Opinion
CV-22-00118-PHX-GMS (DMF)
07-07-2022
Roger Perry Riester, Petitioner, v. David Shinn, et al., Respondents.
HONORABLE G. MURRAY SNOW, CHIEF UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION
Honorable Deborah M. Fine United States Magistrate Judge.
This matter is on referral to the undersigned for further proceedings and a report and recommendation pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure. (Doc. 3 at 4) Petitioner Roger Perry Riester (“Petitioner”), who is confined in the Arizona State Prison Complex in San Luis, Arizona, filed a pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (“Petition”) on December 30, 2021. (Doc. 1) On February 9, 2022, the Court ordered Respondents to answer the Petition. (Doc. 3)
Citation to the record indicates documents as displayed in the official Court electronic document filing system maintained by the District of Arizona under Case No. CV-22-00118-GMS (DMF).
The Petition was docketed by the Clerk of Court on January 21, 2022. (Doc. 1 at 1) Petitioner signed the Petition on December 30, 2021. (Doc. 1 at 11) Assuming Petitioner gave the Petition to prison authorities on the day it was signed, and applying the prison mailbox rule, December 30, 2021, is the operative filing date. See Butler v. Long, 752 F.3d 1177, 1178 n.1 (9th Cir. 2014); Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (“A petition is considered to be filed on the date a prisoner hands the petition to prison officials for mailing.”).
Respondents filed their Limited Answer to the Petition on May 11, 2022. (Doc. 10) Petitioner did not file a reply, and the time to do so has expired. (Doc. 3 at 3)
For the reasons set forth below, it is recommended that the Petition be dismissed with prejudice and that a certificate of appealability be denied.
I. BACKGROUND
A. Events Resulting in Charges Against Petitioner
In its memorandum decision on Petitioner's direct appeal of his conviction and sentence, the Arizona Court of Appeals summarized the events leading to the charges, convictions, and sentences in Maricopa County Superior Court, case number CR2019106627-001, on which Petitioner's habeas claims are based:
Riester called police from his house to report that someone had followed him “all the way to his home,” adding that he just encountered “five other people wanting to kill him.” Police officers responded and left after finding no evidence that Riester was being followed. Unsatisfied, Riester later drove to police headquarters in downtown Phoenix, reasoning he might draw out “the people [who] were following him.”
Riester arrived at police headquarters after dark. A police officer and volunteer sat at the front desk. Riester appeared at the entrance holding his .357 Magnum Revolver. The officer told Riester over an intercom that firearms were not allowed inside the building. Riester placed his firearm on the ground and was admitted. He repeated to the officer that he was being pursued by people with bad intentions. He was described as “unnerved” and “moving back and forth.” The officer concluded that Riester was a “paranoid mess” and told him to return home. Riester abruptly exited but did not leave. He instead paced outside the entrance for twenty minutes, crouching behind planters whenever cars drove by.
Around this time, three unarmed, plainclothes officers were returning on foot to headquarters. As they approached the front entrance, Riester drew his firearm, aimed at the officers and warned to “[g]et back or I'll fucking shoot you.” The officers darted for cover and escaped.
Riester called 9-1-1 from his cell phone, insisting that a “bunch” of people were “chas[ing] [him] all around town” in “several different vehicles.” He was arrested without further incident. Officers found the firearm in a nearby planter and two speedloaders (to quickly reload the firearm) in Riester's pockets.(Doc. 10-1 at 4-5)
The appellate court's stated facts are entitled to the presumption of correctness. See 28 U.S.C. § 2254(e)(1); Purkett v. Elem, 514 U.S. 765, 769 (1995) (per curiam) (“In habeas proceedings in federal court, the factual findings of state courts are presumed to be correct.”); Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012) (rejecting argument that the statement of facts in an Arizona Supreme Court opinion should not be afforded the presumption of correctness).
B. Petitioner's Convictions and Sentence
The Arizona Court of Appeals explained that:
[a] grand jury indicted Riester on three counts of aggravated assault, class 3 dangerous felonies, and one count of misconduct involving weapons, a class 4 felony. See A.R.S. §§ 13-105(13); -1203(A)(2); -1204(A)(2), (E); -3102(A)(4), (M). Riester pleaded not guilty to all charges. Later, the State successfully moved to dismiss the misconduct involving weapons charge.
