Opinion
CV-21-08083-PCT-SRB (ESW)
08-27-2021
Jon Jeffery Shoemaker, Petitioner, v. David Shinn, et al., Respondents.
TO THE HONORABLE SUSAN R. BOLTON, SENIOR UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
Honorable Eileen S. Willett, United States Magistrate Judge.
Pending before the Court is Jon Jeffery Shoemaker's (“Petitioner”) Petition for a Writ of Habeas Corpus (the “Petition”) (Doc. 1). After reviewing the parties' briefing (Docs. 1, 9), the undersigned finds that Petitioner's habeas claim is procedurally defaulted without excuse. It is therefore recommended that the Petition (Doc. 1) be dismissed with prejudice.
I. BACKGROUND
In April 2019, Petitioner pled guilty in the Superior Court of Arizona in and for Yavapai County to the following counts: (i) sale or transportation of dangerous drugs (Count One); (ii) possession of methamphetamine drug paraphernalia (Count Two); (iii) sale or transportation of narcotic drugs (Count Three); (iv) possession of drug paraphernalia (Count Four); and (v) tampering with physical evidence (Count Five). (Doc. 9-1 at 40). The trial court accepted Petitioner's guilty pleas, determined that Petitioner had two historical prior felonies as to Counts Two through Five, and sentenced Petitioner to a total of twelve years in prison. (Id. at 59-63).
On June 5, 2019, Petitioner filed a Notice of Post-Conviction Relief (“PCR”). (Id. at 65-67). Petitioner's counsel could not find a colorable claim to raise. (Id. at 69-74). On December 11, 2019, Petitioner filed a pro se PCR Petition. (Id. at 84-94). The trial court dismissed the PCR Petition on March 2, 2020. (Doc. 9-2 at 12). Petitioner sought further review by the Arizona Court of Appeals, which denied relief. (Id. at 54-58). On April 13, 2021, the Arizona Supreme Court denied Petitioner's Petition for Review. (Id. at 62).
Petitioner timely initiated this federal habeas proceeding on April 23, 2021. (Doc. 1). The Petition raises two grounds for relief. In its Screening Order, the Court dismissed Ground One as it only alleged a violation of Arizona state law. (Doc. 6 at 2). The Court ordered Respondents to answer Ground Two. (Id.). Respondents filed a Limited Answer (Doc. 9) on June 21, 2021. Petitioner did not file a Reply, and the time to do so has passed.
II. LEGAL STANDARDS
A. Exhaustion-of-State-Remedies Doctrine
It is well-settled that a “state prisoner must normally exhaust available state remedies before a writ of habeas corpus can be granted by the federal courts.” Duckworth v. Serrano, 454 U.S. 1, 3 (1981); see also Picard v. Connor, 404 U.S. 270, 275 (1971) (“It has been settled since Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886), that a state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for habeas corpus.”). The rationale for the doctrine relates to the policy of federal-state comity. Picard, 404 U.S. at 275 (1971). The comity policy is designed to give a state the initial opportunity to review and correct alleged federal rights violations of its state prisoners. Id. In the U.S.
Supreme Court's words, “it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation.” Darr v. Burford, 339 U.S. 200, 204 (1950); see also Reed v. Ross, 468 U.S. 1, 11 (1984) (“[W]e have long recognized that in some circumstances considerations of comity and concerns for the orderly administration of criminal justice require a federal court to forgo the exercise of its habeas corpus power.”) (citations and internal quotation marks omitted).
The exhaustion doctrine is codified at 28 U.S.C. § 2254. That statute provides that a habeas petition may not be granted unless the petitioner has (i) “exhausted” the available state court remedies; (ii) shown that there is an “absence of available State corrective process”; or (iii) shown that “circumstances exist that render such process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1).
Case law has clarified that in order to “exhaust” state court remedies, a petitioner's federal claims must have been “fully and fairly presented” in state court. Woods v. Sinclair, 764 F.3d 1109, 1129 (9th Cir. 2014). To “fully and fairly present” a federal claim, a petitioner must present both (i) the operative facts and (ii) the federal legal theory on which his or her claim is based. This test turns on whether a petitioner “explicitly alerted” a state court that he or she was making a federal constitutional claim. Galvan v. Alaska Department of Corrections, 397 F.3d 1198, 1204-05 (9th Cir. 2005). “It is not enough 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) (citation omitted); see also Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), as modified by 247 F.3d 904 (9th Cir. 2001) (federal basis of a claim must be “explicit either by citing federal law or the decisions of federal courts, even if the federal basis is self-evident or the underlying claim would be decided under state law on the same considerations that would control resolution of the claim on federal grounds”).
