Reed v. Ross, 468 U.S. 1, 9 (1984). Generally, a federal court will not review the merits of a procedurally defaulted claim unless a petitioner demonstrates "cause" for the failure to properly exhaust the claim in state court and "prejudice" from the alleged constitutional violation, or shows that a "fundamental miscarriage of justice" would result if the claim were not heard on the merits. Coleman, 501 U.S. at 750. Additionally, pursuant to 28 U.S.C. § 2254(b)(2), the court may dismiss plainly meritless claims regardless of whether the claim was properly exhausted in state court. See Rhines v. Weber, 544 U.S. 269, 277 (2005) (holding that a stay is inappropriate in federal court to allow claims to be raised in state court if they are subject to dismissal under § 2254(b)(2) as "plainly meritless"). III. Grounds One, Two (a)-(d), and Three are Procedurally Defaulted
As discussed below, the Court concludes that Grounds One, Two (a)-(d), and Three are procedurally barred from federal habeas corpus review and Petitioner has not established a basis to overcome that bar.
A. Ground One
In Ground One, Petitioner alleges that the indictment was defective and was improperly amended. (Doc. 1 at 6.) Petitioner alleges that, as a result, "the probability that a unanimous verdict was returned where some jurors may have found one instance or the other, but not simultaneously in conjunction," violated his Fifth and Fourteenth Amendment right to "fair notice by presentment before a grand jury" and his Sixth Amendment right to an impartial jury. (Id.)
Petitioner asserts that he presented this claim on direct appeal. (Id.) On direct review, Petitioner asserted that the trial court substantively amended the indictment in violation of Rule 13.5 of the Arizona Rules of Criminal Procedure. (Doc. 14, Ex. E at 17-22.) However, Petitioner did not argue that the trial court's alleged conduct violated his Fifth, Fourteenth, or Sixth Amendment rights. (Id.) Therefore, Petitioner did not fairly present Ground One to the appellate court on direct review.
Petitioner, however, arguably presented the federal claim asserted in Ground One to the trial court in his petition for post-conviction review. (Doc. 14, Ex. N at 8 (arguing that the indictment was constructively amended by the jury instructions and citing Stirone v. United States, 361 U.S. 212 (1960)).) However, for the reasons discussed in Section III.D.2, addressing Grounds Three (a), (b), and (c). Petitioner did not fairly present this federal claim to the Arizona Court of Appeals. As discussed in Section III.E, it would be futile for Petitioner to return to the state courts to try to fairly present the federal claims asserted in Ground One.
B. Grounds Two (a) through (c)
In Ground Two (a) through (c), Petitioner alleges that (a) the trial court "ratified the clearly improper presentations by the State," rather than correcting defects in the indictment or providing a curative alternative, (b) the trial court allowed the trial "to be expanded to address issues" that were not presented in the indictment, and (c) the trial court improperly instructed the jury. (Doc. 1 at 7.)
On direct appeal and in his petition for post-conviction relief, Petitioner presented similar arguments in support of his claim that the trial court erred by substantively amending the indictment. (Doc. 14, Ex. E at 17-21; Doc. 14, Ex. N at 9.) On direct appeal, Petitioner argued the trial court improperly amended the indictment from charges of sale and possession of methamphetamine to charges of sale and possession for sale of dangerous drugs. (Id. at 19.) Petitioner also argued that the trial court "conducted a trial on whether the defendant had knowingly sold a dangerous drug." (Id. at 20.) Petitioner further argued that the trial court "amended the indictment when it instructed the jury only as to dangerous drugs and mistake of fact." (Id. at 20.) Petitioner argued that the jury instructions permitted the jury to convict Petitioner for possessing or selling something other than methamphetamine. (Id. at 21.) In his petition for post-conviction relief, Petitioner argued that the trial court changed the definition of "knowingly" in the jury instructions. (Doc. 14, Ex. N at 9.)
