Opinion
CV-19-00520-TUC-RM (EJM)
08-04-2021
Claude Ranger, III, Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
Eric J. Markovich United States Magistrate Judge
Petitioner Claude Ranger filed a pro se Petition for a Writ of Habeas Corpus (“PWHC”) pursuant to 28 U.S.C. § 2254 on October 16, 2019. (Doc. 1). Petitioner raises four grounds for relief in relation to his aggravated assault conviction: (1) Petitioner's Fourteenth Amendment due process rights were violated because he was arrested 18 years after the aggravated assault but the statute of limitations provided by A.R.S. § 13-107(B) is 7 years; (2) prosecutorial misconduct where the prosecutor persuaded trial counsel to agree to an illegal sentence and persuaded the judge to sentence Petitioner to 25 years for aggravated assault, violating due process under the Fourteenth Amendment; (3) ineffective assistance of trial counsel where counsel allowed the judge to sentence Petitioner to 25 years and let the judge violate the Fourteenth Amendment, due process, and the Eighth Amendment; and (4) the jury was comprised of mostly white and older jurors and only one black juror, denying Petitioner a fair trial in violation of the Fourteenth Amendment and equal protection.
Although Petitioner wrote “first amended petition” on the caption of his PWHC, Document 1 is the original, and not an amended, petition.
Petitioner later filed a supplement to his PWHC asserting four additional grounds for relief relating to his sexual assault conviction: (5) the trial judge violated the Eighth Amendment by sentencing Petitioner to life when Petitioner was arrested 18 years after the crime and there was no proof of penetration; (6) fundamental prejudicial error because Petitioner was sentenced to life and there was no proof of penetration; (7) the Fourteenth Amendment was violated when Petitioner was sentenced to life where there was no proof of penetration, denying Petitioner freedom of liberty and constituting cruel punishment; and (8) judicial bias because the trial court should have dismissed the sexual assault charge with a directed verdict of not guilty because there was no proof of penetration and should have found Petitioner guilty of a lesser offense; the trial judge violated due process and denied Petitioner a fair trial. (Doc. 28).
The Court has re-numbered these claims as 5-8, as Petitioner presents a total of eight grounds for relief.
Respondents filed an Answer and an Amended Answer contending that Petitioner's claims are procedurally defaulted, and that Petitioner has failed to allege cause and prejudice or a fundamental miscarriage of justice to excuse the default of his claims. (Docs. 17 & 28). Respondents further allege that Petitioner's supplemental claims do not relate back to the claims in the original petition and should be dismissed as untimely. (Doc. 28). Respondents also allege that Petitioner's ground six claim asserting fundamental prejudicial error is not cognizable on habeas review.
Petitioner filed a Reply indicating that he was confused about when his PWHC was due and whether he had to appeal to the Supreme Court of the United States. (Doc. 24). Petitioner later filed two additional replies to the Amended Answer alleging that he should not have been convicted of sexual assault when there was no proof of penetration. (Docs. 33 & 35). Petitioner further alleges that trial counsel failed to challenge the sufficiency of the State's evidence on sexual assault and that had counsel done so in a Rule 20 motion, the court would have found a lack of evidence of penetration and dismissed the sexual assault charge. Petitioner contends that he has stated a colorable claim of ineffective assistance of counsel entitling him to an evidentiary hearing.
Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter was referred to Magistrate Judge Markovich for a Report and Recommendation. The undersigned finds that Petitioner's claims are procedurally defaulted and barred from this Court's review, and that Petitioner does not demonstrate cause and prejudice or a fundamental miscarriage of justice to excuse the procedural default of his claims. Accordingly, the Magistrate Judge recommends that the District Court deny the Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus.
I.FACTUAL AND PROCEDURAL BACKGROUND
A. Trial, Sentencing, and Appeal
On November 4, 2015 a Pima County jury found Petitioner guilty of aggravated assault-serious physical injury and sexual assault. (Ex. B). On December 14, 2015 Petitioner was sentenced to 25 years imprisonment for aggravated assault, and life with the possibility of parole after 25 years for the sexual assault. (Ex. C).
All exhibit numbers refer to Respondent's Answer, Doc. 17.
The PCR court summarized the factual and procedural background of Petitioner's case at length:
On November 4, 2015, Petitioner was convicted by jury of Aggravated Assault, Serious Physical Injury, a dangerous nature, class 3 felony, and Sexual Assault, a class 2 felony involving the intentional or knowing infliction of serious physical injury. The convictions stem from the brazen and brutal aggravated beating and rape of Mary Ellen Scott, a 93-year-old resident of the Villa Maria nursing home near Grant Road and Columbus Blvd. in Tucson during the early morning hours of April 28, 1993.
. . .
At trial, the State's evidence demonstrated that the perpetrator broke into the victim's efficiency unit through a slightly open window, protected by a screen. The window faced northward and was accessible through a parking lot off Grant Road. Despite the break in, staff noted that nothing of value was taken.
The crime scene was awash in blood, including the couch where the elderly woman slept, the walker she used regularly, and her nightgown and robe. Investigators believed the blood came primarily from her. Perhaps not surprisingly, her injuries from the attack were severe, including bruising on her mouth,
nose, around the eyes, ears and head. There also was bruising in her tongue and around her neck and shoulders, such visibly demonstrating obvious signs of trauma. Blood was also encrusted in her nose. An emergency room exam determined there also was blood in the right eye, the pupil of which was unresponsive to light. When surgeons were unable to repair the eye, it was removed. Significantly, the victim sustained a 2- to 3-centimeter laceration in the vaginal area as well. This vaginal tear was about an inch in length.
The victim was so traumatized by the attack and her resulting injuries that she was unable to describe to the ER doctor what happened, including whether she had even been raped. Miraculously, she recovered and returned to Villa Maria, though this time, in an assisted living placement, which contrasted from the independent living unit she resided in previously. She was never able to disclose details of the rape, but according to staff, she lived quietly about six more months before passing from causes unrelated to the assault, though following the rape, she appeared markedly fearful of males.
Although police collected evidence from the scene, including the woman's garments, blood smears, finger prints and other items associated with a rape investigation, law enforcement were unable to come up with a suspect. The case went cold. Then in the late ‘80s, with advancements in DNA technology and science, police got a match on the Combined DNA Index System or CODJS, the generic term used to describe the FBI's program of support for criminal justice DNA databases plus software. That male profile match or ‘hit' linked the 1993 assault to Defendant. About the same time, Phoenix law enforcement also got a hit connecting Defendant to a separate Glendale area sexual assault that had gone cold as well. Local crime lab personnel obtained a DNA sample from Defendant. According to the evidence, lab personnel found a match in the male profile associated with his DNA to evidence collected in the Villa Maria assault, including semen smears gathered from samples taken from the victim's nightgown, underwear and a used tissue found in her hand.(Ex. CC at 185-86).
Following his conviction, Petitioner sought review in the Arizona COA. (Ex. E). Appointed counsel filed a brief arguing that the trial court committed fundamental, prejudicial error by sentencing Petitioner pursuant to aggravated assault statutes that did not become effective until after the date of his offense. (Ex. F).