A five-day jury trial followed. Riester defended on the grounds that he feared for his life and did not intend to harm the officers. The State presented five witnesses. Riester unsuccessfully moved for a Rule 20 judgment of acquittal at the close of the State's case. Although he did not testify, Riester called three witnesses. And, at issue here, he also requested a standard jury instruction on the justification of defensive display of a firearm. See A.R.S. § 13-421(A), (D)(2). The superior court denied the request.
The jury convicted Riester on three counts of aggravated assault and found they were dangerous offenses. After denying Riester's post-trial motions, the court sentenced him to concurrent five-year prison terms for each conviction, minus 207 days of pre-incarceration credit. See A.R.S. § 13-704(A). Riester timely appealed.(Doc. 10-1 at 5)
See footnote 3, supra.
C. Direct Appeal and Post-Conviction Relief (“PCR”) Action
1. Petitioner's direct appeal
Petitioner's appointed trial counsel timely appealed Petitioner's judgment and sentence. (Doc. 10-1 at 5) Appointed trial counsel filed a brief in the Arizona Court of Appeals, arguing that the superior court “erred by refusing to instruct the jury on the defensive display of a firearm.” (Id. at 18) Counsel argued that a court must provide such an instruction when the slightest evidence supports it, must view evidence most favorably to the defendant, and may rely on a defendant's version of events “so long as a reasonable person in [defendant's] place would have been fearful.” (Id. at 19-20)
In a memorandum decision issued August 27, 2020, the Arizona Court of Appeals reviewed the trial court record for error and determined that the record did not support a jury instruction for justification of defensive display of a firearm. (Id. at 4-6) The court of appeals concluded that “[t]he evidence does not show that Riester ‘reasonably regarded' three approaching unarmed, plainclothes officers as an ‘imminent danger' to his life or safety” and stated that Arizona's self-defense statutes employ objective, “reasonable person” standards, instead of subjective standards based on a defendant's beliefs. (Id. at 6) The court of appeals consequently affirmed Petitioner's convictions and sentences. (Id.)
Petitioner filed a petition for review with the Arizona Supreme Court, asserting that the superior court did not instruct the jury on the defensive display of a firearm; that the county attorney misled the jury by stating that Petitioner took a shooting stance, despite video showing otherwise; that his due process rights were violated; that a video of the incident was not seen by the jury; and that the prosecutor committed misconduct. (Id. at 53) The Arizona Supreme Court denied the petition for review on February 5, 2021. (Id. at 69)
Petitioner signed his petition for review on September 28, 2020. (Doc. 10-1 at 54)
On March 9, 2021, the Arizona Court of Appeals issued a mandate. (Id.)
2. Petitioner's PCR action
Petitioner timely filed a PCR notice in the superior court on November 23, 2020,and requested appointment of counsel. (Id. at 71) The superior court appointed PCR counsel for Petitioner on December 18, 2020. (Id. at 75-76) Appointed PCR counsel filed a notice of completion of post-conviction review, advising the superior court that she could find no colorable claims to raise in a PCR petition. (Id. at 78-79) Although the superior court allowed Petitioner time to file a pro per PCR petition (id. at 82-83), Petitioner did not file a petition, nor did he request an extension of time to file a petition (id. at 85). The superior court consequently dismissed Petitioner's Rule 32 proceeding on December 10, 2021. (Id.)
Petitioner signed his PCR notice on November 17, 2020. (Doc. 10-1 at 73) The superior court stated that Petitioner's PCR notice was filed on November 30, 2020 (id. at 75), but Petitioner's form PCR notice bears a stamp reflecting that the notice was filed on November 23, 2020 (id. at 71).
II. PETITIONER'S HABEAS CLAIMS
Petitioner asserts two grounds for relief in his December 30, 2021, habeas Petition.(Doc. 1) In Ground 1, Petitioner argues that the trial court refused to instruct the jury on the defensive display of a firearm. (Id. at 6) In Ground 2, Petitioner argues that his due process rights were violated. (Id. at 7)
See footnote 2, supra.
