Vasquez v. Shinn

Full title: Gilbert Leon Vasquez, Petitioner, v. David Shinn, et al., Respondents.

Court: United States District Court, District of Arizona

Date published: Jul 7, 2023

CV-22-01478-PHX-SPL (DMF) (D. Ariz. Jul. 7, 2023)

Opinion

CV-22-01478-PHX-SPL (DMF)

07-07-2023

Gilbert Leon Vasquez, Petitioner, v. David Shinn, et al., Respondents.

Honorable Deborah M. Fine United States Magistrate Judge

HONORABLE STEVEN P. LOGAN, 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. 5 at 4)¹

1 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-22-01478-PHX-SPL (DMF).

Petitioner Gilbert Leon Vasquez (“Petitioner”), who is confined in the Arizona State Prison Complex in Florence, 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 August 30, 2022.² (Doc. 1) On November 17, 2022, the Court ordered Respondents to answer the Petition and ordered that “Petitioner may file a reply within 30 days from the date of service of the answer.” (Doc. 5 at 3-4)

2 The Petition was docketed by the Clerk of Court on August 31, 2022. (Doc. 1) The Petition contains a declaration by Petitioner that he placed the Petition in the prison mailing system on August 30, 2022. (Id. at 11) This Report and Recommendation uses August 30, 2022, as the operative filing date. 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.”).

In November 2022, Petitioner wrote and mailed a letter to the Court, which was filed on November 28, 2022. (Doc. 8) The Court struck the letter from the Court's docket as an improper communication with the Court and as an improper filing under applicable rules of procedure (Doc. 9).

On January 26, 2023, Respondents filed their Limited Answer to the Petition. (Doc. 12) The Limited Answer reflects service by mail to Petitioner at Petitioner's mailing address. (Id. at 37) Petitioner did not file a reply, and the time to do so expired months ago.

For the reasons set forth below, it is recommended that these proceedings be denied and dismissed with prejudice, the Clerk of Court be directed to terminate this matter, and a certificate of appealability be denied.

I. BACKGROUND

A. Events Resulting in Charges Against Petitioner

The presentence report prepared for Petitioner's sentencing in Maricopa County Superior Court case number CR2018-146028-001 summarized the events leading to charges against Petitioner:

[Petitioner] sexually abused Victim A by touching her vagina and breasts. He additionally showed her pornography and had her manually stimulate him multiple times, perform oral sex on him and rubbed his erect penis multiple times on her various body parts until he ejaculated. He sexually abused Victim B by touching her vagina and breast. He additionally trimmed her pubic hair. He sexually abused Victim C by touching her vagina and breasts, tying her feet together prior to attempting various sexual positions and masturbating in front of her.

(Doc. 12-3 at 16)³

3 The factual basis for a guilty plea in an Arizona state court “may be ascertained from the record including presentence reports, preliminary hearing reports, admissions of the defendant, and from other sources.” State v. Varela, 120 Ariz. 596, 598 (1978).

B. Petitioner's Charges, Plea, and Sentences

On September 28, 2018, in Maricopa County Superior Court case number CR2018-146028-001, a grand jury indicted Petitioner with twenty-six crimes, including eight counts of molestation of a child, a class 2 felony and dangerous crime against children; two counts of kidnapping, a class 2 felony and dangerous crime against children; six counts of sexual abuse, a class 3 felony and dangerous crime against children; eight counts of sexual conduct with a minor, a class 2 felony and dangerous crime against children; one count of furnishing obscene or harmful items to minors, a class 4 felony and dangerous crime against children; and one count of public sexual indecency to a minor, a class 5 felony. (Doc. 12-1 at 4-16) During trial court proceedings, Petitioner was represented by appointed counsel Mike Kessler of the Maricopa County Public Defender's Office. (Id. at 19, 23, 27, 129)

On December 17, 2018, Petitioner's case was designated as complex due to the number and nature of the charges against Petitioner. (Id. at 19-21) At a January 30, 2019, complex case management conference, the parties reported that a settlement conference had been set for February 11, 2019, and that the state agreed to extend the expiration date of an offered plea agreement to February 28, 2019. (Id. at 23-24)

