Opinion
CV-15-0711-PHX-DJH (JFM)
08-11-2022
Bobby Jerry Tatum, Petitioner v. Charles L. Ryan, et al., Respondents.
REPORT & RECOMMENDATION ON STAY OF PETITION
James F. Metcalf United States Magistrate Judge
I. MATTER UNDER CONSIDERATION
Under consideration is the Court's ordered to show cause why a stay pending completion of pending state proceedings should not be entered (Order 6/22/22, Doc. 56), Petitioner's response in opposition to a stay (Doc. 57) and Respondents' response in favor of a stay (Doc. 58).
Because a decision on a stay is at least arguably dispositive, Mitchell v. Valenzuela, 791 F.3d 1166, 1167 (9th Cir. 2015), the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. ORIGINAL STATE PROCEEDINGS
Petitioner was convicted of conspiracy to commit armed robbery, first-degree murder, attempted armed robbery, and aggravated assault. He was sentenced to, inter alia, natural life on the murder charge. (Exh. C, Sentence 11/20/96.) Petitioner filed an unsuccessful direct appeal, raising claims regarding errors in jury selection, sentencing error with respect to aggravating circumstances, and errors in the written sentence. (Exh. F, Mem. Dec. 5/19/98.) Petitioner also filed an unsuccessful post-conviction relief (PCR) proceeding asserting claims of ineffective assistance of PCR counsel. (Exh. K, Order 4/8/02; Exh. L, App. Court Order 8/7/03.)
B. MILLER BASED PROCEEDINGS
In 2013, Petitioner commenced a second PCR proceeding raising a claim under Miller v. Alabama, 567 U.S. 460 (2012) (mandatory life imprisonment without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on cruel and unusual punishments). (Exh. M, PCR Notice.) The proceeding was summarily dismissed by the PCR court as untimely, successive, and without merit because the trial court had adequately considered Petitioner's youth. (Exh. N, M.E. 7/10/13.) Petitioner raised his claims to the Arizona Court of Appeals in a Petition for Review filed August 26, 2013 (Exh. Q). That court granted review but denied relief. (Exh. W, Mem. Dec. 2/18/15.) Petitioner then sought review by the Arizona Supreme Court. The Arizona Supreme Court denied review. (Exhibit X, Order 1/5/16.) And Petitioner eventually filed a Petition for Writ of Certiorari with the U.S. Supreme Court.
In the meantime, Petitioner filed an Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on September 28, 2015, in which he sought relief from his sentence of life without parole on charges of felony murder, on the basis that it was an Eight Amendment violation under Miller because the sentencer did not adequately consider his youth (17 at the time of the offense), and the sentence was effectively mandatory because parole had been abolished by the state. (Doc. 11.)
On Petitioner's motion, the Court granted stays of the habeas proceedings to allow Petitioner to exhaust state remedies (Order 11/2/15, Doc. 17), and then for completion of certiorari review of Petitioner's state post-conviction relief proceedings (Order 11/2/15, Doc. 17). Subsequently, the Supreme Court vacated the decision of the Arizona Court of Appeals, and remanded for consideration under Montgomery v. Louisiana, 577 U.S. 190 (2016) (Miller retroactively applicable on state collateral review). (Exh. Z, Letter 10/31/16). The parties stipulated for a remand to the trial court for resentencing. (Exh. CC, State's Stipulation; Exh. DD Joinder.) Petitioner then moved to dismiss the instant proceeding as moot, which was granted on March 29, 2018 (Docs. 38, 39).
The state reneged on its stipulation, asserting the subsequent decision in Jones v. Mississippi, 141 S.Ct. 1307 (2021) (Miller does not require separate factual finding of incorrigibility) made clarifications showing Petitioner's sentence was not invalid. (Exh. GG, Motion to Withdraw.) The state was allowed to withdraw from the stipulation, and no resentencing occurred. The PCR court reasoned that a sentence with a possibility of “release” was available to it, and in any event the sentencing court had considered Petitioner's youth. (Exh. HH Order 1/18/22.)
Arizona has suffered from confusion between sentences with the possibility for parole and those with the possibility for release. See e.g. State v. Godinez, 2013 WL 3788427, at *4 (Ariz.Ct.App. July 17, 2013) (noting differences, including “release” allows commutation, discretionary with the governor and requiring clear and convincing evidence of excessive sentence, while parole is discretionary with the parole board based on expected good behavior); and Shinn v. LeMaire, 2022 WL 465426 (Ariz.Ct.App. Feb. 15, 2022) (addressing “confusion” between release and parole).