In their Limited Answer to the Petition, Respondents contend that Petitioner's Ground 1 claim alleges no federal constitutional violation and that Petitioner's Ground 2 claim was not fairly presented on direct appeal or in PCR proceedings, aside from an unsupported claim of a due process violation in Petitioner's petition for review on direct appeal in the Arizona Supreme Court. (Doc. 10 at 7-9) Accordingly, Respondents argue that Petitioner's claims are unexhausted and procedurally defaulted. (Id.)
Petitioner did not file a reply to Respondents' Limited Answer.
III. LEGAL FRAMEWORK OF PROCEDURAL DEFAULT
A state prisoner must properly exhaust all state court remedies before this Court may grant an application for a writ of habeas corpus. 28 U.S.C. § 2254(b)(1), (c); Duncan v. Henry, 513 U.S. 364, 365 (1995); Coleman v. Thompson, 501 U.S. 722, 731 (1991). Arizona prisoners properly exhaust state remedies by fairly presenting claims to the Arizona Court of Appeals in a procedurally appropriate manner. O'Sullivan v. Boerckel, 526 U.S. 838, 843-45 (1999); Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999). To be fairly presented, a claim must include a statement of the operative facts and the specific federal legal theory. Baldwin v. Reese, 541 U.S. 27, 32-33 (2004); Gray v. Netherland, 518 U.S. 152, 162-63 (1996); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (“The mere similarity between a claim of state and federal error is insufficient to establish exhaustion.”).
In Arizona, a petitioner must fairly present his claims to the Arizona Court of Appeals by properly pursuing them through the state's direct appeal process or through appropriate post-conviction relief. See Swoopes, 196 F.3d at 1010; Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994); Castillo v. McFadden, 399 F.3d 993, 998 & n.3 (9th Cir. 2005). Fair presentment of claims to the Arizona Court of Appeals requires a description of “both the operative facts and the federal legal theory on which [a] claim is based so that the state courts [could] have a ‘fair opportunity' to apply controlling legal principles to the facts bearing upon [the] constitutional claim.” McFadden, 399 F.3d at 999 (quoting Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003)).
It is not fair presentment, for example, that “all the facts necessary to support the federal claim were before the state courts ... or that a somewhat similar state-law claim was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam) (internal citation omitted). It is also not enough to rely on a “general appeal to a constitutional guarantee as broad as due process to present the ‘substance' of such a claim to a state court.” Netherland, 518 U.S. at 163; see also McFadden, 399 F.3d at 1002-03 (finding habeas petitioner did not give the state appellate court a fair opportunity to rule on a federal due process claim because “[e]xhaustion demands more than drive-by citation, detached from any articulation of an underlying federal legal theory,” and the petitioner's claim in state court was a “conclusory, scattershot citation of federal constitutional provisions, divorced from any articulated federal legal theory”).
Fair presentment is not achieved by raising the claim for “the first and only time in a procedural context in which its merits will not be considered,” unless there are special circumstances. Castille v. Peoples, 489 U.S. 346, 351 (1989). As example, raising a claim for the first time in a discretionary petition for review to the Arizona Supreme Court or in a special action petition is not sufficient to achieve fair presentment. See Casey v. Moore, 386 F.3d 896, 918 (9th Cir. 2004) (“Because we conclude that Casey raised his federal constitutional claims for the first and only time to the state's highest court on discretionary review, he did not fairly present them.”) (footnote omitted).
A corollary to the exhaustion requirement is the “procedural default doctrine.” The procedural default doctrine limits a petitioner from proceeding in federal court where his claim is procedurally barred in state court and “has its roots in the general principle that federal courts will not disturb state court judgments based on adequate and independent state law procedural grounds.” Dretke v. Haley, 541 U.S. 386, 392 (2004). 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. This is called an express procedural bar. An express procedural bar exists if the state court denies or dismisses a claim based on a procedural bar “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); Stewart v. Smith, 536 U.S. 856, 860 (2002) (Arizona's “Rule 32.2(a)(3) determinations are independent of federal law because they do not depend upon a federal constitutional ruling on the merits”); Johnson v. Mississippi, 486 U.S. 578, 587 (1988) (“adequate” grounds exist when a state strictly or regularly follows its procedural rule).