On December 27, 2016 the COA issued its decision vacating Petitioner's aggravated assault sentence and remanding to the trial court for resentencing, and otherwise affirming Petitioner's convictions and sentences. (Ex. A). The trial court subsequently resentenced Petitioner to 20 years imprisonment on the aggravated assault charge. (Ex. J).
Prior to resentencing, Petitioner filed a petition for review to the Arizona Supreme Court (Ex. H), which the court denied (Ex. I).
Following resentencing, Petitioner again sought review in the Arizona COA. (Ex. K). Appointed counsel filed an Anders brief avowing that she had reviewed the entire record and could not find any arguably meritorious issues to raise on appeal. (Ex. L). The court granted Petitioner leave to file a pro se supplemental brief, (Ex. M), and he timely did so (Ex. N). Petitioner alleged that A.R.S. § 13-107(B) provides a 7-year statute of limitations and that the prosecution for his offenses must have commenced within 7 years of the date of the offense. (Ex. N at 88). Petitioner further stated that with respect to post-indictment delay, the court should consider four factors to determine whether an indictment should be dismissed. Id. at 89.
On June 27, 2018 the COA issued its decision affirming Petitioner's convictions and sentences. (Ex. O). The court found that Petitioner's 20-year sentence for aggravated assault was within the statutory range and was lawfully imposed, and that the historical prior felony convictions and aggravating factors the trial court relied on were supported by the record. The court further noted that Petitioner did not challenge the new sentence in his supplemental brief but instead raised several claims relating to his underlying convictions. The court concluded that because Petitioner's “convictions are affirmed and are not before us . . . we do not address his arguments.” The court stated that it had searched the record for reversible error and found none, and affirmed the sentence imposed.
Petitioner filed a petition for review in the Arizona Supreme Court listing the following issues as not decided by the COA: jury misconduct, prosecutor misconduct, statute of limitations, jury selection, prejudice, innocent, ineffective assistance of counsel, post-conviction delay, Brady claim, post-indictment delay, and discovery and disclosure. (Ex. P). On December 3, 2018 the Supreme Court denied review. (Ex. Q).
B. First Petition for Post-Conviction Relief
On December 22, 2015 Petitioner initiated proceedings in Pima County Superior Court for Rule 32 post-conviction relief (“PCR”). (Ex. R). Rule 32 proceedings were stayed until the mandate issued on Petitioner's direct appeal. (Ex. S). Petitioner filed another notice of PCR on January 25, 2016 (Ex. T) and a pro se petition for PCR (Ex. U). The trial court appointed counsel (Ex. V) and again stayed the proceedings pending issuance of the mandate in Petitioner's direct appeal (Ex. W). Appointed counsel subsequently filed a petition alleging that trial counsel was ineffective for failing to challenge the sufficiency of the evidence to prove sexual assault and failing to object to the jury instructions regarding the definition of sexual assault. (Ex. Y). Counsel also alleged cumulative error demonstrating prejudice.
The Arizona Rules of Criminal Procedure were amended effective January 20, 2020. New Rule 32 applies to defendants convicted after a trial or a contested probation violation hearing, and new Rule 33 applies to pleading defendants and defendants who admitted a probation violation or had an automatic probation violation. Because Petitioner's state court actions were filed prior to January 20, 2020 and he had no state court action pending at the time the new rules went into effect, former Rule 32 applies to Petitioner's case and the Court will cite to former Rule 32 throughout this opinion. See Arizona Supreme Court Order R-19-0012, available at: https://www.azcourts.gov/rules/Recent-Amendments/Rules-of-Criminal-Procedure
On August 20, 2018 the court issued its finding that Petitioner failed to make a colorable claim of ineffective assistance of counsel and denying Rule 32 relief. (Ex. BB). In a detailed opinion, the court first set forth the factual and procedural history of Petitioner's case, then turned to Petitioner's claims for relief. The court first rejected Petitioner's claim that counsel was ineffective for failing to seek a Rule 20 motion on the issue of penetration on the sexual assault charge. The court noted that this appeared to be a matter of trial strategy, as counsel did seek Rule 20 on the issue of identification, and that Petitioner's challenge attacked the sufficiency of the evidence. Id. at 188. The court found that “the evidence was not only substantial but overwhelming on the elements of sexual assault, including penetration.” Id. at 189. The court further found that:
[T]here was more than sufficient evidence for the jury to deliberate on the sexual assault count as it could infer the existence of penetration from evidence showing that the laceration was in the outer lips of the vulva, running an inch downwards towards the anus. Thus, penetration “no matter how slight” was proven by the State. In addition, the jury could consider semen found at the scene, like that collected from the victim's nightgown, inside her panties, and on a soiled tissue
she held in her hand. As the State asserted in its closing, “Clearly there would not be semen at the scene in those areas without sexual assault.” Beyond these things, the jury also could consider the extensive bruising on the elderly woman's arms, neck, behind her ears and face, in addition to her wrists up to her elbow, all which arguably demonstrated that she had been held down by the neck while being physically and sexually assaulted. Moreover, nothing of value was taken, and there was no evidence that anyone had a motive to harm the woman. Given counsel's focus on challenging the forensic evidence in an attempt to plant reasonable doubt on identification of the assailant, there can be little question that defense counsel's decision not to urge as a ground for Rule 20 insufficiency the element of penetration amounts to a tactical decision.Id. at 190 (internal citations omitted). The court further rejected Petitioner's claim that counsel was ineffective for failing to challenge the definition of oral sexual conduct in the jury instructions. The court found that the instruction was a valid statement of the law and Petitioner did not argue its incorrectness or cite any authority showing that it was IAC for failing to exclude a superfluous but correct definition of law. Id.
The court further found that, even assuming Petitioner had shown counsel was ineffective, Petitioner failed to show prejudice. The court stated that “the quantity of evidence presented in support of guilt as to both counts was, frankly, overwhelming, supporting the jury's conclusion that the State had met its burden of proof beyond a reasonable doubt on both counts.” Id. The court further reasoned that:
Beyond this, however, the Court notes that trial counsel did seek a Rule 20 on the sexual assault count, and though it was based on insufficient identification, the Court nonetheless made a record that there was sufficient evidence on the element of penetration for the jury to consider the count in deliberations. Accordingly, the Court in fact made a finding on the very issue that Defendant asserts was not considered during trial on the Rule 20 request made by [trial counsel].
Finally, Defendant complains as noted already about surplusage language, but it is axiomatic that jurors are presumed to follow the court's instructions. Furthermore, the jury's conviction on sexual assault and aggravated assault are each clearly supported by the evidence. Removal of the surplusage language complained of by Defendant would not have altered the jury's reasonable finding of guilt on either count of sexual assault or aggravated assault.Id. (internal citations omitted). The court thus concluded that Petitioner failed to make a colorable claim of ineffective assistance of counsel.