B. Procedural Default Doctrine
If a claim was presented in state court, and the court expressly invoked a state procedural rule in denying relief, then the claim is procedurally defaulted in a federal habeas proceeding. See, e.g., Zichko v. Idaho, 247 F.3d 1015, 1021 (9th Cir. 2001). Even if a claim was not presented in state court, a claim may be procedurally defaulted in a federal habeas proceeding if the claim would now be barred in state court under the state's procedural rules. See, e.g., Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002).
Similar to the rationale of the exhaustion doctrine, the procedural default doctrine is rooted in the general principle that federal courts will not disturb state court judgments based on adequate and independent state grounds. Dretke v. Haley, 541 U.S. 386, 392 (2004). A habeas petitioner who has failed to meet the state's procedural requirements for presenting his or her federal claims has deprived the state courts of an opportunity to address those claims in the first instance. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991).
As alluded to above, a procedural default determination requires a finding that the relevant state procedural rule is an adequate and independent rule. See id. at 729-30. An adequate and independent state rule is clear, consistently applied, and well-established at the time of a petitioner's purported default. Greenway v. Schriro, 653 F.3d 790, 797-98 (9th Cir. 2011); see also Calderon v. U.S. Dist. Court (Hayes), 103 F.3d 72, 74-75 (9th Cir. 1996). An independent state rule cannot be interwoven with federal law. See Ake v. Oklahoma, 470 U.S. 68, 75 (1985). The ultimate burden of proving the adequacy of a state procedural bar is on the state. Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003). If the state meets its burden, a petitioner may overcome a procedural default by proving one of two exceptions.
In the first exception, the petitioner must show cause for the default and actual prejudice as a result of the alleged violation of federal law. Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014). To demonstrate “cause, ” a petitioner must show that some objective factor external to the petitioner impeded his or her efforts to comply with the state's procedural rules. See Murray v. Carrier, 477 U.S. 478, 488 (1986); Robinson v. Ignacio, 360 F.3d 1044, 1052 (9th Cir. 2004). To demonstrate “prejudice, ” the petitioner must show that the alleged constitutional violation “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982); see also Carrier, 477 U.S. at 494 (“Such a showing of pervasive actual prejudice can hardly be thought to constitute anything other than a showing that the prisoner was denied ‘fundamental fairness' at trial.”).
In the second exception, a petitioner must show that the failure to consider the federal claim will result in a fundamental miscarriage of justice. Hurles, 752 F.3d at 780. This exception is rare and only applied in extraordinary cases. Wood v. Ryan, 693 F.3d 1104, 1118 (9th Cir. 2012) (quoting Schlup v. Delo, 513 U.S. 298, 321 (1995)). The exception occurs where a “constitutional violation has probably resulted in the conviction of one who is actually innocent of the offense that is the subject of the barred claim.” Wood, 693 F.3d at 1117 (quoting Schlup, 513 U.S. at 327).
III. DISCUSSION
A. Petitioner's Habeas Claim is Procedurally Defaulted
As mentioned, the Court's Screening Order dismissed Ground One of the Petition. (Doc. 6 at 2). Ground Two of the Petition asserts that the trial court improperly counted two convictions from the State of California as separate offenses, thereby “pushing Petitioner into a higher sentencing bracket.” (Doc. 1 at 8). Petitioner asserts that the sentence imposed by the trial court “constituted improper double-counting” in violation of the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution. (Id.).
Respondents correctly assert (Doc. 9 at 12) that Petitioner failed to fairly present Ground Two as a question of federal law in his PCR Petition. In arguing that the trial court improperly calculated Petitioner's historical prior convictions, Petitioner cited only to Arizona state law. (Doc. 9-1 at 89-90). The undersigned finds that Ground Two is unexhausted. Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996) (“If a petitioner fails to alert the state court to the fact that he is raising a federal constitutional claim, his federal claim is unexhausted regardless of its similarity to the issues raised in state court.”); Gatlin v. Madding, 189 F.3d 882 (9th Cir. 1999) (holding that petitioner failed to “fairly present” federal claim to state courts where he failed to identify the federal legal basis for his claim); Hiivala v. Wood, 195 F.3d 1098 (9th Cir. 1999) (holding that petitioner failed to exhaust federal due process issue in state court because petitioner presented claim in state court only on state grounds).
In his Petition for Review filed in the Arizona Court of Appeals, Petitioner cited cases from the Fourth, Seventh, and Ninth Circuit Courts of Appeals that pertained to the federal Sentencing Guidelines, not the Double Jeopardy Clause. (Doc. 9-2 at 19).
