Opinion
No. Civ. 04-2489-PHX-NVW (MS).
December 15, 2005
ORDER
TO THE HONORABLE NEIL V. WAKE, UNITED STATES DISTRICT JUDGE:
On November 9, 2004, while confined at the Arizona State Prison Complex-Eyman in Florence Arizona, Petitioner filed a Petition for Writ of Habeas pursuant to 28 U.S.C. § 2254 in this Court. [Doc. 1]. Petitioner filed an Amended Petition on December 23, 2004. [Doc. 4]. Petitioner asserted four grounds for relief, alleging violations of his Fifth, Sixth, Eighth, and Fourteenth Amendment rights. [Id.; see also Doc. 5]. Respondents oppose the Petition on grounds that Petitioner's claims are "technically exhausted" but procedurally defaulted. [Doc. 16]. Petitioner filed a Reply on September 9, 2005. [Doc. 25]. The Court now reports and recommends as follows:
I. Background
On November 1, 1994, Petitioner was charged in state court with: furnishing obscene items to a minor (Counts 1 and 2); public sexual indecency to a minor (Count 3); and sexual conduct with a minor (Counts 4 and 5). [Doc. 17, Exh. A]. Pursuant to a plea agreement, Petitioner pled no contest to counts 1 and 4. [Id. at Exh. D]. The remaining charges were dismissed. [Id.].
Petitioner was sentenced on March 20, 1996. [Id. at Exh. E]. On Count 1, Petitioner was sentenced to a presumptive term of 2.5 years imprisonment, and was ordered to "serve 1 day for every 7 days under the supervision of the Community Supervision Program, to be served consecutive to the actual period of imprisonment." [Id.]. On Count 4, Defendant received lifetime probation and a suspended sentence. [Id.]. Petitioner did not file a direct appeal or a post-conviction relief petition following the imposition of his original sentence. [See Id. at Exh. M (indicating that no prior appeal or Rule 32 petition had been filed)].
The State petitioned the Maricopa County Superior Court to revoke Petitioner's life-time probation on three occasions between 1999 and 2002. [Exhs. H, Q, T]. On December 7, 1999, the State alleged that defendant violated the terms of his probation by twice residing with a child under the age of eighteen without prior permission of his adult probation officer. [Exh. H]. On December 9, 1999, Petitioner admitted the allegations during a disposition hearing. [Exh. I]. On January 5, 2000, the Court reinstated Petitioner's lifetime probation. [Exhs. K, L]. On February 10, 2000, Petitioner filed a Notice of Post-conviction Relief relating to the January 5, 2000 disposition. [Exh. M]. Subsequently, Petitioner's counsel filed a Notice of Post-Conviction Review, indicating that he was unable to find any claims to raise on Petitioner's behalf in post-conviction proceedings. [Exh. N]. Counsel requested that Petitioner be granted an additional thirty days to file a pro per petition. [Id.]. Counsel's request was granted. [Exh. O]. When no pro per petition was forthcoming, the court summarily dismissed the matter pursuant to Rule 32.6 of the Arizona Rules of Criminal Procedure. [Exh. P].
The language was subsequently modified in court to reflect that Petitioner "had contact with," rather than "resided with," a child under the age of 18. [Doc. 17, Exh. I at 13-14]. Petitioner admitted to the allegations as modified. [Id. at 14-15].
Rule 32.6(c) provides as follows:
c. Summary Disposition. The court shall review the petition within twenty days after the defendant's reply was due. On reviewing the petition, response, reply, files and records, and disregarding defects of form, the court shall identify all claims that are procedurally precluded under this rule. If the court, after identifying all precluded claims, determines that no remaining claim presents a material issue of fact or law which would entitle the defendant to relief under this rule and that no purpose would be served by any further proceedings, the court shall order the petition dismissed. If the court does not dismiss the petition, the court shall set a hearing within thirty days on those claims that present a material issue of fact or law. If a hearing is ordered, the state shall notify the victims, upon the victims' request pursuant to statute or court rule relating to victims' rights, of the time and place of the hearing.
Ariz. R. Crim. P. 32.6.