On September 21, 2018 Petitioner filed a petition for review in the Arizona COA presenting three issues for review: (1) trial counsel failed to seek dismissal of the sexual assault charge based on a lack of sufficient evidence of penetration; (2) trial counsel did not object to jury instructions defining sexual assault, sexual intercourse, and sexual contact that did not apply to the offenses as charged in the indictment; and (3) Petitioner was prejudiced by trial counsel's deficient performance and cumulative error of counsel's deficient performance further establishes prejudice to Petitioner. (Ex. CC).
On December 13, 2018 the COA issued its decision granting review and denying relief. (Ex. DD). As to Petitioner's sufficiency of the evidence claim, the court noted that it had reviewed the testimony and cross-examination of Dr. Kaback (the emergency room physician who examined the victim) and concluded that “the trial court correctly determined that ‘penetration “no matter how slight” was proven by the State,' at the very least, penetration of the vulva.” Id. at 7. The court further found that Petitioner failed to offer any evidence that the trial court abused its discretion when it determined that counsel made a reasonable, tactical decision to not challenge the sufficiency of the evidence of penetration in the Rule 20 motion. Further, “even assuming without finding that counsel's conduct was deficient, in light of the evidence presented at trial, [Petitioner] has not established how he was prejudiced.” Id. at 7-8. As to the jury instruction claim, the court found that:
Because the evidence at trial established that the victim's vulva was lacerated and that [Petitioner's] semen was found on her clothing and the tissue in her pocket, the trial court did not abuse its discretion by concluding his conviction for sexual assault was “clearly supported by the evidence” and that removal of the surplus language from the jury instruction would not have changed the outcome at trial. And, as the court correctly noted, [Petitioner] has not cited any authority suggesting that counsel fell below prevailing professional norms by failing to object to a legally correct instruction containing irrelevant additional language.Id. at 9 (citation omitted). The court thus concluded that the trial court did not abuse its discretion in denying Petitioner's IAC claims.
Petitioner filed a petition for review to the Arizona Supreme Court (Ex. EE), which the court denied (Ex. FF).
C. Second Petition for Post-Conviction Relief
On March 20, 2019 Petitioner filed a second notice of PCR in Pima County Superior Court. (Ex. GG). Petitioner listed the following as the facts supporting his claims and the reason for not raising the claims earlier: innocent, post-indictment delay, Brady claim, illegal sentence, jury misconduct, prosecutorial misconduct, disclosure, discovery, statute of limitations, jury selection, judicial bias, plain error, due process, ineffective assistance of counsel, prejudicial fundamental error, and Fourteenth Amendment violations. Id. at 35.
On May 14, 2019 the court issued its order summarily dismissing Petitioner's second notice of PCR pursuant to Ariz. R. Crim. P. 32.2(b). (Ex. HH). The court noted that a claim under Rule 32.1 (d) through (h) raised in an untimely or successive post-conviction notice must include the specific exception to preclusion and must explain why the claim was not raised in a previous notice or petition. Because Petitioner failed to explain why he did not raise the claims in his previous notice or petition, the notice was summarily dismissed.
On June 14, 2019 Petitioner filed a pro se petition for PCR. (Ex. II). Petitioner again listed statute of limitations, ineffective assistance of counsel, jury misconduct, prosecutorial misconduct, innocence, illegal sentence, and jury selection.
On August 7, 2019 the court issued its order noting that despite its prior order summarily dismissing the second notice of PCR, Petitioner proceeded to file a pro se petition. (Ex. JJ). Because the court summarily dismissed the notice, it would not consider the merits of the petition. The court therefore denied relief and dismissed the petition.
On September 26, 2019 Petitioner filed a petition for review in the Arizona COA presenting the following issues for review: ineffective assistance of counsel, prosecutorial misconduct, judicial bias, fundamental prejudicial error, illegal sentence, innocence, Eighth Amendment violated, due process clause violated, Fourteenth Amendment violated, modification of sentence, re-trial, and statute of limitations A.R.S. § 13-107(B). (Ex. KK at 49). Petitioner alleged that he was innocent of the sexual assault charge because there was no evidence of penetration, and that he was sentenced to life with lack of evidence. Id. at 50.
The COA issued an order directing Petitioner to file a copy of the ruling on the PCR petition that Petitioner was challenging. (Ex. LL). When Petitioner failed to do so, the COA dismissed the petition for review. (Ex. MM). Petitioner then filed a “Motion Notice of Appeal” (Ex. NN), which the COA construed as a motion for reconsideration and denied (Ex. OO).
On October 31, 2019 Petitioner filed a petition for review in the Arizona Supreme Court alleging that he was innocent of the sexual assault because there was no evidence of penetration and that he should have been found not guilty. (Ex. PP). Petitioner also alleged that trial counsel was ineffective for failing to challenge the sufficiency of the evidence of penetration and failing to challenge the jury instructions, and that the trial judge and prosecutor were biased.
On February 24, 2020 the Arizona Supreme Court denied the petition for review. (Ex. QQ).
D. Third Petition for Post-Conviction Relief
On October 10, 2019 Petitioner filed a third notice of PCR in Pima County Superior Court. (Ex. RR). Petitioner listed the following as the facts supporting his claims and the reason for not raising the claims earlier: ineffective assistance of counsel, prosecutorial misconduct, judicial bias, fundamental prejudicial error, illegal sentence, innocence, Eighth Amendment violation, due process clause violated, Fourteenth Amendment violated, modification of sentence, re-trial, and statute of limitations A.R.S. § 13-107(B). Id. at 76. Petitioner filed a pro se petition that same date listing the same grounds. (Ex. SS).
On November 20, 2019 the court issued its order dismissing the PCR notice and petition. (Ex. TT). The court noted that Petitioner had failed to provide the required ruling to the COA in accordance with Rule 32.9(c)(4)(B)(i) in his second PCR proceedings, and failed to file the required notice with the trial court in accordance with Rule 32.9(c)(2). Id. at 87. The court further stated that even if it were to consider the third PCR petition on the merits,
[P]ursuant to Rule 32.2(b), “A claim under Rule 32.l(d) through (h) that defendant raises in a successive or untimely post-conviction notice must include the specific exception to preclusion and explain the reasons for not raising the claim in a previous notice or petition, or for not raising the claim in a timely manner.” Ariz. R. Crim. P., Rule 32.2. Here, Petitioner raises as grounds for his Petition, Rule 32.1(e) and (h), which Petitioner previously raised in a prior notice of post-conviction relief which was dismissed. Thus, the claims are precluded.Id. The court therefore concluded that the notice and petition must be dismissed procedurally because Petitioner failed to comply with the notice provision to the trial court, and because Petitioner's grounds for relief pursuant to Rule 32.1(e) and (h) were not explained in the notice, not raised in a timely manner, and were raised in a previous notice, previously dismissed, and thus precluded. Id. at 87-88.
E. Habeas Petition
On October 16, 2019 Petitioner filed his PWHC in this Court stating four grounds for relief. (Doc. 1). Petitioner subsequently filed a supplement to his PWHC alleging four additional grounds for relief. (Doc. 28). For the reasons that follow, the undersigned finds that Petitioner's claims are unexhausted and procedurally defaulted, and that Petitioner has failed to show cause and prejudice or a fundamental miscarriage of justice to excuse the default of his claims. Accordingly, the undersigned recommends that the District Court enter an Order denying the PWHC.