If Petitioner returned to state court and presented Ground Two in another PCR Petition, the PCR Petition would be untimely and successive under adequate and independent state procedural rules. See Ariz. R. Crim. P. 33.2(a)(3) and 33.4(b)(3). A state post-conviction action is futile where it is time-barred. See Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002); Moreno v. Gonzalez, 116 F.3d 409, 410 (9th Cir. 1997). The undersigned finds that Petitioner's habeas claims are procedurally defaulted. See Beaty, 303 F.3d at 987 (a claim is procedurally defaulted “if the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the requirement would now find the claims procedurally barred”) (quoting Coleman, 501 U.S. at 735 n.1).
This type of procedural default is often referred to as “technical” exhaustion because although the claim was not actually exhausted in state court, Petitioner no longer has an available state remedy. Coleman, 501 U.S. at 732 (“A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no remedies any longer ‘available' to him.”).
B. Petitioner's Procedural Default is Not Excused
Moreover, a petitioner cannot exhaust a habeas claim by circumventing a state's lower courts and going directly to the state's higher courts. See Casey v. Moore, 386 F.3d 896, 915-18 (9th Cir. 2004) (habeas claim presented by petitioner to state supreme court was unexhausted because the petitioner did not fairly present the claim to the state's court of appeals); Castille v. Peoples, 489 U.S. 346, 351 (1989) (“[W]here the claim has been presented for the first and only time in a procedural context in which its merits will not be considered unless ‘there are special and important reasons therefor, ” . . . . Raising the claim in such a fashion does not, for the relevant purpose, constitute ‘fair presentation.'”); Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994) (“Submitting a new claim . . . in a procedural context in which its merits will not be considered absent special circumstances does not constitute fair presentation.”); Childers v. State of Arizona, No. 05-2010-PHX- ROS, 2006 WL 1543986, *5 (D. Ariz. June 2, 2006) (claim not raised in petitioner's PCR Notice but raised in petition for review filed with the Arizona appellate court was not properly exhausted).
The merits of a habeas petitioner's procedurally defaulted claims are to be reviewed if the petitioner (i) shows cause for the default and actual prejudice as a result of the alleged violation of federal law or (ii) shows that the failure to consider the federal claim will result in a fundamental miscarriage of justice. McKinney v. Ryan, 730 F.3d 903, 913 (9th Cir. 2013).
Petitioner's status as a pro se litigant does not exempt Petitioner from the “cause and prejudice” standard. Hughes v. Idaho State Board of Corrections, 800 F.2d 905, 908 (9th Cir. 1986) (an illiterate pro se petitioner's lack of legal assistance did not amount to cause to excuse a procedural default); Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988) (petitioner's arguments concerning his mental health and reliance upon jailhouse lawyers did not constitute cause). The undersigned finds that Petitioner has failed to establish that his procedural default is “due to an external objective factor that cannot fairly be attributed to him.” Smith, 510 F.3d at 1146 (internal quotation marks and citation omitted). Petitioner has therefore failed to show cause for his procedural default. Where a petitioner fails to establish cause, the Court need not consider whether the petitioner has shown actual prejudice resulting from the alleged constitutional violations. Smith v. Murray, 477 U.S. 527, 533 (1986). Accordingly, the undersigned finds that Petitioner has not satisfied the “cause and prejudice” exception to excuse his procedural default.
To satisfy the fundamental miscarriage of justice exception, Petitioner must show that “a constitutional violation has resulted in the conviction of one who is actually innocent.” Schlup, 513 U.S. at 327. To the extent that Petitioner may assert that he is innocent, Petitioner does not proffer any new reliable evidence to support actual innocence. Schlup, 513 U.S. at 324 (“To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence.”). The undersigned recommends that the Court find that Petitioner cannot pass through the actual innocence/Schlup gateway to excuse his procedural default. See Smith v. Hall, 466 Fed.Appx. 608, 609 (9th Cir. 2012) (explaining that to pass through the Schlup gateway, a petitioner must first satisfy the “threshold requirement of coming forward with ‘new reliable evidence'”); Griffin v. Johnson, 350 F.3d 956, 961 (9th Cir. 2003) (“To meet [the Schlup gateway standard], [petitioner] must first furnish ‘new reliable evidence . . . that was not presented at trial.'”) (quoting Schlup, 513 U.S. at 324). Consequently, the undersigned recommends that the Court dismiss the Petition with prejudice.
IV. CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that the Petition (Doc. 1) be DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that a certificate of appealability and leave to proceed in forma pauperis on appeal be denied because dismissal of the Petition is justified by a plain procedural bar and the undersigned finds that jurists of reason would not find it debatable whether the Court was correct in its procedural ruling.
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this Report & Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed. R. Civ. P. 72.