The State petitioned the Maricopa County Superior Court to revoke Petitioner's life-time probation a second time on August 18, 2000. [Exh. Q]. The petition alleged that Petitioner failed to report to an authorized location on his weekly schedule and that he failed to pay all wages or endorse all payroll to the probation team. [Id.]. On January 9, 2001, the court found that the State had met its burden with regard to the first allegation, but not the second. [Exh. R]. Accordingly, the State's second allegation was dismissed. [Id.]. A disposition hearing on the remaining allegation was held on February 13, 2001, resulting in reinstatement of Petitioner's probation. [Exh. S]. No further action was taken with regard to this disposition.
A third revocation petition was filed by the State on August 9, 2002. [Exh. T]. The petition, which alleged various probation violations, resulted in the revocation of Petitioner's probation and the imposition of a ten year sentence on January 24, 2003. [Exhs. U, V, W, X]. On March 11, 2003, Petitioner filed a Notice of Post-Conviction Relief relating to the January 24th sentence. [Exh. Y]. On October 6, 2003, counsel filed a Notice of Post-Conviction Review indicating that he found no claims to raise on Petitioner's behalf in post-conviction proceedings and requesting that Petitioner be granted additional time to file a pro per petition. [Exh. Z.]. Counsel's request was granted on October 23, 2003. [Exh. AA]. Petitioner requested an additional 45 day extension to file a pro per petition on October 31, 2003, which was granted by the trial court on November 20, 2003. [Exhs. BB, CC]. The post-conviction proceedings were dismissed on February 2, 2004 as a result of Petitioner's failure to file a petition within the time allowed. [Exh. DD].
On October 31, 2004, Petitioner filed a "Motion to Correct Clerical Mistakes" in the Maricopa County Superior Court pursuant to Rule 24.4 of the Arizona Rules of Criminal Procedure, alleging sentencing errors. [Exh. FF]. The trial court denied the motion on November 22, 2004. [Exh. GG]. Petitioner took no further action in state court.
On November 9, 2004, Petitioner filed his petition for writ of habeas corpus in this Court. [Doc. 1]. He filed an amended petition on December 23, 2004. [Doc. 4]. In his amended petition he raises four grounds: (1) that several of his attorneys rendered ineffective assistance of counsel in violation of the Sixth Amendment of the United States Constitution, (2) that his constitutional right to due process and Rule 11 of the Federal Rules of Criminal Procedure were violated by his attorneys and the court, (3) that he received an illegal sentence, in violation of the Fifth Amendment of the United States Constitution, and (4) that his sentence amounts to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. [Id.]. Respondents oppose the petition on grounds that Petitioner's claims are "technically exhausted" but procedurally defaulted. [Doc. 16]
II. Legal Standards
A. Standard of Review
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), this Court shall not grant a petition for writ of habeas corpus with respect to any claim adjudicated on the merits in state court unless (1) the decision by the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or (2) the decision by the state court was based on an unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d). A state court decision is "contrary to clearly established precedent" if the state court applies a rule that contradicts the governing law set forth by the Supreme Court or arrives at a different result than the Supreme Court in a case involving facts that are materially indistinguishable from a Supreme Court case. See Lockyer v. Andrade, 538 U.S. 63, 73 (2003). "Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 75 (quoting Williams v. Taylor, 529 U.S. 362, 406, 413 (2000)).
State court rulings and factual findings are presumed to be correct when they are supported by the record. See 28 U.S.C. § 2254(e)(1). Petitioners "have the burden of rebutting the presumption of correctness by clear and convincing evidence."Id. When the state court summarily denies relief without providing rationale, this Court "review[s] the record to determine whether the state court's decision contravened, or unreasonably applied, clearly established law." Wilson v. Czerniak, 355 F.3d 1151, 1153-54 (9th Cir. 2004) (citingDelgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000)).See also Luna v. Cambra, 306 F.3d 954, 960 (9th Cir. 2002), amended at 311 F.3d 928 (9th Cir. 2002). In such cases, this Court does not independently decide the contested legal question, but instead determines whether § 2254(d) mandates reversal of the state court decision. Greene v. Lambert, 288 F.3d 1081, 1089 (9th Cir. 2002); Delgado, 223 F.3d at 982.