II.STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) limits the federal court's power to grant a petition for a writ of habeas corpus on behalf of a state prisoner. First, the federal court may only consider petitions alleging that a person is in state custody “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Sections 2254(b) and (c) provide that the federal courts may not grant habeas corpus relief, with some exceptions, unless the petitioner exhausted state remedies. Additionally, if the petition includes a claim that was adjudicated on the merits in state court proceedings, federal court review is limited by § 2254(d).
A. Exhaustion
A state prisoner must exhaust his state remedies before petitioning for a writ of habeas corpus in federal court. 28 U.S.C. § 2254(b)(1) & (c); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). 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) (“To provide the State with the necessary opportunity, the prisoner must fairly present her claim in each appropriate state court . . . thereby alerting the court to the federal nature of the claim.”). 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 COA, either through the direct appeal process or post-conviction proceedings. Crowell v. Knowles, 483 F.Supp.2d 925, 931-33 (D. Ariz. 2007).
A claim is fairly presented if the petitioner describes both the operative facts and the federal legal theory upon which the claim is based. Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007). The petitioner must have “characterized the claims he raised in state proceedings specifically as federal claims.” Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir. 2000), opinion amended and superseded, 247 F.3d 904 (9th Cir. 2001). “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.” Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996). “Moreover, general appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair trial, are insufficient to establish exhaustion.” Hivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999).
However, “[a] habeas petitioner who [fails to properly exhaust] his federal claims in state court meets the technical requirements for exhaustion” if there are no state remedies still available to the petitioner. Coleman v. Thompson, 501 U.S. 722, 732 (1991). “This is often referred to as ‘technical' exhaustion because although the claim was not actually exhausted in state court, the petitioner no longer has an available state remedy.” Thomas v. Schriro, 2009 WL 775417, at *4 (D. Ariz. March 23, 2009). “If no state remedies are currently available, a claim is technically exhausted, ” but, as discussed below, the claim is procedurally defaulted and is only subject to federal habeas review in a narrow set of circumstances. Garcia v. Ryan, 2013 WL 4714370, at *8 (D. Ariz. Aug. 29, 2013).
B. Procedural Default
If a petitioner fails to fairly present his claim to the state courts in a procedurally appropriate manner, the claim is procedurally defaulted and generally barred from federal habeas review. Ylst v. Nunnemaker, 501 U.S. 797, 802-05 (1991). There are two categories of procedural default. First, a claim may be procedurally defaulted in federal court if it was actually raised in state court but found by that court to be defaulted on state procedural grounds. Coleman, 501 U.S. at 729-30. Second, the claim may be procedurally defaulted if the petitioner failed to present the claim in a necessary state court and “the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.” Id. at 735 n.1; O'Sullivan, 526 U.S. at 848 (when time for filing state court petition has expired, petitioner's failure to timely present claims to state court results in a procedural default of those claims); Smith v. Baldwin, 510 F.3d 1127, 1138 (9th Cir. 2007) (failure to exhaust claims in state court resulted in procedural default of claims for federal habeas purposes when state's rules for filing petition for post-conviction relief barred petitioner from returning to state court to exhaust his claims).
When a petitioner has procedurally defaulted his claims, federal habeas review occurs only in limited circumstances. “A state prisoner may overcome the prohibition on reviewing procedurally defaulted claims if he can show cause to excuse his failure to comply with the state procedural rule and actual prejudice resulting from the alleged constitutional violation.” Davila v. Davis, 137 S.Ct. 2058, 2064 (2017) (internal quotations and citation omitted); Martinez v. Ryan, 566 U.S. 1, 10 (2012) (“A prisoner may obtain federal review of a defaulted claim by showing cause for the default and prejudice from a violation of federal law.”). Cause requires a showing “that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). Impediments to compliance may include interference by officials that makes compliance with the state's procedural rule impracticable, a showing that the factual or legal basis for the claim was not reasonably available, or the procedural default was the result of ineffective assistance of counsel. Id. at 488-89. Prejudice requires “showing, not merely that the errors at his trial created a possibility of prejudice, but that they 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). The Court need not examine the existence of prejudice if the petitioner fails to establish cause. Engle v. Isaac, 456 U.S. 107, 134 n.43 (1982); Thomas v. Lewis, 945 F.2d 1119, 1123 n.10 (9th Cir. 1991).
Additionally, a habeas petitioner “may also qualify for relief from his procedural default if he can show that the procedural default would result in a ‘fundamental miscarriage of justice.'” Cook v. Schriro, 538 F.3d 1000, 1028 (9th Cir. 2008) (quoting Schlup v. Delo, 513 U.S. 298, 321 (1995)). This exception to the procedural default rule is limited to habeas petitioners who can establish that “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Schlup, 513 U.S. at 327; see also Murray, 477 U.S. at 496; Cook, 538 F.3d at 1028.
C. Adjudication on the Merits and § 2254(d)
The Ninth Circuit has held that “a state has ‘adjudicated' a petitioner's constitutional claim ‘on the merits' for purposes of § 2254(d) when it has decided the petitioner's right to post-conviction relief on the basis of the substance of the constitutional claim advanced, rather than denying the claim on the basis of a procedural or other rule precluding state court review of the merits.” Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir. 2004).
If a habeas petition includes a claim that was properly exhausted, has not been procedurally defaulted, and was adjudicated on the merits in state court proceedings, federal court review is limited by § 2254(d). Under § 2254(d)(1), a federal court cannot grant habeas 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 United States Supreme Court at the time of the state court decision, Greene v. Fisher, 565 U.S. 34, 38 (2011); (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” in light of the record before the state court, 28 U.S.C. § 2254(d)(2); Harrington v. Richter, 562 U.S. 86 (2011). This standard is “difficult to meet.” Richter, 562 U.S. at 102. It is also 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) (internal quotations and citation omitted).
III.ANALYSIS
A. Procedural Status of Petitioner's Claims i.Ground One
Petitioner contends that A.R.S. § 13-107(B) has a 7-year statute of limitations period. Thus, because Petitioner was arrested for aggravated assault 18 years after the crime occurred, his arrest violates his Fourteenth Amendment due process rights.
In Arizona, exhaustion is satisfied if a petitioner presents the federal basis of his claim to the COA through either the direct appeal process or PCR proceedings. Here, Petitioner raised a similar issue on direct appeal after resentencing, arguing that A.R.S. § 13-107(B) has a 7-year statute of limitations and therefore the prosecution for his offenses must have commenced within 7 years of the date of the offenses. (Ex. N at 88). However, Petitioner did not argue the issue as a federal, constitutional claim, but rather as a matter of state law. See Lopez v. Schriro, 491 F.3d 1029, 1040 (9th Cir. 2007) (“in order to fulfill exhaustion requirements, a petitioner must present to the state courts the substantial equivalent of the claim presented in federal court”); Tamalini v. Stewart, 249 F.3d 895, 898 (9th Cir. 2001) (a petitioner fairly presents his claim in state court only if the state court claim described both the same set of operative facts and the applicable law); see also Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“federal habeas corpus relief does not lie for errors of state law”); Rivera v. Illinois, 556 U.S. 148, 158 (2009) (“‘A mere error of state law . . . is not a denial of due process.'” (quoting Engle, 456 U.S. at 121 n.21)). Further, the COA stated that it would not address Petitioner's claims related to his underlying convictions, as his convictions were affirmed and not before the court on appeal. (Ex. O).