On February 11, 2019, Maricopa County Superior Court Judge Ronda R. Fisk held a settlement conference to discuss the state's plea offer and possible outcomes at trial should Petitioner choose to proceed to trial. (Id. at 26-66) Judge Fisk informed that if Petitioner went to trial, he would have a different trial judge than the settlement judge but might return to the settlement judge, Judge Fisk, for sentencing. (Id. at 31-32) Judge Fisk stated that Petitioner's admissions regarding the events underlying the charges against Petitioner would weigh heavily with a jury, as would statements from an 11-year-old victim. (Id. at 32-33) In addition to explaining trial procedures, Judge Fisk also informed that the state could choose to re-prosecute any charge on which a jury could not reach agreement. (Id. at 34-35) As for post-trial proceedings, Judge Fisk explained that if convicted at trial, Petitioner would be sentenced 30 days afterwards. (Id. at 35) Judge Fisk described that a jury would be asked to find aggravators, such as the existence of multiple victims, harm to the victims, and the age of the victims, and that the sentencing court would take into account any aggravators the jury found. (Id.) Judge Fisk also relayed that the defense could present mitigation. (Id.)

Judge Fisk explained that there were 26 charges against Petitioner involving three victims. (Id. at 37-39) For each count, Judge Fisk set forth the sentencing ranges, as well as whether the count was probation eligible. (Id. at 39-40) Judge Fisk also informed that life imprisonment was discretionary on three counts and mandatory on two counts. (Id. at 40)

Judge Fisk communicated that the sentencing court would consider aggravators and mitigation and that Petitioner's lawyer would have an opportunity to present mitigation at sentencing or at a separate mitigation hearing. (Id. at 41-42) Judge Fisk described that mitigation might include a memo from Petitioner's counsel, statements from Petitioner, and statements from family members about Petitioner's family history. (Id.) Judge Fisk also explained that the victims could address the sentencing court. (Id. at 42) Judge Fisk stated that some of the charges against the Petitioner were sex abuse charges, which were probation eligible and for which Petitioner could serve “85 percent time” if sentenced to prison instead of probation if convicted on those charges. (Id. at 42) Judge Fisk pointed out that for the other dangerous crimes against children, Petitioner would receive flat imprisonment time if convicted, meaning that Petitioner would not be able to leave prison until the full expiration of the prison term. (Id. at 42-43) For charges of molestation and sexual abuse of a single victim, Judge Fisk stated that sentences for those counts could run concurrently, but sentences for sexual conduct with a minor and any counts related to different victims would run consecutively. (Id. at 43) Judge Fisk informed that Petitioner could be facing five consecutive life sentences “and then even more on top of that if” Petitioner were found guilty of all the charges. (Id. at 44) Judge Fisk answered Petitioner's question that a life sentence for a dangerous crime against children would be thirty-five years imprisonment. (Id.) Summing up, Judge Fisk stated that if Petitioner went to trial and lost on even two or three of the more serious charges, he could go to prison for the rest of his life. (Id. at 45)

In reviewing the plea offer, Judge Fisk stated that the plea offer provided that Petitioner would plead guilty to one count of sexual conduct with a minor and two counts of attempted molestation of a child. (Id. at 45-46) For the count of sexual conduct with a minor, Judge Fisk explained that the plea offer provided that Petitioner would receive no less than 20 years' imprisonment but could receive up to 27 years' imprisonment. (Id. at 46) Further, for the two counts of attempted molestation of a child, the plea offer provided that Petitioner would receive two separate terms of lifetime probation, and if probation were to later be revoked, Petitioner could receive a five- to fifteen-year imprisonment sentence with a presumptive sentence of ten years. (Id.) Judge Fisk stated that the “plea offer of 20 to 27 years is what I would anticipate seeing if a lawyer had advocated strongly for that defendant and gotten the State to give the best plea offer that they could hope to see.” (Id. at 48) Judge Fisk also observed that Petitioner had previously received a plea offer for 35 years' imprisonment and opined that Petitioner's plea offer of 20 to 27 years' imprisonment was what the judge “would expect to see after your lawyer had worked really hard to get it down[.]” (Id. at 49)