Moreover, if a state court applies a procedural bar, but goes on to alternatively address the merits of the federal claim, the claim is still barred from federal review. See Harris, 489 U.S. at 264 n.10 (“[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law.... In this way, a state court may reach a federal question without sacrificing its interests in finality, federalism, and comity.”) (citations omitted); Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003) (“A state court's application of a procedural rule is not undermined where, as here, the state court simultaneously rejects the merits of the claim.”) (citing Harris, 489 U.S. at 264 n.10).
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.” Coleman, 501 U.S. at 735 n.1; Boerckel, 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 postconviction relief barred petitioner from returning to state court to exhaust his claims). This is called an implied procedural bar. Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). 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.”).
In Arizona, claims not properly presented to the state courts are generally barred from federal review because an attempt to return to state court to present them is futile unless the claims fit in a narrow category of claims for which a successive petition is permitted. See former rules Ariz. R. Crim. P. 32.2(a) (precluding claims not raised on appeal or in prior petitions for post-conviction relief), 32.4(a) (time bar), 32.1(d)-(h), 32.9(c) (petition for review must be filed within thirty days of trial court's decision); see also current rules Ariz. R. Crim. P. 32.4(b)(3) (time bar); Ariz. R. Crim. P. 32.1(b) through (h) and 32.2(b) (permitting successive PCR proceedings on certain grounds and specified circumstances); 32.16(a)(1) (petition for review must be filed within thirty days of trial court's decision).
Effective January 1, 2020, former Arizona Rules of Criminal Procedure (“Rules”) 32 and 33 were abrogated, and new Rules 32 and 33 were adopted. See Arizona Supreme Court Order No. R-19-0012. As a general matter, the substance of former Rule 32 was divided among the two new rules based on whether a defendant was convicted at trial (new Rule 32) or had pled guilty or no contest (new Rule 33). See id.; Pet. to Amend (Jan. 10, 2019), at 4-5. New Rule 32 thus encompasses the rules applicable to a defendant's right to seek post-conviction relief when the defendant is convicted by trial. New Rule 32 and new Rule 33 apply to “all actions filed on or after January 1, 2020,” and to “all other actions pending on January 1, 2020, except to the extent that the court in an affected action determines that applying the rule or amendment would be infeasible or work an injustice, in which event the former rule or procedure applies.” Arizona Supreme Court Order No. R-19-0012.
Arizona courts have consistently applied Arizona's procedural rules to bar further review of claims that were not properly raised on direct appeal or in prior Rule 32 postconviction proceedings. See, e.g., Stewart, 536 U.S. at 860 (determinations made under Arizona's procedural default rule are “independent” of federal law); Smith v. Stewart, 241 F.3d 1191, 1195 n.2 (9th Cir. 2000) (“We have held that Arizona's procedural default rule is regularly followed [or “adequate”] in several cases.”) (citations omitted), rev'd on other grounds, Stewart, 536 U.S. 856; State v. Mata, 185 Ariz. 319, 334-36, 916 P.2d 1035, 1050-52 (Ariz. 1996) (waiver and preclusion rules strictly applied in post-conviction proceedings). A petitioner who fails to follow a state's procedural requirements for presenting a valid claim deprives the state court of an opportunity to address the claim in much the same manner as a petitioner who completely fails to attempt to exhaust his state remedies.
The Court may review a procedurally defaulted claim if the petitioner can demonstrate either: (1) cause for the default and actual prejudice to excuse the default, or (2) a miscarriage of justice/actual innocence. 28 U.S.C. § 2254(c)(2)(B); Schlup v. Delo, 513 U.S. 298, 321 (1995); Coleman, 501 U.S. at 750; Murray v. Carrier, 477 U.S. 478, 495-96 (1986). “Cause” is something that “cannot be fairly attributable” to a petitioner, and a petitioner must show that this “objective factor external to the defense impeded [his] efforts to comply with the State's procedural rule.” Coleman, 501 U.S. at 753 (citation and internal quotation marks omitted). To establish prejudice a “habeas petitioner must show ‘not merely that the errors at ... 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.'” Murray, 477 U.S. at 494 (quoting United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original)). “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.” Id.