During Petitioner's second PCR proceedings, he listed “statute of limitations” in both his notice and pro se petition. (Exs. GG & II). However, Petitioner provided no additional explanation, supporting facts, or legal basis. Such a bare-bones statement of a claim can hardly be considered sufficient for proper presentation to the state court. Further, in summarily dismissing the PCR notice pursuant to Rule 32.2(b), and then denying relief and dismissing the petition, the PCR court applied an express procedural bar. (Exs. HH & JJ); see Coleman, 501 U.S. at 729-30. Thus, even if Petitioner had properly exhausted his claim in Ground One, the claim is procedurally defaulted because the PCR court applied an express procedural bar. In his petition for review to the COA, Petitioner again listed “statute of limitations” without any further explanation. (Ex. KK). The COA dismissed that petition when Petitioner failed to comply with Rule 32.9(c)(1)(i), which requires that a copy of the PCR ruling be attached to the petition for review. (Exs. LL & MM); see also Nunnemaker, 501 U.S. at 803 (a higher court's subsequent summary denial of review affirms the lower court's application of a procedural bar).
Finally, in Petitioner's third PCR proceedings, he again listed “statute of limitations” in his notice and petition without any accompanying explanation for the claim. (Exs. RR & SS). The PCR court dismissed the notice and petition because Petitioner failed to follow the procedural rules, and further found that Petitioner's claims were untimely and were previously raised and dismissed and therefore precluded under Rule 32.2(b). (Ex. TT). The court thus applied an express procedural bar. See High v. Ignacio, 408 F.3d 585, 590 (9th Cir. 2005) (where state form instructs petitioner to relate facts demonstrating good cause for delay in timely filing petition, and state court denies petition as untimely, federal court will accept state court's finding that there was not good cause for the delay and bar relief). Moreover, even assuming Petitioner did properly present this claim in his third PCR petition, the claim is nevertheless unexhausted because Petitioner failed to file a petition for review to the COA. See Ariz. R. Crim. P. 32.16(c)(4) (“A party's failure to raise any issue that could be raised in the petition for review . . . constitutes a waiver of appellate review of that issue.”); Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004) (“[A] petitioner satisfies the exhaustion requirement if he properly pursues a claim (1) throughout the entire direct appellate process of the state, or (2) throughout one entire judicial post-conviction process available in the state.” (quoting Liebman & Hertz, Federal Habeas Corpus Practice and Procedure, § 23.3b (4th ed. 1998))).
To properly exhaust a claim, a petitioner must “give the Arizona courts a ‘fair opportunity' to act on his federal [] claim before presenting it to the federal courts.” Castillo, 399 F.3d at 998. “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.” Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996); see also Grey v. Netherland, 518 U.S. 152, 162-63 (1996) (a petitioner does not satisfy the exhaustion requirement “by presenting the state courts only with the facts necessary to state a claim for relief[;]” the specific constitutional right allegedly violated must also be identified); Duncan v. Henry, 513 U.S. 364, 366 (1995) (“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.”); Lopez, 491 F.3d at 1040 (“in order to fulfill exhaustion requirements, a petitioner must present to the state courts the substantial equivalent of the claim presented in federal court”). Nor can Petitioner transform his state law claims into federal ones merely by asserting a violation of due process. See Rule 2(c), Rules Governing § 2254 cases; Rivera v. Illinois, 556 U.S. 148, 158 (2009); Mayle v. Felix, 545 U.S. 644, 646 (2005); see also Jones v. Gomez, 66 F.3d 199, 205 (9th Cir. 1995) (a petitioner's conclusory suggestion that a constitutional right has been violated falls “far short of stating a valid claim of constitutional violation” sufficient to provide a basis for habeas relief).
As this Court has explained:
Fair presentation requires a petitioner to describe both the operative facts and the federal legal theory to the state courts. Reese, 541 U.S. at 28, 124 S.Ct. 1347. It is not enough that all of the facts necessary to support the federal claim were before the state court or that a “somewhat similar” state law claim was raised. Reese, 541 U.S. at 28, 124 S.Ct. 1347 (stating that a reference to ineffective assistance of counsel does not alert the court to federal nature of the claim). Rather, the habeas petitioner must cite in state court to the specific constitutional guarantee upon which he bases his claim in federal court. Tamalini v. Stewart, 249 F.3d 895, 898 (9th Cir. 2001). Similarly, general appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair trial, are insufficient to establish fair presentation of a federal constitutional claim. Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir. 2000), amended on other grounds, 247 F.3d 904 (9th Cir. 2001); Shumway v. Payne, 223 F.3d 982, 987 (9th Cir.2000) (insufficient for prisoner to have made “a general appeal to a constitutional guarantee, ” such as a naked reference to “due process, ” or to a “constitutional error” or a “fair trial”). Likewise, a mere reference to the “Constitution of the United States” does not preserve a federal claim. Gray v. Netherland, 518 U.S. 152, 162-63, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996). Even if the basis of a federal claim is “self-evident” or if the claim would be decided “on the same considerations” under state or federal law, the petitioner must make the federal nature of the claim “explicit either by citing federal law or the decision of the federal courts . . . .” Lyons, 232 F.3d at 668. A state prisoner does not fairly present a claim to the state court if the court must read beyond the pleadings filed in that court to discover the federal claim. Baldwin, 541 U.S. at 27, 124 S.Ct. 1347.Date v. Schriro, 619 F.Supp.2d 736, 764-65 (D. Ariz. 2008).
Accordingly, the undersigned finds that Petitioner's claim in Ground One is unexhausted because he failed to properly present it to the state courts in a procedurally appropriate manner. See Castillo v. McFadden, 399 F.3d 993, 998 (9th Cir. 2004) (To properly exhaust a claim, a petitioner must “give the Arizona courts a ‘fair opportunity' to act on his federal [] claim before presenting it to the federal courts.”); Baldwin, 541 U.S. at 29; Crowell, 483 F.Supp.2d at 931-33.
ii. Ground Two
Petitioner alleges prosecutorial misconduct violating due process under the Fourteenth Amendment. Petitioner contends that the prosecutor persuaded his trial counsel to agree to an illegal sentence and persuaded the judge to sentence Petitioner to 25 years imprisonment for the aggravated assault conviction. As an initial matter, the undersigned notes that on direct appeal, Petitioner argued that the trial court erred by sentencing Petitioner to 25 years imprisonment for aggravated assault using statutes that did not become effective until after the date of the offense. (Ex. F). The State conceded error, and on remand Petitioner was resentenced under the correct statute to 20 years imprisonment. (Ex. J). Thus, this issue is effectively moot, as Petitioner has been resentenced according to the applicable law.