Petitioner filed a notice of appeal to the Arizona Court of Appeals, which was dismissed on the basis that review should be sought by a petition for review. (Exh. JJ, Order 2/9/22.) Petitioner has filed a Petition for Review (Exh. MM) by the Arizona Supreme Court of that ruling. That proceeding remains pending.
In the meantime, Petitioner reopened these proceedings (through appointed counsel) and Respondents were ordered to answer the Petition. (Order 5/10/22, Doc. 49.)
C. ORDER TO SHOW CAUSE RE STAY
Respondents have now filed a Limited Answer (Doc. 55) arguing that Petitioner's state remedies are not exhausted citing his pending petition for review by the Arizona Supreme Court. Respondents suggest a stay of this habeas proceeding pending the resolution of the state court proceedings.
The parties were ordered to show cause why a stay pending completion of the pending state proceedings should not be entered. (Order 6/22/22, Doc. 56.)
Petitioner responded (Doc. 57) arguing a stay is inappropriate: (1) Petitioner exhausted his state remedies in the prior state proceedings leading to the failed stipulation; (2) even if unexhausted, the inhospitality of the state courts to his Miller claim renders such remedies ineffective; and (3) the pending state law claims are not on the merits of his federal claim but on the propriety under state law of allowing the state to renege on its stipulation and whether the proper state forum for review is an appeal or a petition for review.
Respondents have responded (Doc. 58), arguing a stay is appropriate because following remand by the Supreme Court there is no state appellate court judgment on the merits of his Miller claim, and because his 2013 PCR proceedings are still ongoing and thus his state remedies are unexhausted.
Because a decision on a stay is at least arguably dispositive, Mitchell v. Valenzuela, 791 F.3d 1166, 1167 (9th Cir. 2015), the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
III. APPLICATION OF LAW TO FACTS
A. YOUNGER ABSTENTION
Stays of habeas proceedings as a result of pending state proceedings generally arise under two principles: abstention and exhaustion. Because the exhaustion issue requires the Court to prognosticate the effect of a failure to stay, abstention will be addressed first.
In Younger v. Harris, 401 U.S. 37, 43 (1971), the Supreme Court counseled that, except in certain rare circumstances, the federal courts will not enjoin state criminal proceedings. Thus, the Ninth Circuit has held that “[w]hen, as in the present case, an appeal of a state criminal conviction is pending, a would-be habeas corpus petitioner must await the outcome of his appeal before his state remedies are exhausted, even where the issue to be challenged in the writ of habeas corpus has been finally settled in the state courts.” Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983).
Younger v. Harris and its progeny espouse a strong federal policy against federal-court interference with pending state judicial proceedings absent extraordinary circumstances. The policies underlying Younger abstention have been frequently reiterated by this Court. The notion of “comity” includes “a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.” Minimal respect for the state processes, of course, precludes any presumption that the state courts will not safeguard federal constitutional rights.Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 431 (1982) (citations omitted).
However, Younger abstention is generally limited to direct appeals, and does not apply where the ongoing proceeding is a state petition for post-conviction relief. In Butler v. Long, 752 F.3d 1177 (9th Cir. 2014), the district court had dismissed the Petitioner's first federal habeas petition pursuant to Sherwood because a state habeas petition was pending. After conclusion of the state proceeding, the petitioner renewed his federal petition, which was dismissed as untimely. The Ninth Circuit granted equitable tolling on the basis that the dismissal of the original federal petition under Sherwood was erroneous because “there was no direct state appeal pending.” Id. at 1181. See also Smith v. Williams, 2013 WL 1501583, 2 (D.Nev. 2013) (concluding that Henderson v. Johnson, 710 F.3d 872 (9th Cir. 2013) clarified “that the rule [of Sherwood] applies to pending direct appeals, and not to pending state post-conviction proceedings”); and Brian R. Means, When Direct Appeal is Not Yet Final, Postconviction Remedies § 23:18, at text surrounding n. 4 (2017) (citing Butler and Henderson). But see Al Saud v. Ryan, 2015 WL 10097522, at *3 (D. Ariz. Nov. 3, 2015), report and recommendation adopted sub nom. Saud v. Ryan, 2016 WL 614022 (D. Ariz. Feb. 16, 2016) (applying Younger abstention to Arizona of-right PCR proceeding treated as direct appeal).
Here, the pending state proceedings are, at least as cast by the Arizona Court of Appeals, a challenge to the decision in Petitioner's successive post-conviction relief proceedings, and those proceedings were not an of-right PCR proceeding doing service as direct appeal. Consequently, abstention is not required under Younger.