These allegations in Petitioner's petition for review and in his petition for post-conviction relief are like his allegations in Grounds Two (a) through (c) of the petition. However, Petitioner did not present those claims to the state court based on federal law. (Doc. 14, Ex. E at 17-21; Doc. 14, Ex. N at 9.) Therefore, Petitioner did not fairly present to the Arizona Court of Appeals the federal claims that are included in Grounds Two (a) through (c) of the petition. See Baldwin, 541 U.S. at 33 (stating that a petitioner fairly presents a claim to the state court if petitioner has described both the operative facts and the federal legal theory on which the claim is based); see also Henry, 513 U.S. at 365-66 ("If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution."). Therefore, Petitioner did not fairly present Grounds Two (a) through (c) to the appellate court and, as discussed in Section III.E, it would be futile for Petitioner to return to the state courts to try to present the federal claims.
C. Ground Two (d)
In Ground Two (d) Petitioner argues that less than twenty-four hours after being assigned Petitioner's petition for post-conviction relief, the post-conviction court found "no colorable claims" of ineffective assistance of counsel, based on the arguments in the State's response, "without recognizing that the court had made the appointment, constituting denial of counsel." (Doc. 1 at 7.) The nature of this claim is unclear. However, Petitioner may be arguing that the trial court was responsible for appointing the attorney who served as Petitioner's trial counsel and, therefore, it is somehow responsible for that attorney's alleged ineffective assistance. Alternatively, he may be asserting a claim of ineffective assistance of counsel on post-conviction review, even though he was permitted to represent himself in that proceeding on his own request. (Doc. 14, Exs. L, M.) However the Court construes Petitioner claims, he did not present his ineffective assistance of counsel claim asserted in Ground Two (d) to the appellate court on review of his post-conviction proceeding. (Doc. 14, Ex. R.) Therefore, Petitioner did not fairly present to the Arizona Court of Appeals the federal claim that is included in Ground Two (d) of the petition. See Baldwin, 541 U.S. at 33. As discussed in Section III.E, it would be futile for Petitioner to return to the state courts to try to properly exhaust that claim.
D. Ground Three
In Ground Three, Petitioner asserts that trial counsel was ineffective for (a) failing to properly advise him regarding a five-year plea offer, (b) failing to aggressively represent him during jury selection, resulting in a jury "devoid of African-American members," (c) failing to prepare for trial, (d) failing to obtain an independent lab analysis to identify the alleged illegal substances at issues, and (e) failing to challenge the amendment of the indictment. (Doc. 1 at 8.)
1. Grounds Three (d) and (e)
Petitioner presented various factual allegations of ineffective assistance of trial counsel in his petition for post-conviction review. (Doc. 14, Ex. N at 3-8.) However, Petitioner did not present the claims that he asserts in Grounds Three (d) and (e) either to the trial or the appellate court. (Doc. 14, Ex. N at 3-8.) Therefore, he did not fairly present those claims of ineffective assistance of counsel to the state courts. See Gulbrandson v. Ryan, 738 F.3d 976, 992 (9th Cir. 2013) ("As a general matter, each 'unrelated alleged instance [] of counsel's ineffectiveness' is a separate claim for purposes of exhaustion.") (quoting Moormann v. Schriro, 426 F.3d 1044, 1056 (9th Cir. 2005)); Kelly v. Small, 315 F.3d 1063, 1068 n.2 (9th Cir. 2003) (requiring exhaustion in state court of the factual basis of each distinct ineffective-assistance claim), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007). As discussed in Section III.E, Grounds Three (d) and (e) are technically exhausted, but procedurally defaulted. See Coleman, 501 U.S. at 735 n.1.
2. Grounds Three (a), (b), and (c)
In his petition for post-conviction relief Petitioner raised the claims of ineffective assistance of trial counsel that he asserts in Grounds Three (a), (b), and (c). (Doc. 14, Ex. N at 3-8.) The trial court found that Petitioner's claims were not "colorable" under both prongs of the test in Strickland v. Washington, 466 U.S. 671, 687 (1984). (Doc. 14, Ex. Q.)