The miscarriage of justice exception to procedural default “is limited to those extraordinary cases where the petitioner asserts his [actual] innocence and establishes that the court cannot have confidence in the contrary finding of guilt.” Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir. 2008) (emphasis in original). To pass through the actual innocence/Schlup gateway, a petitioner must establish his or her factual innocence of the crime and not mere legal insufficiency. See Bousley v. U.S., 523 U.S. 614, 623 (1998); Jaramillo v. Stewart, 340 F.3d 877, 882-83 (9th Cir. 2003). Significantly, “[t]o be credible, [a claim of actual innocence] 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.” Schlup, 513 U.S. at 324. See also Lee v. Lampert, 653 F.3d 929, 945 (9th Cir. 2011); McQuiggin v. Perkins, 569 U.S. 383, 399 (2013) (explaining the significance of an “[u]nexplained delay in presenting new evidence”). A petitioner “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” McQuiggin, 569 U.S. at 399 (quoting Schlup, 513 U.S. at 327)). Because of “the rarity of such evidence, in virtually every case, the allegation of actual innocence has been summarily rejected.” Shumway v. Payne, 223 F.3d 982, 990 (9th Cir. 2000) (citing Calderon v. Thompson, 523 U.S. 538, 559 (1998)).
IV. PROCEDURAL DEFAULT ANALYSIS
A. Petitioner's Unexhausted Claims
In their Limited Answer, Respondents argue that Petitioner has not exhausted and therefore has procedurally defaulted Grounds 1 and 2 of the Petition. (Doc. 10 at 7-9)
1. Ground 1 is unexhausted
In Ground 1 of his habeas Petition, Petitioner alleges that the trial court refused to instruct the jury on the defensive display of a firearm. (Doc. 1 at 6) Petitioner argues that he was denied due process because the jury instruction was not given; the jury never saw the whole video of the events leading to Petitioner's charges; an officer involved was “under investigation for criminal wrong doing”; and the county attorney wrongfully told the grand jury that Petitioner was a prohibited possessor, leading to an indictment, yet the county attorney dropped the prohibited possessor charge at Petitioner's arraignment hearing. (Id.)
In his direct appeal of his convictions and sentences to the Arizona Court of Appeals, Petitioner argued that the trial court improperly refused to instruct the jury on the defensive display of a firearm, but Petitioner did not allege a federal legal basis for this claim. (Doc. 10-1 at 18-30) In addition, Petitioner did not allege a federal legal basis for this claim in his petition for review in the Arizona Supreme Court. (Id. at 53) Petitioner did not present any issues for review in his PCR proceedings. Fair presentment of a claim to the state courts for purposes of exhaustion requires presentation of the factual and federal legal basis for the claim, McFadden, 399 F.3d at 999, and a federal habeas court may only grant relief on a claim that alleges a petitioner “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Because Petitioner did not fairly present a federal legal basis for his Ground 1 claim to the Arizona state courts, Petitioner's Ground 1 claim was not properly exhausted for purposes of federal habeas review.
2. Ground 2 is unexhausted
In Ground 2 of his habeas Petition, Petitioner alleges that his due process rights were violated. (Doc. 1 at 7) Specifically, Petitioner argues that the police lied; that a civilian aide at the police department refused to lie under oath and stopped volunteering for the police department; that the prosecutor told the jury that Petitioner's state of mind did not matter in closing argument; and that the prosecutor withheld evidence, including a witness statement from the volunteer aide at the police department. (Id.)
In his direct appeal of his convictions and sentences to the Arizona Court of Appeals, Petitioner did not present a claim alleging a violation of due process. (Doc. 10-1 at 8-30) Although Petitioner presented “Due Process Violation” as an issue for review in his petition for review of his convictions in the Arizona Supreme Court, Petitioner did not support this claim with a factual or federal legal basis. (Id. at 53-54) Further, Petitioner could not fairly present his Ground 2 claim by raising it for the first time in a discretionary petition for review to the Arizona Supreme Court. See Casey, 386 F.3d at 918. Petitioner did not present any issues for review in PCR proceedings. Petitioner therefore did not fairly present his Ground 2 claim to the Arizona state courts, and Petitioner did not properly exhaust his Ground 2 claim for purposes of federal habeas review. See McFadden, 399 F.3d at 999; 28 U.S.C. § 2254(a).