B. Exhaustion and Procedural Default
No writ may be granted unless it appears that the applicant has exhausted the remedies available in state courts. 28 U.S.C. § 2254(b)(1)(A). Under the exhaustion doctrine, a petitioner must present his claims to the state courts on direct appeal or through collateral proceedings before a federal court will consider a habeas corpus petition. Rose v. Lundy, 455 U.S. 509 (1982); Lindquist v. Gardner, 770 F.2d 876, 877 (9th Cir. 1985). Specifically, exhaustion requires that a petitioner either fairly present his or her claims to the Arizona Court of Appeals,Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999) (stating that "except in habeas petitions in capital cases, claims of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them"), or show that no state remedies remain available.Kellotat v. Cupp, 719 F.2d 1027, 1029 (9th Cir. 1983) (citing Batchelor v. Cupp, 693 F.2d 859, 862 (9th Cir. 1982).
A petitioner must fairly present the "substance of federal claims to the state courts in order to give the State the opportunity to pass upon and to correct alleged violations of its prisoners' federal rights." Duncan v. Henry, 513 U.S. 364, 365-66 (1995). See also Baldwin v. Reese, 541 U.S. 27, 124 S.Ct. 1347, 1349 (2004); Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 278 (1971); Casey v. Moore, 386 F.3d 896, 917 (9th Cir. 2004). When a petitioner procedurally defaults his federal claims in state court "pursuant to an independent and adequate state rule," federal habeas review of the claims is barred unless the petitioner demonstrates cause for the default and actual prejudice from the alleged violation of federal law, or that failing to review the claims "will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991); Park v. California, 202 F.3d 1146, 1151 (9th Cir. 2000). See also Bennett v. Mueller, 322 F.3d 573, 583 (9th Cir. 2003) (stating that, to be deemed adequate, the state law ground for decision must be well-established and consistently applied"); LaCrosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001) (stating that, to be independent, "the state law basis for the decision must not be interwoven with federal law").
"`Cause' is a legitimate excuse for the default; `prejudice' is actual harm resulting from the alleged constitutional violation."Magby v. Wawrzaszek, 741 F.2d 240, 244 (9th Cir. 1984). If the petitioner fails to establish cause for his procedural default, the court need not consider whether petitioner has shown actual prejudice resulting from the constitutional violations.Smith v. Murray, 477 U.S. 527, 533 (1986). To show a fundamental miscarriage of justice, a petitioner must make the extraordinary showing that the alleged constitutional violation probably resulted in the conviction of an innocent person.Schlup v. Delo, 513 U.S. 298, 321 (1995); Murray, 477 U.S. at 496. The circumstances constituting a fundamental miscarriage of justice apply in only a "narrow class of cases." Schlup, 513 U.S. at 321. To establish actual innocence, the petitioner must show that considering all the evidence, "it is more likely than not that no reasonable juror would have convicted him." Id. at 327-28.
III. Discussion
In this case, Petitioner admittedly did not file a Petition for Review with the Arizona Court of Appeals. [See Doc. 4]. The record further reflects that Petitioner never filed a Petition for Post-Conviction Relief in the Superior Court. Although Notices of Post-Conviction Relief were filed with respect to the probation revocation dispositions of January 5, 2000 and January 24, 2003, in both instances counsel found no issues to raise. [Exhs. M, N, Y, Z]. In each instance, Petitioner was granted an opportunity to file a pro per Petition for Post-Conviction Relief, but he failed to do so. [Exhs. O, P, AA — DD]. His failure to do so resulted in the dismissal of both Rule 32 proceedings. [Id.]. He did not seek review in the Arizona Court of Appeals.
Because Petitioner's claims were not presented to the Court of Appeals in a procedurally appropriate manner, they were not fairly presented for purposes of exhaustion. See Casey, 386 F.3d at 917. See also Swoopes, 196 F.3d at1010 (9th Cir. 1999) (recognizing that exhaustion requirement is met when Petitioner fairly presents his claim to the Arizona Court of Appeals); Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994) (claims presented through improper procedures are deemed unexhausted); Kellotat, 719 F.2d at 1030 (invocation of abnormal procedure did not amount to fair presentation); Nelson v. Sandritter, 351 F.2d 284, 285 (9th Cir. 1965) ("a petitioner cannot exhaust his state court remedies by petitions or motions addressed to the wrong court").