Petitioner appealed the denial of post-conviction relief to the Arizona Court of Appeals. (Doc. 14, Ex. R.) In his petition for review, Petitioner asserted that the dismissal of his petition for post-conviction relief was "incorrect and inapposite relative to the Strickland test." (Id. at 2-3.) However, the petition did not identify or discuss any claim of ineffective assistance of counsel or any other claim. (Id.) Rather, Petitioner "incorporated by reference" the petition for post-conviction relief that he had filed in the trial court. (Doc. 14, Ex. R.) Petitioner attached an appendix to his petition for review that included a copy of his petition for post-conviction review. (Id. at 2-3.)
Petitioner's presentation of his claims in an appendix was insufficient to fairly present those claims to the state court. See Insyxiengmay, 403 F.3d at 558-69 (analyzing whether including an issue in an appendix constituted fair presentment under Washington state law.) The Arizona Court of Appeals has held that including a copy of a petitioner's post-conviction petition in an appendix does not satisfy Arizona Rule of Criminal Procedure 32.9(C)(1)(iv), which provides that a petition for review shall contain "reasons why the petition should be granted." State v. Tollison, 2016 WL 3030142, at *2 (Ariz. Ct. App. May 26, 2016); see also Ramirez v. Ryan, 2017 WL 9288174, at *7 (D. Ariz. Nov. 30, 2017) ("By directing the Arizona Court of Appeals to his Amended PCR Petition instead of writing a substantive discussion on the issues and explaining why the trial court erred in dismissing the Amended PCR Petition, Petitioner failed to comply with Arizona Rule of Criminal Procedure 32.9(c)(1)(iv).") (adopted by 2018 WL 2102703 (D. Ariz. May 7, 2018)).
By referring the appellate court to his petition for post-conviction relief, which was included in an appendix, but failing to articulate any claims in his petition for review, Petitioner failed to satisfy Rule 32.9(c)(1)(iv). Petitioner's failure to "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 (1991); see also Baldwin, 541 U.S. at 32 ("[O]rdinarily a state prisoner does not 'fairly present' a claim to a state court if that court must read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so."). Therefore, Petitioner did not fairly present Grounds Three (a), (b), and (c) to the Arizona Court of Appeals.
The appellate court stated that it had reviewed the record including "the Superior Court's order denying post-conviction review, and the petition for review." (Doc. 14, Ex. U.) However, the court did not indicate whether it also reviewed the appendix that was attached to the petition for post-conviction review. (Id.) Additionally, the appellate court did not specifically discuss any of the claims asserted in the appendix. (Id.)
E. Procedural Default
As discussed above, Petitioner did not properly exhaust the claims asserted in Grounds One, Two (a)-(d), or Three. Petitioner cannot now return to state court to properly exhaust those claims. Petitioner is time-barred from a filing a second petition for post-conviction relief under Rule 32. See Ariz. R. Crim. P. 32.1 and 32.4 (a petition for post-conviction relief must be filed "within ninety days after the entry of judgment and sentence or within thirty days after the issuance of the order and mandate in the direct appeal, whichever is later"); see also State v. Rosario, 987 P.2d 226, 228 (Ariz. Ct. App. 1999) (stating than unexcused, untimely post-conviction petitions may be "summarily dismissed"). Additionally, Petitioner's claims would be barred as successive. See Ariz. R. Crim. P. 32.2(a) (providing that a defendant is precluded from relief on any ground "[t]hat has been waived at trial, on appeal, or in any previous collateral proceeding"); McKinney v. Ryan, 730 F.3d 903, 913 n.6 (9th Cir. 2013) (finding claims procedurally defaulted because petitioner was barred from exhausting his claims in the first instance by Rules 32.2(a)(3) and 32.4(a)).
Petitioner's claims do not implicate any exceptions referred to in Rule 32.4(a) and Rule 32.2(b) that permit the state court to consider untimely or successive claims. See Rule 32.1(d), (e), (f), (g) and (h). Accordingly, federal habeas corpus review of Petitioner's claims asserted in Grounds One, Two (a) - (d), and Three is procedurally barred. See Coleman, 501 U.S. at 735 n.1.
