Opinion
CV-23-00621-PHX-GMS (ESW)
05-22-2024
Adam Ramos, Petitioner, v. Ryan Thornell, et al., Respondents.
REPORT AND RECOMMENDATION
Honorable Eileen S. Willett United States Magistrate Judge
TO THE HONORABLE G. MURRAY SNOW, CHIEF UNITED STATES DISTRICT JUDGE:
Pending before the Court is Adam Ramos' (“Petitioner”) Amended “Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus” (the “Amended Petition”) (Doc. 5). After reviewing the parties' briefing (Docs. 5, 16, 19), the undersigned finds that Petitioner's habeas claims are procedurally defaulted without excuse. It is therefore recommended that the Court dismiss the Amended Petition with prejudice.
I. BACKGROUND
In October 2017, a jury sitting in the Superior Court of Arizona in and for Pinal County convicted Petitioner, in absentia, of aggravated driving with a blood alcohol concentration of .08 or more and aggravated driving under the influence, both while his license was suspended and revoked. (Doc. 16-1 at 5). A warrant was issued for Petitioner's arrest, and Petitioner was taken into custody nine months later. (Id. at 5 n.1). In 2019, the trial court sentenced Petitioner to enhanced, aggravated, and concurrent fourteen-year prison terms. (Id. at 5; Doc. 16-1 at 58).
On February 10, 2020, Petitioner's appellate counsel filed an opening brief in compliance with Anders v. California, 386 U.S. 738 (1967). (Id. at 8-18). Petitioner filed a pro se Supplemental Brief on April 20, 2020. (Id. at 20-41). On June 30, 2020, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. (Id. at 4-6). Petitioner did not file a petition for review in the Arizona Supreme Court. (Id. at 43).
On August 9, 2019, prior to resolution of Petitioner's direct appeal, Petitioner filed a Notice of Post-Conviction Relief (“PCR”). (Id. at 47). Represented by counsel, Petitioner filed a Supplemental PCR Petition on March 28, 2022, which alleged the ineffective assistance of trial counsel. (Id. at 61-71). On July 27, 2022, the trial court dismissed the petition, finding no colorable claim of prejudice. (Id. at 101). Petitioner's counsel filed a Petition for Review with the Arizona Court of Appeals on August 17, 2022. (Id. at 10619). The Arizona Court of Appeals granted review but denied relief on January 5, 2023. (Id. at 138-42). Petitioner did not seek review in the Arizona Supreme Court. (Id. at 144).
Petitioner timely initiated this federal habeas proceeding on April 13, 2023. (Doc. 1). As explained in the Court's July 13, 2023 Screening Order, “Petitioner raises two grounds for relief. In Ground One, Petitioner alleges he received ineffective assistance of trial and appellate counsel. In Ground Two, he claims he was denied due process when the trial court refused to consider his mental health as a mitigating factor.” (Doc. 7 at 2). Respondents filed a Limited Answer (Doc. 16) on November 6, 2023. Respondents have identified, labeled, and separately addressed four sub-claims contained in Ground One. This Report and Recommendation addresses all of those sub-claims, enumerated as Grounds 1(a)-(d). The undersigned finds that all of Petitioner's claims are procedurally defaulted without excuse.
II. LEGAL STANDARDS
A. Legal Standards Regarding Procedurally Defaulted Habeas Claims 1. Exhaustion-of-State-Remedies Doctrine
It is well-settled that a “state prisoner must normally exhaust available state remedies before a writ of habeas corpus can be granted by the federal courts.” Duckworth v. Serrano, 454 U.S. 1, 3 (1981); see also Picard v. Connor, 404 U.S. 270, 275 (1971) (“It has been settled since Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886), that a state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for habeas corpus. ”). The rationale for the doctrine relates to the policy of federal-state comity. Picard, 404 U.S. at 275 (1971). The comity policy is designed to give a state the initial opportunity to review and correct alleged federal rights violations of its state prisoners. Id. In the U.S. Supreme Court's words, “it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation.” Darr v. Burford, 339 U.S. 200, 204 (1950).
The exhaustion doctrine is codified at 28 U.S.C. § 2254. That statute provides that a habeas petition may not be granted unless the petitioner has (i) “exhausted” the available state court remedies; (ii) shown that there is an “absence of available State corrective process”; or (iii) shown that “circumstances exist that render such process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1).