Moreover, Petitioner's claims are procedurally defaulted. As noted, Rule 32.6(c) of the Arizona Rules of Criminal Procedure provides that summary disposition is appropriate where a reviewing court finds no non-precluded material issues of fact or law entitling the defendant to relief and determines that no purpose would be served by further proceedings. Ariz. R. Crim. P. 32.6. Here, Petitioner's first Notice of Post-Conviction Relief was expressly dismissed pursuant to Rule 32.6. Petitioner's second Notice of Post-Conviction Relief was similarly summarily dismissed. Were Petitioner to return to state court at this juncture and attempt to assert his claims, the claims would be untimely. See Ariz.R.Crim.P 32.4(c)(2) (providing that in Rule 32 proceedings where counsel finds no colorable claims to be raised on a petitioner's behalf, petitioner shall be granted a 45 day extension; additional extensions shall be granted upon a showing of extraordinary circumstances). See also Beaty v. Stewart, 303 F.3d 975, 988 (9th Cir. 2002) (finding procedural default where Petitioner failed to comply with Ariz. R. Crim. P. 32.6); State v. Carriger, 692 P.2d 991, 995 (Ariz. 1984) (en banc) (observing that petitioners must strictly comply with Rule 32 or be denied relief). Because Petitioner cannot return to state court to properly exhaust his claims, the claims are now considered "technically exhausted" in that further state law remedies are no longer available to him, and are procedurally defaulted. Petitioner's claims may not be reviewed by this Court absent a showing of cause and prejudice or that a miscarriage of justice has occurred. See Coleman, 501 U.S. at 732; Casey, 386 F.3d at 920; Beaty, 303 F.3d at 987.
Petitioner's claims would also likely be precluded under Ariz.R.Crim.P. 32.2(a)(3) which provides that "[A] defendant shall be precluded from relief under this rule based upon any ground. . . . (3) that has been waived at trial, on appeal, or in any previous collateral proceeding." In Cassett v. Stewart, 406 F.3d 614 (9th Cir. 2005), the Ninth Circuit determined that where a Petitioner raises a claim of "sufficient constitutional magnitude to require a knowing, voluntary, and intelligent waiver," and where there is no showing of personal waiver, Rule 32.2(a)(3) does not clearly preclude the claim so as to support a finding of procedural default. Cassett, 406 F.3d at 621. Here, however, Petitioner's claims do not appear to be of sufficient constitutional magnitude to require a personal knowing, voluntary and intelligent waiver. Cassett, 406 F.3d at 622; see also Ariz.R.Crim.P. 32.2(a)(3) cmt. (noting that most claims of trial error do not require a personal waiver); Stewart v. Smith, 46 P.2d 1067, 1070 (Ariz. 2002) (identifying the types of claims that require personal waiver).
The Court further notes that Petitioner's habeas corpus petition includes claims that relate to his initial no contest plea and the sentence imposed in 1996. Any attempt to return to state court to commence post-conviction relief proceedings with respect to these claims would be untimely. See Ariz. R. Crim. P. 32.4(a).
A. Cause and Prejudice
As cause for his procedural default, Petitioner asserts that he was forced to proceed pro per, despite a lack of legal knowledge, when his counsel failed to present any issues to the court. [Doc. 25]. He further asserts that he was not given sufficient time to file on his own behalf, and maintains that the legal materials to which he had access in prison were inadequate. [Id.]. Finally, Petitioner maintains that his counsel was ineffective. [Id.].
Neither Petitioner's pro se status or his lack of legal knowledge is adequate to establish cause to excuse his procedural default. See Boyd v. Thompson, 147 F.3d 1124, 1126-27 (9th Cir. 1998); Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 909 (9th Cir. 1986); see also Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988). Moreover, Petitioner was granted time to file a pro per Petition in accordance with the Arizona Rules of Criminal Procedure. Petitioner's unfamiliarity with the applicable law is not an external objective factor that would excuse his failure to comply with well-established rules. Boyd, 147 F.3d at 1126-27;Hughes, 800 F.2d at 909.