IV. Petitioner's Procedural Default is Unexcused
A federal court will not review the merits of a procedurally defaulted claim unless a petitioner demonstrates "cause" for failing to properly exhaust the claim in state court and "prejudice" from the alleged constitutional violation or shows that a "fundamental miscarriage of justice" would result if the claim were not heard on the merits. Coleman, 501 U.S. at 750. As discussed below, Petitioner has not made a showing sufficient to overcome the procedural bar.
A. Cause and Prejudice
A federal court may review the merits of a procedurally defaulted claim if a petitioner establishes "cause" and "prejudice." Coleman, 501 U.S. at 750. To establish "cause," a petitioner must establish that some objective factor external to the defense impeded his efforts to comply with the state's procedural rules. Teague, 489 U.S. at 298. "Prejudice" is actual harm resulting from the constitutional violation or error. Magby v. Wawrzaszek, 741 F.2d 240, 244 (9th Cir. 1984). To establish prejudice, a habeas petitioner bears the burden of demonstrating 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) (emphasis in original); see also Thomas v. Lewis, 945 F.2d 1119, 1123 (9th Cir. 1991).
Petitioner does not make any specific arguments to establish cause to excuse the procedural bar to review of his claims. (Doc. 15.) Instead, Petitioner argues that Respondents were required to respond to the merits of his claims. (Doc. 15 at 1.) Contrary to Petitioner's assertion, the Court's April 6, 2018 Order permitted Respondents to file an answer limited to affirmative defenses, including procedural bar. (Doc. 3 at 4.) Moreover, Respondents' assertion of an affirmative defense to several of Petitioner's claims, rather than a discussion of the merits of Petitioner's claims, does not establish cause to excuse the procedural default.
Petitioner also asserts that exhaustion was not required because "there is an absence of available state corrective process." (Doc. 15 at 2 (citing 28 U.S.C. § 2254(b)(1).) The record does not support his assertion. The applicable rules of Arizona criminal and appellate procedure permitted Petitioner to seek review of his claims on direct review and in post-conviction proceedings. The record reflects that Petitioner utilized those procedures. See Sections I.B and C. Petitioner does not explain how there was an absence of "available state corrective process" in this case.
The Court notes that Petitioner is proceeding pro se. Petitioner, however, does not argue that his lack of legal knowledge and assistance constitute cause to excuse the procedural default. Even if Petitioner specifically asserted that argument, it would fail because a petitioner's status as an inmate, lack of legal knowledge, and limited legal resources do not establish cause to excuse the procedural bar to review of his claims. See Hughes v. Idaho State Bd. of Corr., 800 F.2d 905, 909 (9th Cir. 1986) (an illiterate pro se petitioner's lack of legal assistance did not amount to cause to excuse a procedural default); Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988) (petitioner's reliance upon jailhouse lawyers did not constitute cause).
B. Fundamental Miscarriage of Justice
A federal court may review the merits of a procedurally defaulted claim if the petitioner demonstrates that failure to consider the merits of that claim will result in a "fundamental miscarriage of justice." Schlup v. Delo, 513 U.S. 298, 327 (1995). A "fundamental miscarriage of justice" occurs when "'a constitutional violation has probably resulted in the conviction of one who is actually innocent.'" Id. (citing Murray v. Carrier, 477 U.S. 478, 496 (1986)). To establish a fundamental miscarriage of justice, a petitioner must present "new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial." Schlup, 513 U.S. at 324. The petitioner has the burden of demonstrating that "it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Id. at 327.
Petitioner does not specifically assert that failure to consider his defaulted claims will result in a fundamental miscarriage of justice. (Doc. 15.) However, he generally asserts that he is "actually innocent of knowingly selling meth[amphetamine]." (Doc. 15 at 3, 4.) Petitioner, however, has not submitted any "new evidence" and has not shown that "it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." See Schulp, 513 U.S. at 327. Therefore, Petitioner has not shown that the miscarriage of justice exception applies to excuse his procedural defaults. /// ///
V. Ground Four
Petitioner identifies Ground Four as a claim of "improper sentencing." (Doc. 1 at 9.) Respondents characterize Ground Four as presenting a state-law sentencing claim that is not cognizable on federal habeas corpus review. (Doc. 14 at 25-26.)