As in Petitioner's Ground One claim, Petitioner listed “prosecutorial misconduct” during his second PCR proceedings but failed to provide any additional factual or legal basis supporting this claim. (Exs. GG & II); see Date, 619 F.Supp.2d at 764-65. The PCR court summarily dismissed the PCR notice pursuant to Rule 32.2(b) and consequently denied relief and dismissed the petition, and thus applied an express procedural bar. (Exs. HH & JJ); see Coleman, 501 U.S. at 729-30. In his petition for review to the COA, Petitioner again listed “prosecutorial misconduct” without any further explanation, (Ex. KK), and the court dismissed the petition for failure to comply with Rule 32.9(c)(1)(i) (Exs. LL & MM); see Nunnemaker, 501 U.S. at 803.
Finally, in Petitioner's third PCR proceedings, he again listed “prosecutorial misconduct” in his notice and petition without any accompanying explanation for the claim. (Exs. RR & SS); see Date, 619 F.Supp.2d at 764-65. The PCR court dismissed the notice and petition because Petitioner failed to follow the procedural rules, and further found that Petitioner's claims were untimely and were previously raised and dismissed and therefore precluded under Rule 32.2(b). (Ex. TT). Thus, even if Petitioner had properly exhausted his claim in Ground Two, the claim is procedurally defaulted because the Rule 32 court applied an express procedural bar. Further, Petitioner failed to file a petition for review to the COA. See Ariz. R. Crim. P. 32.16(c)(4).
Accordingly, the undersigned finds that Petitioner's Ground Two claim is unexhausted because Petitioner failed to properly present it to the state courts in a procedurally appropriate manner. See Castillo, 399 F.3d at 998; Baldwin, 541 U.S. at 29; Crowell, 483 F.Supp.2d at 931-33.
iii. Ground Three
Petitioner alleges ineffective assistance of trial counsel because counsel allowed the judge to sentence Petitioner to 25 years for aggravated assault. Petitioner states that counsel let the judge violate the Fourteenth Amendment, due process, and the Eighth Amendment.
As noted above, this issue is effectively moot, as Petitioner was resentenced on the aggravated assault conviction following a remand on his direct appeal.
Claims for IAC are properly raised in a Rule 32 petition for PCR. While Petitioner did raise IAC claims in his first Rule 32 petition related to his sexual assault conviction, he did not exhaust the specific claim that he now makes that counsel was ineffective for allowing the trial judge to sentence him to 25 years imprisonment for aggravated assault. “As a general matter, each ‘unrelated alleged instance [] of counsel's ineffectiveness' is a separate claim for purposes of exhaustion.” Gulbrandson v. Ryan, 738 F.3d 976, 992 (9th Cir. 2013) (quoting Moormann v. Schriro, 426 F.3d 1044, 1056 (9th Cir. 2005)). Asserting an IAC claim “based on one set of facts [presented to the state courts], does not exhaust other claims of ineffective assistance of counsel based on different facts” that were not presented to the state courts. Date, 619 F.Supp.2d at 788. And, exhaustion requires that a petitioner fairly present each claim to the state court in a procedurally appropriate manner. Baldwin, 541 U.S. at 29.
While Petitioner listed “ineffective assistance of counsel” in his second PCR notice and petition, he again failed to provide any additional factual or legal basis to support the claim. (Exs. GG & II); see Date, 619 F.Supp.2d at 764-65. The PCR court summarily dismissed the PCR notice pursuant to Rule 32.2(b) and consequently denied relief and dismissed the petition, and thus applied an express procedural bar. (Exs. HH & JJ); see Coleman, 501 U.S. at 729-30. In his petition for review to the COA, Petitioner again listed “ineffective assistance of counsel” without any further explanation, (Ex. KK), and the court dismissed the petition for failure to comply with Rule 32.9(c)(1)(i) (Exs. LL & MM); see Nunnemaker, 501 U.S. at 803.
Finally, in Petitioner's third PCR proceedings, he again listed “ineffective assistance of counsel” in his notice and petition without any accompanying explanation for the claim. (Exs. RR & SS); see Date, 619 F.Supp.2d at 764-65. The PCR court dismissed the notice and petition because Petitioner failed to follow the procedural rules, and further found that Petitioner's claims were untimely and were previously raised and dismissed and therefore precluded under Rule 32.2(b). (Ex. TT). Thus, even if Petitioner had properly exhausted his claim in Ground Three, the claim is procedurally defaulted because the Rule 32 court applied an express procedural bar. Further, Petitioner failed to file a petition for review to the COA. See Ariz. R. Crim. P. 32.16(c)(4).
Accordingly, the undersigned finds that Petitioner's Ground Three claim is unexhausted because Petitioner failed to properly present it to the state courts in a procedurally appropriate manner. See Castillo, 399 F.3d at 998; Baldwin, 541 U.S. at 29; Crowell, 483 F.Supp.2d at 931-33.
iv. Ground Four
Petitioner alleges errors in the jury selection process that denied him a fair trial and violated the Fourteenth Amendment equal protection clause. Specifically, Petitioner alleges that the jury was comprised of mostly white and older members, and that there was only one juror of Petitioner's race.
While Petitioner listed “jury selection” and “jury misconduct” in his second PCR notice and petition, he again failed to provide any additional factual or legal basis to support the claims. (Exs. GG & II); see Date, 619 F.Supp.2d at 764-65. The PCR court summarily dismissed the PCR notice pursuant to Rule 32.2(b) and consequently denied relief and dismissed the petition, and thus applied an express procedural bar. (Exs. HH & JJ); see Coleman, 501 U.S. at 729-30. Thus, even if Petitioner had properly exhausted his claim in Ground Four, the claim is procedurally defaulted because the Rule 32 court applied an express procedural bar. In his petition for review to the COA, Petitioner failed to list “jury selection” and “jury misconduct” as issues for review. See Ariz. R. Crim. P. 32.16(c)(4).
Petitioner also failed to list “jury selection” and “jury misconduct” as issues in his third PCR proceedings.
Accordingly, the undersigned finds that Petitioner's Ground Four claim is unexhausted because Petitioner failed to properly present it to the state courts in a procedurally appropriate manner. See Castillo, 399 F.3d at 998; Baldwin, 541 U.S. at 29; Crowell, 483 F.Supp.2d at 931-33.
v. Ground Five
Petitioner contends that the trial judge violated the Eighth Amendment by sentencing Petitioner to life imprisonment for sexual assault when there was no evidence of penetration and Petitioner was arrested 18 years after the crime occurred.