Similarly, although prisoners have a right of access to "adequate law libraries or adequate assistance from persons trained in the law," the United States Supreme Court has said that the right of access to a law library is neither "abstract" nor "freestanding." Lewis v. Casey, 518 U.S. 343, 356 (1996);Bounds v. Smith, 430 U.S. 817, 828 (1977). Rather, to establish a constitutional violation based on inadequate access to legal assistance, an inmate must show:
"that an actionable claim . . . which he desired to bring has been lost or rejected, or that the presentation of such a claim is currently being prevented, because this capability of filing suit has not been provided . . ."Lewis, 518 U.S. 343, 355 (1996) (quoting Bounds, 430 U.S. at 828). Petitioner admits that his failure to file a timely Petition did not result from an impediment to filing a legal claim, but from his lack of legal knowledge. Thus, he has not shown that "alleged shortcomings in library or legal assistance program hindered his efforts to pursue a legal claim" as is required by Lewis. Lewis, 518 U.S. at 351. As stated previously, Petitioner's ignorance of the law does not constitute cause to excuse his procedural default. Boyd, 147 F.3d at 1126-27; Hughes, 800 F.2d at 909; Tacho, 862 F.2d at 1381.
Lastly, cause and prejudice are not established by Petitioner's assertion that his post-conviction counsel should have further investigated his claims and raised issues on Petitioner's behalf. Although constitutionally ineffective assistance of counsel may sometimes constitute cause for a procedural default, "the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default. Murray, 477 U.S. at 486. Ordinarily, a prisoner must establish that counsel's assistance was so ineffective that it fell below constitutional standards or show that an objective factor external to the defense impeded counsel's ability to comply with the state procedural rule. Id. The record does not support such a conclusion here. Moreover, the exhaustion doctrine "generally requires that a claim of ineffective assistance be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default." Murray, 477 U.S. at 488-89. Here, Petitioner did not pursue an independent ineffective assistance of counsel claim in state court.
For the foregoing reasons, Petitioner has not established cause and prejudice sufficient to excuse his procedural default. See Murray, 477 U.S. 488 (explaining requirement of "cause");Thomas v. Lewis, 945 F.2d 1119, 1123 n. 10 (9th Cir. 1991) (lack of cause eliminates need to discuss actual prejudice).
B. Miscarriage of Justice
Petitioner's allusions to a miscarriage of justice are equally unavailing. Petitioner suggests that he learned on the day of sentencing that his ex-wife was unwilling to assist prosecutors with his case. He claims that he might not have been convicted at trial without her testimony because the testimony was crucial to the prosecution's case. However, the fact that Petitioner possibly could have succeeded at trial does not bring his case within the "narrow class of cases" warranting extraordinary relief based on actual innocence. Schlup, 513 U.S. at 321;Murray, 477 U.S. at 496. Petitioner's procedurally defaulted claims are barred from consideration on habeas.
Petitioner's argument that his Motion to Correct Clerical Mistakes should have been construed as a Rule 32 Petition does not require a different result. Even if Petitioner is correct that the Superior Court could have converted his motion to a post-conviction relief petition, the Court was not obligated to do so. Petitioner was given an opportunity to file an appropriate petition but did not do so. Further, the Court reviewed and denied Petitioner's motion. Petitioner has not shown that a miscarriage of justice resulted from the denial of his motion.
Petitioner's claims are exhausted (albeit not in the manner required by law), but are procedurally defaulted. Because no cause and prejudice or miscarriage of justice has been shown, it is recommended that Petitioner's habeas corpus petition be denied.
IV. RECOMMENDATION AND CONCLUSION
Based on the foregoing, the court recommends that Petitioner's Amended Petition for Writ of Habeas Corpus [Doc. #4] be denied and dismissed with prejudice.
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. The parties shall have ten (10) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. 28 U.S.C. § 636(b)(1) and Rules 72, 6(a) and 6(e) of the Federal Rules of Civil Procedure. Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the factual issues 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 Magistrate Judge's recommendation.