In Ground Four, Petitioner asserts that his sentences were improper "in light of the failure of counsel to properly advise the Petitioner of the "relative value of accepting the offered plea of five years." (Id.) To the extent that Ground Four includes a claim of ineffective assistance of counsel based on advice during plea negotiations, that claim is duplicative of Ground Three (a) and is procedurally barred for the same reasons as Ground Three (a). See Section III.D.2.
In Ground Four Petitioner also argues that Ariz. Stat. § 13-3401(6)(d) is "poorly written" and asserts that the presence of methamphetamine was not "proven beyond a reasonable doubt." (Doc. 1 at 9.) Petitioner, however, does not clearly articulate his claim and does not cite any federal law to support his claim. (Id.) Thus, Respondents reasonably consider Ground Four as asserting a state-law challenge to Petitioner's sentence.
State law claims are not cognizable on federal habeas corpus review. Estelle v. McQuire, 502 U.S. 62, 67-68 (1991); see also Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) (finding a petitioner's claim that the state court erred in imposing consecutive sentences was not cognizable in federal habeas); Hendricks v. Zenon, 993 F.2d 664, 674 (9th Cir. 1993) (holding that a "claim regarding merger of convictions for sentencing is exclusively concerned with state law and therefore not cognizable in a federal habeas corpus proceeding."); Gerlaugh v. Lewis, 898 F. Supp. 1388, 1412-13, n.18 (D. Ariz. 1995) (declining to address a habeas petitioner's claim that his sentence violated an Arizona statute because it was a matter of state law).
Petitioner does not cite a federal basis for his challenge to his sentences in Ground Four. To the extent that he relies on state law, such a claim is not cognizable on federal habeas corpus review. See U.S.C. § 2254; Estelle, 502 U.S. at 6768. Accordingly, Ground Four should be dismissed.
VI. Ground Two (e)
In Ground Two (e), Petitioner asserts that the trial court violated the Fifth and Fourteenth Amendments by sentencing him under "the far more punitive meth statute" in the absence of a jury finding regarding methamphetamine. (Doc. 1 at 7.) Respondents assert that Petitioner is not entitled to relief on this claim because he has not satisfied the requirements for relief under the 28 U.S.C. § 2254(d). (Doc. 14 at 26-30.)
A. Federal Habeas Review of Claims Adjudicated on the Merits
Under § 2254(d), a federal court cannot grant habeas corpus relief unless the petitioner shows: (1) that the state court's decision "was contrary to" federal law as clearly established in the holdings of the Supreme Court at the time of the state court decision, or (2) that it "involved an unreasonable application of" such law, § 2254(d)(1); or (3) that it "was based on an unreasonable determination of the facts" based on the record before the state court. 28 U.S.C. § 2254(d)(2). This standard is "difficult to meet." Harrington v. Richter, 562 U.S. 86, 102 (2011). It is a "highly deferential standard for evaluating state court rulings, which demands that state court decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (citation and internal quotation marks omitted). When evaluating state court decisions on habeas review, federal courts look through summary or unexplained higher state court opinion to the last reasoned decision on the claim. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).
To determine whether a state court ruling was "contrary to" or involved an "unreasonable application" of federal law, courts look exclusively to the holdings of the Supreme Court that existed at the time of the state court's decision. Greene v. Fisher, 565 U.S. 34, 38 (2011). A state court's decision is "contrary to" federal law if it applies a rule of law "that contradicts the governing law set forth in [Supreme Court] cases or if it confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent." Mitchell v. Esparza, 540 U.S 12, 14 (2003) (citations omitted). A state court decision is an "unreasonable application of" federal law if the court identifies the correct legal rule, but unreasonably applies that rule to the facts of a particular case. Brown v. Payton, 544 U.S. 133, 141 (2005). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree on the correctness of the state court's decision.'" Richter, 562 U.S. at 101 (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
Federal courts may also grant habeas corpus relief when the state court decision "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)(2). "Or, to put it conversely, a federal court may not second-guess a state court's fact-finding process unless, after review of the state-court record, it determines that the state court was not merely wrong, but actually unreasonable." Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004), abrogated on other grounds, Murray v. Schriro, 745 F.3d 984, 1000 (9th Cir. 2014); see also Pollard v. Galaza, 290 F.3d 1030, 1033, 1035 (9th Cir. 2002) (the statutory presumption of correctness applies to findings by both trial courts and appellate courts). Additionally, state court findings of fact are presumed to be correct. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption with "clear and convincing evidence." Id.