B. Grounds 1 and 2 are procedurally defaulted
Petitioner's Grounds 1 and 2 claims are unexhausted, as discussed above. These grounds are also implicitly procedurally defaulted because it is too late under Arizona procedure for Petitioner to return to state court to assert such claims. See Ariz. R. Crim. P. 32.2(a)(3) (a defendant is precluded from relief pursuant to Rule 32.1(a) that was waived in a previous PCR petition); Ariz. R. Crim. P. 32.4(b)(3)(A) (claims filed pursuant to Rule 32.1(a) must be filed within 30 days after the mandate is issued in a direct appeal); Ariz. R. Crim. P. 32.1(b)-(h), 32.2(b)(1), 32.4(b)(3)(B) (allowing a defendant to assert claims identified in Rule 32.1(b) through (h) “within a reasonable time after discovering the basis for the claim.”) Arizona Rule of Criminal Procedure 32.1(b) through (h) identifies grounds for PCR relief where: (b) the court lacked “subject matter jurisdiction to render a judgment or to impose a sentence on the defendant”; (c) the sentence was not “authorized by law”; (d) the defendant is or will be in custody after his sentence has expired; (e) “newly-discovered material facts probably exist” and such facts “probably would have changed the judgment or sentence”; (f) the failure to file a timely notice of PCR was not the defendant's fault; (g) “there has been a significant change in the law that, if applicable to the defendant's case, would probably overturn the defendant's judgment or sentence”; and (h) “the defendant demonstrates by clear and convincing evidence that the facts underlying the claim would be sufficient to establish that no reasonable fact-finder would find the defendant guilty of the offense beyond a reasonable doubt[.]” Ariz. R. Crim. P. 32.1(b)-(h). Petitioner does not argue he is able to return to state court to present these unexhausted claims, and the record does not support such an argument.
Arizona Rule of Criminal Procedure 32.2(a)(3) provides that PCR relief is precluded on any claim “waived at trial or on appeal, or in any previous post-conviction proceeding, except when the claim raises a violation of a constitutional right that can only be waived knowingly, voluntarily, and personally by the defendant.” (emphasis supplied). The italicized language was added to the rule in January 2020, but even under the prior rule, Arizona courts limited an exception to preclusion only in circumstances where “an asserted claim is of sufficient constitutional magnitude.” Stewart v. Smith, 202 Ariz. 446, 449, 46 P.3d 1067, 1070 (2002). The Arizona Supreme Court has instructed that examples encompassed by this phrase include the right to counsel, the right to a jury trial, and the right to a twelve-person jury. See id. Petitioner has not shown that any of his procedurally defaulted claims at issue in this matter allege a violation of a constitutional right that can only be waived knowingly, voluntarily, and personally by a defendant.
C. Petitioner fails to establish cause and prejudice or miscarriage of justice/actual innocence to excuse the procedural default of Grounds 1 and 2
To excuse the procedural default of Grounds 1 and 2, Petitioner bears the burden of establishing either: (1) both cause and actual prejudice; or (2) a miscarriage of justice/actual innocence. Coleman, 501 U.S. at 750. Petitioner does not argue that his procedural default of Grounds 1 and 2 may be excused for cause and actual prejudice or by a showing of actual innocence, nor does the record before the Court support such findings. Further, Petitioner does not establish that failure to consider his claims would result in a fundamental miscarriage of justice. Petitioner does not “support his allegations of constitutional error with new reliable evidence,” Schlup, 513 U.S. at 324, or “show it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence[,]” McQuiggin, 569 U.S. at 399. Accordingly, for the reasons discussed above, Petitioner's Grounds 1 and 2 claims are procedurally defaulted without excuse.
V. CONCLUSION
For the reasons set forth above, Petitioner procedurally defaulted Grounds 1 and 2 without excuse. It is therefore recommended that Grounds 1 and 2 be dismissed with prejudice.
Assuming the recommendations herein are followed in the District Judge's judgment, certificate of appealability should be denied because dismissal is justified by a plain procedural bar and reasonable jurists would not find the procedural ruling debatable. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
IT IS THEREFORE RECOMMENDED that Roger Perry Riester's Petition Under 28 U.S.C. § 2254 For a Writ of Habeas Corpus by a Person in State Custody (NonDeath Penalty) (Doc. 1) be dismissed with prejudice.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability be denied.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to 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 shall have fourteen days within which to file responses to any objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determination of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.