In his second PCR notice, Petitioner listed the following: innocent, post-indictment delay, Brady claim, illegal sentence, jury misconduct, prosecutorial misconduct, disclosure, discovery, statute of limitations, jury selection, judicial bias, plain error, due process, ineffective assistance of counsel, prejudicial fundamental error, and Fourteenth Amendment violations. (Ex. GG at 35). Construing the notice liberally, Petitioner's claim of “illegal sentence” generally relates to the claim he now raises in Ground Five. However, Petitioner failed to provide any factual or legal explanation for the claim during his second PCR proceedings. (Exs. GG & II); see Date, 619 F.Supp.2d at 764-65. The PCR court summarily dismissed the PCR notice pursuant to Rule 32.2(b) and consequently denied relief and dismissed the petition, and thus applied an express procedural bar. (Exs. HH & JJ); see Coleman, 501 U.S. at 729-30. In his petition for review to the COA, Petitioner again listed “illegal sentence” without any further explanation, as well as “Eighth Amendment violation, ” (Ex. KK), and the court dismissed the petition for failure to comply with Rule 32.9(c)(1)(i) (Exs. LL & MM); see Nunnemaker, 501 U.S. at 803.
Finally, in Petitioner's third PCR proceedings, he again listed “illegal sentence” and “Eighth Amendment violation” in his notice and petition without any accompanying explanation for the claims. (Exs. RR & SS); see Date, 619 F.Supp.2d at 764-65. The PCR court dismissed the notice and petition because Petitioner failed to follow the procedural rules, and further found that Petitioner's claims were untimely and were previously raised and dismissed and therefore precluded under Rule 32.2(b). (Ex. TT). Thus, even if Petitioner had properly exhausted his claim in Ground Five, the claim is procedurally defaulted because the Rule 32 court applied an express procedural bar. Further, Petitioner failed to file a petition for review to the COA. See Ariz. R. Crim. P. 32.16(c)(4).
Accordingly, the undersigned finds that Petitioner's Ground Five claim is unexhausted because Petitioner failed to properly present it to the state courts in a procedurally appropriate manner. See Castillo, 399 F.3d at 998; Baldwin, 541 U.S. at 29; Crowell, 483 F.Supp.2d at 931-33.
vi. Ground Six
Petitioner alleges a claim of fundamental, prejudicial error because he was sentenced to life imprisonment for sexual assault when there was no proof of penetration. As an initial matter, the undersigned notes that this is essentially a restatement of Petitioner's Ground Five claim, as both claims allege that Petitioner was wrongly sentenced to life imprisonment for sexual assault when there was no proof of penetration.
While Petitioner listed “fundamental prejudicial error” in his second PCR notice, he failed to provide any additional factual or legal basis to support the claim. (Ex. GG); see Date, 619 F.Supp.2d at 764-65. Petitioner did not make a claim of fundamental prejudicial error in his second PCR petition. (Ex. II). The PCR court summarily dismissed the PCR notice pursuant to Rule 32.2(b) and consequently denied relief and dismissed the petition, and thus applied an express procedural bar. (Exs. HH & JJ); see Coleman, 501 U.S. at 729- 30. In his petition for review to the COA, Petitioner again listed “fundamental prejudicial error” without any further explanation, (Ex. KK), and the court dismissed the petition for failure to comply with Rule 32.9(c)(1)(i) (Exs. LL & MM); see Nunnemaker, 501 U.S. at 803.
Finally, in Petitioner's third PCR proceedings, he again listed “fundamental prejudicial error” in his notice and petition without any accompanying explanation for the claim. (Exs. RR & SS); see Date, 619 F.Supp.2d at 764-65. The PCR court dismissed the notice and petition because Petitioner failed to follow the procedural rules, and further found that Petitioner's claims were untimely and were previously raised and dismissed and therefore precluded under Rule 32.2(b). (Ex. TT). Thus, even if Petitioner had properly exhausted his claim in Ground Six, the claim is procedurally defaulted because the Rule 32 court applied an express procedural bar. Further, Petitioner failed to file a petition for review to the COA. See Ariz. R. Crim. P. 32.16(c)(4).
Accordingly, the undersigned finds that Petitioner's Ground Six claim is unexhausted because Petitioner failed to properly present it to the state courts in a procedurally appropriate manner. See Castillo, 399 F.3d at 998; Baldwin, 541 U.S. at 29; Crowell, 483 F.Supp.2d at 931-33.
vii. Ground Seven
Petitioner contends that the Fourteenth Amendment was violated when he was sentenced to life imprisonment when there was no proof of penetration, constituting cruel punishment and denying Petitioner freedom of liberty. The undersigned notes that this claim is similar to the claims raised in Grounds Five and Six-Petitioner is essentially contesting the sufficiency of the evidence for his sexual assault conviction.
While Petitioner listed “Fourteenth Amendment violations” in his second PCR notice, he failed to provide any additional factual or legal basis to support the claim. (Ex. GG); see Date, 619 F.Supp.2d at 764-65. Petitioner did not make a claim of Fourteenth Amendment violations in his second PCR petition. (Ex. II). The PCR court summarily dismissed the PCR notice pursuant to Rule 32.2(b) and consequently denied relief and dismissed the petition, and thus applied an express procedural bar. (Exs. HH & JJ); see Coleman, 501 U.S. at 729-30. In his petition for review to the COA, Petitioner again listed “Fourteenth Amendment violations” without any further explanation, (Ex. KK), and the court dismissed the petition for failure to comply with Rule 32.9(c)(1)(i) (Exs. LL & MM); see Nunnemaker, 501 U.S. at 803.
Finally, in Petitioner's third PCR proceedings, he again listed “Fourteenth Amendment violations” in his notice and petition without any accompanying explanation for the claim. (Exs. RR & SS); see Date, 619 F.Supp.2d at 764-65. The PCR court dismissed the notice and petition because Petitioner failed to follow the procedural rules, and further found that Petitioner's claims were untimely and were previously raised and dismissed and therefore precluded under Rule 32.2(b). (Ex. TT). Thus, even if Petitioner had properly exhausted his claim in Ground Seven, the claim is procedurally defaulted because the Rule 32 court applied an express procedural bar. Further, Petitioner failed to file a petition for review to the COA. See Ariz. R. Crim. P. 32.16(c)(4).
Accordingly, the undersigned finds that Petitioner's Ground Seven claim is unexhausted because Petitioner failed to properly present it to the state courts in a procedurally appropriate manner. See Castillo, 399 F.3d at 998; Baldwin, 541 U.S. at 29; Crowell, 483 F.Supp.2d at 931-33.
viii. Ground Eight
Petitioner alleges judicial bias in violation of the due process clause that denied him a fair trial. Petitioner specifically contends that the trial judge should have dismissed the sexual assault charge with a directed verdict of not guilty because there was no proof of penetration, and that the judge should have found him guilty of a lesser included offense.
While Petitioner listed “judicial bias” and “due process” in his second PCR notice, he failed to provide any additional factual or legal basis to support the claims. (Ex. GG); see Date, 619 F.Supp.2d at 764-65. Petitioner did not make a claim of judicial bias or due process violations in his second PCR petition. (Ex. II). The PCR court summarily dismissed the PCR notice pursuant to Rule 32.2(b) and consequently denied relief and dismissed the petition, and thus applied an express procedural bar. (Exs. HH & JJ); see Coleman, 501 U.S. at 729-30. In his petition for review to the COA, Petitioner again listed “judicial bias” and “due process” without any further explanation, (Ex. KK), and the court dismissed the petition for failure to comply with Rule 32.9(c)(1)(i) (Exs. LL & MM); see Nunnemaker, 501 U.S. at 803.