"A state court's factual findings are unreasonable if 'reasonable minds reviewing the record' could not agree with them." Ayala v. Chappell, 829 F.3d 1081, 1094 (9th Cir. 2016) (quoting Brumfield v. Cain, ___ U.S. ___, 135 S. Ct. 2269, 2277 (2015)). If, considering only the record before the state court, the court determines that the state court's decision was based on an unreasonable determination of the facts, or resulted in a decision that was contrary to or involved an unreasonable application of clearly established federal law, the court next evaluates the petitioner's legal claim de novo, and may consider evidence presented for the first time in federal court. See Cullen v. Pinholster, 563 U.S. 170, 182-84 (2011); Crittenden v. Chappell, 804 F.3d 998, 1010-11 (9th Cir. 2015). Even in these circumstances, the state court's factual findings are entitled to a presumption of correctness that can be overcome only by clear and convincing evidence. See 28 U.S.C. §2254(e)(1); Crittenden, 804 F.3d at 1011.
Further, when a state court decision is deemed to be contrary to or an unreasonable application of clearly established federal law or based on an unreasonable determination of the facts, a petitioner is not entitled to habeas corpus relief unless the erroneous state court ruling also resulted in actual prejudice as defined in Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). See Benn v. Lambert, 283 F.3d 1040, 1052 n.6 (9th Cir. 2002). "Actual prejudice" means that the constitutional error at issue had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 631.
B. Petitioner is Not Entitled to Relief
In Ground Two (e), Petitioner argues that the trial court violated the Fifth and Fourteenth Amendments by enhancing his sentence under the "meth" statute in the absence of a jury finding that the offenses involved methamphetamine. (Doc. 1 at 7.) Petitioner raised this issue on direct appeal. (Doc. 14, Ex. E at 22-24.) Specifically, Petitioner argued that the trial court violated Alleyne v. United States, 570 U.S. 99 (2013), by sentencing Petitioner under Ariz. Rev. Stat. § 13-3407, the "meth" statute, because that statute increased the mandatory minimum sentence, but there was no jury finding that the subject offenses (Counts 1, 3, and 5) involved methamphetamine. (Id. at 25-28.)
ln Apprendi v. New Jersey, the Supreme Court held that a criminal defendant has a right to have the jury determine the existence of any fact, beyond a reasonable doubt, other than a prior conviction, "that increases the penalty for a crime beyond the prescribed statutory maximum . . . ." 530 U.S. 466, 490 (2009). This right is derived from the due process clause of the Fourteenth Amendment and the impartial jury clause of the Sixth Amendment. Id. at 476-77. Thus, under Apprendi, "any fact [other than a prior conviction] that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt." Id. at 490. In Alleyne, the Supreme Court held that Apprendi's jury determination requirement applies when the court uses a fact to increase the statutory mandatory minimum penalty. Alleyne, 577 U.S. at 116.
In this case, the Arizona Court of Appeals explained that Petitioner faced increased mandatory minimum sentences for committing crimes involving methamphetamine. (Doc. 14, Ex. H at 4.) The court noted that because the State had proved that Petitioner had one prior felony conviction, he could have been sentenced as a category two repetitive offender for Counts 1, 3, and 5, all class two felonies. (Id.) As a category two repetitive offender, Petitioner faced a mandatory minimum sentence of 4.5 years' imprisonment. (Id. at 5.) However, the trial court sentenced Petitioner under Ariz. Rev. Stat. § 13-3407(E), for an offense involving methamphetamine, which carried a minimum sentence of five years' imprisonment. (Id.)