Case law has clarified that in order to “exhaust” state court remedies, a petitioner's federal claims must have been “fully and fairly presented” in state court. Woods v. Sinclair, 764 F.3d 1109, 1129 (9th Cir. 2014). To “fully and fairly present” a federal claim, a petitioner must present both (i) the operative facts and (ii) the federal legal theory on which his or her claim is based. This test turns on whether a petitioner “explicitly alerted” a state court that he or she was making a federal constitutional claim. Galvan v. Alaska Department of Corrections, 397 F.3d 1198, 1204-05 (9th Cir. 2005).
“[T]o 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 pursuant to Rule 32.” Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). Claims that have been presented to the trial court, but not to the Arizona Court of Appeals are not exhausted. Castillo v. McFadden, 399 F.3d 993, 998 n.3 (9th Cir. 2005) (in noncapital cases, “claims of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them”) (quoting Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999)); Baldwin v. Reese, 541 U.S. 27, 29 (2004) (“To 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”).
2. Procedural Default Doctrine
If a claim was presented in state court, and the court expressly invoked a state procedural rule in denying relief, then the claim is procedurally defaulted in a federal habeas proceeding. See, e.g., Zichko v. Idaho, 247 F.3d 1015, 1021 (9th Cir. 2001). Even if a claim was not presented in state court, a claim may be procedurally defaulted in a federal habeas proceeding if the claim would now be barred in state court under the state's procedural rules. See, e.g., Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002).
Similar to the rationale of the exhaustion doctrine, the procedural default doctrine is rooted in the general principle that federal courts will not disturb state court judgments based on adequate and independent state grounds. Dretke v. Haley, 541 U.S. 386, 392 (2004). A habeas petitioner who has failed to meet the state's procedural requirements for presenting his or her federal claims has deprived the state courts of an opportunity to address those claims in the first instance. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991).
As alluded to above, a procedural default determination requires a finding that the relevant state procedural rule is an adequate and independent rule. See id. at 729-30. An adequate and independent state rule is clear, consistently applied, and well-established at the time of a petitioner's purported default. Greenway v. Schriro, 653 F.3d 790, 797-98 (9th Cir. 2011); see also Calderon v. U.S. Dist. Court (Hayes), 103 F.3d 72, 74-75 (9th Cir. 1996). An independent state rule cannot be interwoven with federal law. See Ake v. Oklahoma, 470 U.S. 68, 75 (1985). The ultimate burden of proving the adequacy of a state procedural bar is on the state. Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003). If the state meets its burden, a petitioner may overcome a procedural default by proving one of two exceptions.
In the first exception, the petitioner must show cause for the default and actual prejudice as a result of the alleged violation of federal law. Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014). To demonstrate “cause,” a petitioner must show that some objective factor external to the petitioner impeded his or her efforts to comply with the state's procedural rules. See Murray v. Carrier, 477 U.S. 478, 488 (1986); Robinson v. Ignacio, 360 F.3d 1044, 1052 (9th Cir. 2004). To demonstrate “prejudice,” the petitioner must show that the alleged constitutional violation “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982); see also Carrier, 477 U.S. at 494 (“Such a showing of pervasive actual prejudice can hardly be thought to constitute anything other than a showing that the prisoner was denied ‘fundamental fairness' at trial.”).
In the second exception, a petitioner must show that the failure to consider the federal claim will result in a fundamental miscarriage of justice. Hurles, 752 F.3d at 780. This exception is rare and only applied in extraordinary cases. Schlup v. Delo, 513 U.S. 298, 321 (1995). The exception occurs where a “constitutional violation has probably resulted in the conviction of one who is actually innocent of the offense that is the subject of the barred claim.” Id. at 327.
III. DISCUSSION
A. Ground One
Ground One of the Amended Petition presents four claims of ineffective assistance of counsel.
In Ground 1(a) of the Amended Petition, Petitioner alleges that his trial counsel was ineffective for “allow[ing] (without objection) [Petitioner's] trial to proceed, without informing [Petitioner], and in full knowledge of [Petitioner's] whereabouts and contact information,” and for failing to “file[] a motion for postponement so [Petitioner] could attend.” (Doc. 5 at 6).
In Ground 1 (b), Petitioner contends that his trial counsel was ineffective for “never object[ing] to a ‘peer review' which is a form of hearsay.” (Id.).
In Ground 1 (c), Petitioner alleges that his trial counsel was ineffective because she “never subpoenaed [his] medical records showing [his] mental health history for mitigation purposes.” (Id.).
In Ground 1(d), Petitioner asserts that his PCR counsel was ineffective “during post trial proceedings” because she “failed to notice due process violations by both [the] trial court and trial and appellate attorneys.” (Id.).