Moreover, the prosecutor explained that “20 to 27 is kind of what I would have expected with some decent mitigation in this type of case” and warned that if the plea offer expired, the state would not offer less than 27 years' imprisonment in a future plea offer. (Id. at 50) Petitioner's counsel Mike Kessler stated that Petitioner had asked about a mitigation specialist and risk assessment, but Petitioner's counsel opined that there was not enough time for a mitigation specialist. (Id. at 53-54) The prosecutor informed that Petitioner's counsel was correct in advising Petitioner that a risk assessment would not lead to a more favorable plea offer. (Id. at 54-57) The prosecutor also explained the reasoning behind the open plea offer. (Id. at 57-59)

Following the settlement conference, the clerk of the superior court filed two motions to change counsel which Petitioner had signed on February 4 and 14, 2019. (Id. at 68-70, 72-74) In the motions, Petitioner requested that appointed counsel Mike Kessler be withdrawn and replaced as Petitioner's counsel of record. (Id.) In the first motion to change counsel, no reason was given. (Id. at 68-70). In the second motion to change counsel, Petitioner asserted that he had submitted a formal complaint to the state bar against counsel Mike Kessler; that counsel failed Petitioner as an attorney by coercing Petitioner into writing a retraction letter to the state bar; and that counsel Mike Kessler had displayed hostile and aggressive behavior. (Id. at 72)

On February 28, 2019, Judge Fisk held a status conference and possible change of plea hearing. (Id. at 76-114) At the status hearing, Judge Fisk asked Petitioner whether he wanted to proceed with his motions to change counsel. (Id. at 79) Petitioner responded, “I don't know.” (Id.) Judge Fisk explained that if Petitioner wanted to proceed with his motions to change counsel, his motions would be referred to the trial judge, that any change of plea hearing would be postponed, and that the state had agreed to keep open the offered plea agreement until the trial judge made a decision on Petitioner's motions to change counsel. (Id. at 79-83) The parties agreed that if Petitioner entered a change of plea that day, Judge Fisk would later sentence Petitioner rather than the trial judge. (Id. at 83; see also id. at 32) A recess was taken to allow Petitioner to further confer with his counsel Mike Kessler. (Id. at 82-83)

When court convened following the recess, Petitioner asked several questions, which Judge Fisk and counsel answered on the record. (Id. at 84-86) The prosecutor underscored that mitigation had already been factored into the plea offer and that Petitioner would not obtain a more favorable plea offer if Petitioner changed counsel or rejected the extended plea offer. (Id.) Upon Petitioner stating that he would go forward with the plea offer (id. at 87), Judge Fisk and Petitioner had the following exchange:

THE COURT: So you understand that when we go through the change of plea colloquy, I'm going to ask you, has anyone forced you or threatened you, in any way, to enter into this plea agreement.

You have filed a Motion to Change Counsel. And in that motion, you have alleged that your attorney has forced you to do certain things.

Are you going to be able to say honestly and on the record that your attorney did not force you to enter into this plea agreement?

THE DEFENDANT: Yes.

THE COURT: You will be able to say that?

THE DEFENDANT: Yes.

THE COURT: So you are not making any allegation that your attorney is forcing you to enter into this plea agreement?

THE DEFENDANT: No.

THE COURT: And you are not making any allegation that your attorney threatened you, in any way, to get you to enter into this plea agreement; is that correct?

THE DEFENDANT: That is correct.

(Id. at 88-89) Petitioner also stated that he was withdrawing his motion to change counsel. (Id.)

After a recess during which Petitioner signed and initialed the plea agreement, including a sex offender registration addendum, Judge Fisk conducted the change of plea colloquy. (Id. at 92-112, 125-27; see also id. at 116-123) The plea agreement Petitioner signed and initialed included that Petitioner “waives and gives up any and all motions, defenses, objections, or requests which he has made or raised, or could assert hereafter, to the court's entry of judgment against him and imposition of a sentence upon him consistent with this agreement.” (Id. at 119) The plea agreement also provided that amended Count 22 carried a presumptive sentence of 20 years, a minimum sentence of 13 years, and a maximum sentence of 27 years imprisonment. (Id. at 117) However, the plea agreement stipulated that Petitioner would be sentenced to no less than the presumptive sentence for amended Count 22 and would receive lifetime probation as to amended Counts 23 and 24. (Id. at 118)