The appellate court concluded that the trial court violated Alleyne by sentencing Petitioner on Counts 1, 3, and 5 under Ariz. Rev. Stat. § 13-3407(E) without a jury finding that those offenses involved methamphetamine. (Doc. 14, Ex. H at 5.) Because Petitioner had raised that issue on sentencing, the court reviewed for harmless error and considered whether the State could show "'beyond a reasonable doubt that the error did not contribute to or affect' Defendant's sentence." (Id. (quoting State v. Large, 234 Ariz. 274, 280 (Ariz. Ct. App. 2014).) The appellate court found the error harmless. (Doc. 14, Ex. H at 5.) The court found that "[t]he evidence show[ed] that no reasonable jury could conclude the subject offenses did not involve methamphetamine." (Id.) The court noted that the State had presented uncontested testimony that the substance Petitioner possessed and sold was tested and determined to contain methamphetamine. (Id.) During trial, Petitioner claimed that he thought the drugs were "MDMA" but he did not contest that drugs were actually methamphetamine. (Id.) Additionally, during closing argument, the defense stated that the only drug that had been presented to the jury was methamphetamine. (Id.)
In Ground Two (e), Petitioner alleges that the trial court violated the Due Process Clause by sentencing him under the "more punitive meth statute" when there was no jury finding that the offenses involved methamphetamine. (Doc. 1 at 7.) As discussed above, the appellate court agreed that the trial court had erred in this regard. (Doc. 14, Ex. H at 5.) However, the appellate court concluded that Petitioner was not entitled to relief because the error was harmless. (Id.) Petitioner does not argue that the appellate court's conclusion that the error was harmless is contrary to, or based on an unreasonable application of, clearly established Supreme Court precedent. See 28 U.S.C. § 2254(d)(1). (Doc. 1 at 7.) He also does not argue that the appellate court's decision is based on unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(2). Therefore, Petitioner has not shown that he is entitled to relief on the claim asserted in Ground Two (e).
Moreover, as Respondents note, under clearly established Supreme Court precedent, a sentencing error is harmless if the state shows beyond a reasonable doubt that the error did not contribute to or affect a defendant's sentence. See Weaver v. Massachusetts, ___U.S. ___, 137 S. Ct. 1899, 1907 (2017) ("If the government can show 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained,'" the "error is deemed harmless and the defendant is not entitled to reversal.") (quoting Chapman v. California, 386 U.S. 18, 24 (1967)). The appellate court applied this standard on direct review. (Doc. 14, Ex. H at 5.) Thus, its determination that the sentencing error was harmless was not contrary to clearly established Supreme Court precedent. See 28 U.S.C.§ 2254(d)(1). Petitioner does not argue, and has not shown, that the state court's application of this standard was unreasonable or based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(1) and (2). Therefore, Petitioner is not entitled to relief on Ground Two (e).
VII. Conclusion
For these reasons, the Court recommends that the petition be denied because Grounds One, Two (a) - (d), and Three are procedurally barred without an excuse, Ground Four is either procedurally barred without an excuse or presents a claim that is not cognizable on federal habeas corpus review, and Petitioner has not shown that he is entitled to relief on Ground Two (e).
Moreover, even if Petitioner's claims of ineffective assistance of counsel asserted in Ground Three, or his claim asserted in Ground One, were properly before this Court, he would not be entitled to relief because he has not alleged or established that the trial court's determination of those claims was contrary to, or based on an unreasonable application of, clearly established Supreme Court precedent. See 28 U.S.C. § 2254(d)(1). He also does not argue that the state court's decision is based on unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(2).
Accordingly,
IT IS RECOMMENDED that the Petition for Writ of Habeas Corpus (Doc. 1) be DENIED.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because the dismissal is either justified by a plain procedural bar and reasonable jurists would not find the procedural ruling debatable and or because Petitioner has not made a substantial showing of the denial of a constitutional right.
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) of the Federal Rules of Appellate Procedure 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 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. 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).
Dated this 4th day of January, 2019.
/s/_________
Bridget S. Bade
United States Magistrate Judge