In his PCR Petition filed on March 28, 2022, Petitioner asserted a single ineffective assistance of counsel claim that alleged that trial counsel was ineffective for “stipulating] to Motor Vehicle Records which contained [Petitioner's] prior offense history,” which prejudiced him at sentencing. (Doc. 16-1 at 68). In his Petition for Review filed on August 17, 2022, Petitioner claimed trial counsel was ineffective for “stipulating to the inclusion of the offense information contained in the MVD packet without [his] consent, thereby exposing him to a significant increase of prison time as a repeat offender.” (Id. at 108). Although Petitioner's pro se Supplemental Brief on direct appeal alleged that his trial counsel committed fraud and “presented perjury” by telling the trial court that counsel had no contact with Petitioner despite knowing his whereabouts (Id. at 20-21, 23, 25), the Arizona Court of Appeals expressly declined to address any ineffective assistance claims, noting they must be raised in a PCR proceeding (Id. at 5 n.2). See Castille v. Peoples, 489 U.S. 346, 351 (1989) (presenting a claim “in a procedural context in which its merits will not be considered unless there are special and important reasons therefor . . . does not, for the relevant purpose, constitute fair presentation”) (internal quotation marks and citations omitted); Kellotat v. Cupp, 719 F.2d 1027, 1030-31 (9th Cir. 1983) (claim that petitioner was improperly denied appointed counsel was not properly exhausted because it was presented on direct appeal instead of in a petition for post-conviction review).
After reviewing the record, the undersigned finds that Respondents correctly argue that none of the ineffective assistance claims in Ground One were fairly presented in Petitioner's PCR proceeding. (Doc. 16 at 13-15). The record reflects that the only ineffective assistance claim that Petitioner properly exhausted in state court proceedings was the claim that his trial counsel was ineffective for stipulating to the admission of the Motor Vehicle Department records containing his prior offense history. (Doc. 16-1 at 68, 108). The undersigned finds that Grounds 1(a)-(d) of the Amended Petition are unexhausted. See Hemmerle v. Schriro, 495 F.3d 1069, 1075 (9th Cir. 2007) (“[ineffective assistance claims are not fungible, but are instead highly fact-dependent, [requiring] some baseline explication of the facts relating to it[.]”); 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.”).
Petitioner cannot return to state court to exhaust Grounds 1(a)-(d) as they would be found waived and untimely under Rules 32.2(a) and 32.4(b) of the Arizona Rules of Criminal Procedure. “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)); Ortiz v. Stewart, 149 F.3d 923, 931-32 (9th Cir. 1998) (Arizona's waiver rules are consistently and regularly applied). Because adequate and independent state rules would preclude Petitioner from returning to state court to exhaust Grounds 1(a)-(d), the undersigned finds that the claims are procedurally defaulted. See Beaty, 303 F.3d at 987 (a claim is procedurally defaulted “if the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the requirement would now find the claims procedurally barred”) (quoting Coleman, 501 U.S. at 735 n.1)).
This type of procedural default is often referred to as “technical” exhaustion because although the claim was not actually exhausted in state court, Petitioner no longer has an available state remedy. Coleman, 501 U.S. at 732 (“A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no remedies any longer ‘available' to him.”).
B. Ground Two
In Ground Two, Petitioner contends that the trial court denied him due process because it “proceeded through trial without [Petitioner] in attendance” and “refused to acknowledge [his] mental health as [a] factor in mitigation.” (Doc. 5 at 7).
Respondents accurately observe that Ground Two does not allege a violation of the United States Constitution or federal laws. (Doc. 16 at 15 n.10). See Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (per curiam) (federal law “unambiguously provides that a federal court may issue a writ of habeas corpus to a state prisoner ‘only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.'”) (quoting 28 U.S.C. § 2254(a)).
The record shows that Petitioner did not fairly present Ground Two to the state courts. On direct appeal, Petitioner argued that the trial court wrongfully “discounted” mental health evidence presented in mitigation at sentencing. (Doc. 16-1 at 24). However, Petitioner did not argue that the trial court's actions violated his federal due process rights under the United States Constitution. Moreover, Petitioner did not argue that proceeding with the trial in his absence violated his federal due process rights.