Finally, in Petitioner's third PCR proceedings, he again listed “judicial bias” and “due process” in his notice and petition without any accompanying explanation for the claims. (Exs. RR & SS); see Date, 619 F.Supp.2d at 764-65. The PCR court dismissed the notice and petition because Petitioner failed to follow the procedural rules, and further found that Petitioner's claims were untimely and were previously raised and dismissed and therefore precluded under Rule 32.2(b). (Ex. TT). Thus, even if Petitioner had properly exhausted his claim in Ground Eight, the claim is procedurally defaulted because the Rule 32 court applied an express procedural bar. Further, Petitioner failed to file a petition for review to the COA. See Ariz. R. Crim. P. 32.16(c)(4).
Accordingly, the undersigned finds that Petitioner's Ground Eight claim is unexhausted because Petitioner failed to properly present it to the state courts in a procedurally appropriate manner. See Castillo, 399 F.3d at 998; Baldwin, 541 U.S. at 29; Crowell, 483 F.Supp.2d at 931-33.
B. Effect of Procedural Bar
Claims not previously presented to the state courts on either direct appeal or collateral review are generally barred from federal review because any attempt to return to state court to present them would be futile unless the claims fit into a narrow range of exceptions. See Ariz. R. Crim. P. 32.1(d)-(h), 32.2(a) (precluding claims not raised on direct appeal or in prior post-conviction relief petitions), 32.4(a) (time bar), 32.9(c) (petition for review must be filed within thirty days of trial court's decision). Because these rules have been found to be consistently and regularly followed, and because they are independent of federal law, either their specific application to a claim by an Arizona court, or their operation to preclude a return to state court to exhaust a claim, will procedurally bar subsequent review of the merits of such a claim by a federal habeas court. Stewart v. Smith, 536 U.S. 856, 860 (2002); Ortiz v. Stewart, 149 F.3d 923, 931-32 (9th Cir. 1998) (Rule 32 is strictly followed); State v. Mata, 916 P.2d 1035, 1050-52 (Ariz. 1996) (waiver and preclusion rules strictly applied in post-conviction proceedings).
As explained above, all of Petitioner's claims are unexhausted because Petitioner failed to properly present them to the state courts in a procedurally appropriate manner. Arizona Rules of Criminal Procedure regarding timeliness and preclusion prevent Petitioner from now exhausting those claims in state court. Accordingly, the claims are both technically exhausted and procedurally defaulted and thus not properly before this Court for review. See Crowell, 483 F.Supp.2d at 931-33; Coleman, 501 U.S. at 732, 735 n.1; Garcia, 2013 WL 4714370 at * 8.
A federal court may not consider the merits of a procedurally defaulted claim unless the petitioner can demonstrate cause for his noncompliance and actual prejudice, or establish that a miscarriage of justice would result from the lack of review. See Schlup v. Delo, 513 U.S. 298, 321 (1995). Both cause and prejudice must be shown to excuse a procedural default, but the Court is not required to examine the existence of prejudice if the petitioner fails to establish cause. Engle, 456 U.S. at 134 n.43; Thomas, 945 F.2d at 1123 n.10.
Here, Petitioner has failed to show cause for, or prejudice arising from, the procedural default of his claims, and the Court can glean none from the record before it. See Martinez, 566 U.S. at 10; Murray, 477 U.S. at 488. There was no objective factor external to Petitioner's defense that impeded his efforts to comply with the State's procedural rules; Petitioner simply failed to raise the specific claims he now attempts to raise on habeas to the state courts in a timely and procedurally appropriate manner. Petitioner does not allege any interference by officials that made compliance with the State's procedural rules impracticable and has not shown that the factual or legal basis for the claims was not reasonably available. See Murray, 477 U.S. at 488-489.
Further, Petitioner's status as an inmate and lack of legal knowledge do not constitute cause. See Lewis v. Casey, 518 U.S. 343, 355 (1996) (The right of access to the courts “does not guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip-and-fall claims. The tools it requires to be provided are those that the inmates need in order to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement. Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration.”); see also Thomas, 945 F.2d at 1123 (alleged inadequate prison library and legal assistance procedures did not establish cause where petitioner “failed to demonstrate that he, himself, had been denied access to the library” and petitioner's filing of pro se pleadings reflected adequate access to and use of legal materials); 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); Hughes, 800 F.2d at 908 (petitioner's pro se status and ignorance of the law do not satisfy the cause standard).
While the standard for cause and prejudice is one of discretion and is intended to be flexible, it must yield to exceptional circumstances only. Hughes, 800 F.2d at 909. Petitioner bears the responsibility for failing to raise his claims in a timely, properly filed state proceeding and properly exhausting those claims to the Arizona COA. See Williams v. Taylor, 529 U.S. 420, 437 (2000) (“Federal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings.”). Accordingly, because Petitioner has failed to establish cause to excuse the procedural default of his claims, the Court need not examine the merits of Petitioner's defaulted claims or the purported prejudice.. . .
In order to pass through the Schlup gateway, a petitioner's case must be “truly extraordinary, ” 513 U.S. at 327, and a “tenable actual-innocence gateway” claim will not be found unless the petitioner “persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” McQuiggin, 569 U.S. at 386 (citing Schlup, 513 U.S. at 329). A showing that a reasonable doubt exists in light of the new evidence is not sufficient; rather, the petitioner must show that “it is more likely than not that no reasonable juror would have found [petitioner] guilty beyond a reasonable doubt.” Schlup, 513 U.S at 327. Thus, the “precedents holding that a habeas petitioner satisfied [the Schlup standard] have typically involved dramatic new evidence of innocence.” Larsen v. Soto, 742 F.3d 1083, 1095-96 (9th Cir. 2013). Petitioner does not argue a fundamental miscarriage of justice to excuse the procedural default of his claims. A federal court may review the merits of a procedurally defaulted habeas claim if the petitioner demonstrates that failure to consider the merits of his claim will result in a “fundamental miscarriage of justice.” Schlup, 513 U.S. at 327. A “fundamental miscarriage of justice” occurs when a constitutional violation has probably resulted in the conviction of one who is actually innocent. Id. Actual innocence thus serves as a “gateway” for a petitioner to have procedurally or time-barred constitutional claims reviewed. McQuiggin v. Perkins, 569 U.S. 383, 386 (2013); Smith v. Baldwin, 510 F.3d 1127, 1139-49 (9th Cir. 2007) (en banc) (A claim of innocence under Schlup is “not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.”).
IV. RECOMMENDATION
In conclusion, the Magistrate Judge RECOMMENDS that the District Court DENY Petitioner Claude Ranger's Petition for Writ of Habeas Corpus. (Doc. 1).
Pursuant to 28 U.S.C. §636(b), any party may serve and file written objections within fourteen days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen days after being served with a copy thereof. Fed.R.Civ.P. 72(b). No reply to any response shall be filed. See Id. If objections are not timely filed, then the parties' rights to de novo review by the District Court may be deemed waived. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).