B. EXHAUSTION
1. Exhaustion Requirement
A federal court has authority to review a state prisoner's claims only if available state remedies have been exhausted. Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (per curiam); 28 U.S.C. § 2254(b) and (c). When seeking habeas relief, the burden is on the petitioner to show that he has properly exhausted each claim. Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981).
Ordinarily, to exhaust his state remedies, the petitioner must have fairly presented his federal claims to the state courts. “A petitioner fairly and fully presents a claim to the state court for purposes of satisfying the exhaustion requirement if he presents the claim: (1) to the proper forum, (2) through the proper vehicle, and (3) by providing the proper factual and legal basis for the claim.” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005).
Proper Forum - “In cases not carrying a life sentence or the death penalty, ‘claims of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.'” Castillo v. McFadden, 399 F.3d 993, 998 (9th Cir. 2005)(quoting Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999)). Under the 1989 amendments to the governing state statutes, even cases carrying a life sentence are exhausted once ruled on by the Arizona Court of Appeals. Crowell v. Knowles, 483 F.Supp.2d 925, 933 (D. Ariz. 2007).
Proper Vehicle - Ordinarily, “to exhaust one's state court remedies in Arizona, a petitioner must first raise the claim in a direct appeal or collaterally attack his conviction in a petition for post-conviction relief pursuant to Rule 32.” Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). Only one of these avenues of relief must be exhausted before bringing a habeas petition in federal court. This is true even where alternative avenues of reviewing constitutional issues are still available in state court. Brown v. Easter, 68 F.3d 1209, 1211 (9th Cir. 1995); Turner v. Compoy, 827 F.2d 526, 528 (9th Cir. 1987).
2. Petitioner's State Remedies Not Properly Exhausted
Here, Petitioner was given a life sentence, and thus fair presentation to the Arizona Court of Appeals is sufficient to exhaust his state remedied.
Here, although Petitioner presented his Miller claims to the Arizona Court of Appeals in his 2013 Petition for Review, and that Court had initially addressed Petitioner's claims on the merits, that judgment was vacated. Thus, that review proceeding was ultimately effectively dismissed by the Arizona Court of Appeals upon the parties' stipulation to remand. Therefore, although Petitioner's claim was initially presented to it, the Arizona Court of Appeals ultimately did not have, in that proceeding, a fair chance to issue a final, binding ruling on Petitioner's claims. Petitioner “must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Here, the ball may have bounced through the Arizona Court of Appeal's side, but it was bounced back and then taken out of play before the round was fully over.
Similarly, Petitioner offers nothing to show that his 2022 notice of appeal following remand and dismissal of his PCR petition was a fair presentation of his claims to the Arizona Court of Appeals. That court has ruled it was not, because its jurisdiction over the denial of a PCR petition is properly invoked by a petition for review not a notice of appeal. (Exh. JJ, Order 2/9/22.) "Submitting a new claim to the state's highest court in a procedural context in which its merits will not be considered absent special circumstances does not constitute fair presentation." Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994) (citing Castille v. Peoples, 489 U.S. 346, 351 (1989)). Thus, Petitioner has not yet fairly presented his claims to the Arizona Court of Appeals since that Court's 2018 dismissal of his PCR review proceedings.
3. State Remedies not Ineffective or Unavailable
Petitioner argues that the position of the state courts on his claim has already been demonstrated, and thus there are no effective remedies available to him. (Pet. Response, Doc. 57 at 2.)
It is true that it is only “available” and “effective remedies that must be exhausted. 28 U.S.C. § 2254(b)(1)(B). So, as an alternative to presenting his claims to the state courts, a petitioner can satisfy the exhaustion requirement by demonstrating that no effective state remedies remained available at the time the federal habeas petition was filed. Engle v. Isaac, 456 U.S. 107, 125 (n. 28)(1982); White v. Lewis, 874 F.2d 599, 602 (9th Cir. 1989).
But a state remedy is not rendered ineffective or unavailable simply because the state court may view the claim negatively. “If a defendant perceives a constitutional claim and believes it may find favor in the federal courts, he may not bypass the state courts simply because he thinks they will be unsympathetic to the claim. Even a state court that has previously rejected a constitutional argument may decide, upon reflection, that the contention is valid.” Engle v. Isaac, 456 U.S. 107, 130 (1982).
Moreover, here, the only court that has had the chance to address the merits of Petitioner's current claims, e.g. in light of not only Miller, but also Montgomery and Jones, is the PCR court. While the PCR court may have rejected Petitioner's claim, that does not establish that the Arizona Court of Appeals would not now reach a contrary conclusion.