A claim is only “fairly presented” to the state courts when a petitioner has “alert[ed] the state courts to the fact that [he] was asserting a claim under the United States Constitution.” Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000) (quotations omitted); see Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996) (“If a petitioner fails to alert the state court to the fact that he is raising a federal constitutional claim, his federal claim is unexhausted regardless of its similarity to the issues raised in state court.”). A “general appeal to a constitutional guarantee,” such as due process, is insufficient to achieve fair presentation. Shumway, 223 F.3d at 987 (quoting Gray v. Netherland, 518 U.S. 152, 163 (1996)); see Castillo v. McFadden, 399 F.3d 993, 1003 (9th Cir. 2005) (“Exhaustion demands more than drive-by citation, detached from any articulation of an underlying federal legal theory.”). Similarly, a federal claim is not exhausted merely because its factual basis was presented to the state courts on state law grounds-a “mere similarity between a claim of state and federal error is insufficient to establish exhaustion.” Shumway, 223 F.3d at 988. Even when a claim's federal basis is “self-evident,” or the claim would have been decided on the same considerations under state or federal law, a petitioner must still present the federal claim to the state courts explicitly, “either by citing federal law or the decisions of federal courts.” Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000) (quotations omitted), amended by 247 F.3d 904 (9th Cir. 2001); see Baldwin v. Reese, 541 U.S. 27, 32 (2004) (claim not fairly presented when state court “must read beyond a petition or a brief . . . that does not alert it to the presence of a federal claim” to discover implicit federal claim).
The undersigned finds that Petitioner failed to fairly present Ground Two to the state courts. See Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (“general appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair trial, are insufficient to establish exhaustion”). Petitioner cannot return to state court to exhaust Ground Two as it would be found waived and untimely under Rules 32.2(a) and 32.4(b) of the Arizona Rules of Criminal Procedure. Consequently, Ground Two is procedurally defaulted. See Coleman, 501 U.S. at 735 n.1.
C. Petitioner's Procedural Defaults are Not Excused
The merits of a habeas petitioner's procedurally defaulted claims are to be reviewed if the petitioner (i) shows cause for the default and actual prejudice as a result of the alleged violation of federal law or (ii) shows that the failure to consider the federal claim will result in a fundamental miscarriage of justice. McKinney v. Ryan, 730 F.3d 903, 913 (9th Cir. 2013).
In order to establish cause for a procedurally defaulted claim, “a petitioner must demonstrate that the default is due to an external objective factor that cannot fairly be attributed to him.” Smith v. Baldwin, 510 F.3d 1127, 1146 (9th Cir. 2007) (internal quotation marks and citation omitted). Under Ninth Circuit precedent, Petitioner's status as an inmate with limited legal resources does not constitute cause. 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 arguments concerning his mental health and reliance upon jailhouse lawyers did not constitute cause).
The undersigned finds that Petitioner has failed to establish that his procedural defaults are “due to an external objective factor that cannot fairly be attributed to him.” Smith, 510 F.3d at 1146 (internal quotation marks and citation omitted). Petitioner has therefore failed to show cause for his procedural defaults. Where a petitioner fails to establish cause, the Court need not consider whether the petitioner has shown actual prejudice resulting from the alleged constitutional violations. Smith v. Murray, 477 U.S. 527, 533 (1986). Accordingly, the undersigned finds that Petitioner has not satisfied the “cause and prejudice” exception to excuse his procedural defaults.
To satisfy the fundamental miscarriage of justice exception, Petitioner must show that “a constitutional violation has resulted in the conviction of one who is actually innocent.” Schlup v. Delo, 513 U.S. 298, 327 (1995). Petitioner does not expressly argue actual innocence. To the extent Petitioner may assert that he is innocent, Petitioner has failed to satisfy his burden of producing “new reliable evidence” of actual innocence. See id. at 324 (“To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence.”). The undersigned recommends that the Court find that Petitioner cannot pass through the actual innocence/Schlup gateway to excuse his procedural defaults. See Smith v. Hall, 466 Fed.Appx. 608, 609 (9th Cir. 2012) (explaining that to pass through the Schlup gateway, a petitioner must first satisfy the “threshold requirement of coming forward with ‘new reliable evidence'”); Griffin v. Johnson, 350 F.3d 956, 961 (9th Cir. 2003) (“To meet [the Schlup gateway standard], [petitioner] must first furnish ‘new reliable evidence . . . that was not presented at trial.'”) (quoting Schlup, 513 U.S. at 324). Consequently, the undersigned recommends that the Court dismiss the Amended Petition with prejudice.
IV. CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that the Amended Petition (Doc. 5) be DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that a certificate of appealability and leave to proceed in forma pauperis on appeal be denied because dismissal of the Amended Petition is justified by a plain procedural bar.
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 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. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. 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 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).