And, to date, the only opportunity that appellate court has had to address the current claim was in a purportedly improperly filed notice of appeal. But that does not speak to the ineffectiveness or unavailability of the state remedy, but rather the procedural propriety of Petitioner's past efforts to pursue such remedy.
4. No Procedural Default Asserted
Ordinarily, unexhausted claims are dismissed without prejudice. Johnson v. Lewis, 929 F.2d 460, 463 (9th Cir. 1991). However, where a petitioner has failed to properly exhaust his available administrative or judicial remedies, and those remedies are now no longer available because of some procedural bar, the petitioner has "procedurally defaulted" and is generally barred from seeking habeas relief. Dismissal with prejudice of a procedurally defaulted habeas claim is generally proper absent a “miscarriage of justice” which would excuse the default. Reed v. Ross, 468 U.S. 1, 11 (1984).
It may be that Petitioner's state remedies have been technically exhausted by procedural default through his failure to timely and properly seek review by the Arizona Court of Appeals through a petition for review. See Ariz. R. Crim. Proc. 32.9(c) (petitions for review to the Arizona Court of Appeals be filed within thirty days of the trial court's decision on the PCR petition).
But Respondents have not asserted such a procedural default, although they have generically discussed procedural default. (Answer, Doc. 55 at 9.) The undersigned assumes that Respondents' choice is deliberate, e.g. because there is reason to believe that a delinquent petition for review will be authorized by the Arizona Court of Appeals, or the notice of appeal deemed a petition for review by the Arizona Supreme Court, or the Arizona Supreme Court determining that the proceeding was a resentencing (albeit an aborted one) from which an appeal was appropriate. Accordingly, the undersigned has not, at this juncture, raised procedural default sua sponte. See Boyd v. Thompson, 147 F.3d 1124 (9th Cir. 1998) (with opportunity to be heard, procedural default may be raised by court).
5. Stay Appropriate
Ordinarily, a petition containing only unexhausted claims should be dismissed without prejudice. Johnson v. Lewis, 929 F.2d 460, 463 (9th Cir. 1991). However, “a district court has the discretion to stay and hold in abeyance fully unexhausted petitions under the circumstances set forth in Rhines [v. Weber, 544 U.S. 269 (2005)].” Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016).
Because granting a stay effectively excuses a petitioner's failure to present his claims first to the state courts, stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court
Moreover, even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless.Rhines, 544 U.S. at 277. Thus, a stay of such a petition requires good cause for the failure to exhaust, and a finding of some merit.
Here, Petitioner's claim appears to be of some merit. The PCR court's denial of his renewed petition was founded on the conclusion that the court had considered Petitioner's youth. But Petitioner argues that such consideration was meaningless because the state of Arizona had effectively done away with parole, and thus the life sentence without parole was functionally mandatory. (Motion to Reopen, Doc. 47 at 4.)
The undersigned finds good cause for the failure to exhaust given the peculiar posture in which Petitioner found himself, i.e. seeking review in what had been agreed would be a resentencing proceeding (from which an appeal would lie) but had been transformed into a reopened PCR proceeding (from which a petition for review was required).
Moreover, the undersigned finds good cause for the stay. Under the foregoing reasoning, this Court's other option would be to dismiss the petition as unexhausted, risking Petitioner's exposure to a statute of limitations defense if his notice of appeal (which has been pending since February 4, 2022) is ultimately deemed improperly filed.
Moreover, the prejudice to Petitioner of delay should be limited. The delay in the state courts is not predictable given the unique posture of the case. But Petitioner is not disputing his conviction, only his sentence. If relief were to be granted, with revise sentence of life with parole possible after 25 years, Petitioner would be suffering a delay in applying for parole. But such parole application might or might not be granted, and thus this Court can only speculate that any harm would actually occur.
IV. RECOMMENDATION
IT IS THEREFORE RECOMMENDED:
(A) Consideration of Petitioner's Amended Petition for Writ of Habeas Corpus (Doc. 11) be STAYED until completion of Petitioner's pending proceedings before the Arizona
Supreme Court.
(B) Petitioner be required to file a Notice of Status of his state court proceedings within 30 days of the Court's ruling on this Report & Recommendation and every three months thereafter, and within 30 days of any final ruling by the Arizona Supreme Court in such proceeding.
V. EFFECT OF RECOMMENDATION
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), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. However, pursuant to Rule 72(b), Federal Rules of Civil Procedure , the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See also Rule 8(b), Rules Governing Section 2254 Proceedings. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007). In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”