During the change of plea colloquy, Petitioner stated that he understood the terms of the plea agreement, that he was not being forced to enter the plea agreement, that he would be giving up certain constitutional rights by pleading guilty, and that he understood that he had the right to file a PCR petition within 90 days of sentencing. (Id. at 93-106) Petitioner acknowledged that his signature and initials indicated that Petitioner had discussed the plea agreement terms with his counsel, and Petitioner stated that he understood and agreed with the terms of the plea agreement and sex offender registration addendum. (Id. at 95-96) Judge Fisk addressed whether Petitioner was being pressured into entering the plea agreement:

Q. And before this proceeding, I reviewed with you the reasons for wanting that Motion to Change Counsel, and one of the reasons that you filed that motion was you alleged that your lawyer was in some way pressuring you or forcing you to enter into this plea agreement. You have indicated that that is not the case, correct?

A. That was not the case.

Q. All right.

MR. KESSLER: Judge, actually just to be clear, that was not what he was saying in the Motion to Change Counsel. He was saying I was forcing him to do something else.

THE COURT: Okay.

MR. KESSLER: I think this is fine.

THE COURT: All right.

BY THE COURT:

Q. So you in no way have any hesitation in entering into this Plea Agreement, correct?

A. No, ma'am.

Q. And you have agreed to withdraw that Motion to Change Counsel, correct?

A. Yes, ma'am.

Q. All right. Thank you.

(Id. at 102-03) Petitioner stated that he understood that by pleading guilty he was giving up the right to a direct appeal and that he could only file a PCR petition. (Id. at 105)

Petitioner proceeded to plead guilty to one count of sexual conduct with a minor (amended Count 22 of the indictment) and two counts of attempted molestation of a child (amended Counts 23 and 24 of the indictment) and agreed to the factual basis placed on the record by counsel Mike Kessler. (Id. at 106-09) Judge Fisk found that Petitioner's guilty pleas were knowingly, intelligently, and voluntarily made. (Id. at 109) Upon the request of counsel Mike Kessler, Judge Fisk set a mitigation hearing. (Id. at 129-30, 132)

Before the mitigation hearing, Petitioner filed another motion to change counsel in which Petitioner asserted that counsel Mike Kessler allowed Petitioner “to admit to charges he did not commit.” (Id. at 134-37) On May 1, 2019, Judge Fisk held a hearing to address Petitioner's third motion to change counsel. (Id. at 139-58) Petitioner explained that he was requesting new counsel due to alleged events that occurred prior to the February 28, 2019, change of plea hearing and asserted that he felt intimidated with the plea agreement. (Id. at 142-47) Judge Fisk recounted that the court addressed Petitioner's concerns about his counsel and made a “very complete record” as to whether Petitioner was intimidated into the plea agreement. (Id.) Petitioner asserted that he had not worked with counsel Mike Kessler since the plea agreement but had been working with a mitigation specialist. (Id. at 147-48) Petitioner's counsel Mike Kessler reported that a mitigation specialist had visited Petitioner at the jail multiple times, and Petitioner's counsel expressed concern that Petitioner was not heeding the advice of counsel and the mitigation specialist. (Id. at 150) Judge Fisk granted Petitioner's motion for change of counsel, appointed attorney Kaitlin Verdura as new counsel for Petitioner, and ordered new counsel to (1) review with Petitioner whether manifest injustice occurred warranting a request to allow Petitioner to withdraw from plea agreement, and (2) work with Petitioner regarding mitigation in preparation for a mitigation and sentencing hearing. (Id. at 152, 155-56, 160-61)

Petitioner's counsel did not file a motion to withdraw from the plea agreement. (Doc. 12-6 at 103-104) Rather, ahead of the mitigation and sentencing hearing, Petitioner's counsel Kaitlin Verdura filed a sentencing memorandum detailing Petitioner's childhood and mental health issues (Doc. 12-2 at 2-13) and character letters from Petitioner and Petitioner's aunt (Doc. 12-3 at 2-9). A presentence report was prepared for Petitioner's June 14, 2019, sentencing. (Id. at 11-22) On June 14, 2019, Judge Fisk held a sentencing hearing. (Id. at 24-63) At the sentencing hearing, one of the victims and her mother read impact statements for themselves and for a younger victim. (Id. at 31-36) The state requested that Petitioner receive a maximum sentence under the plea agreement, and Petitioner's counsel Kaitlin Verdura argued for mitigating factors, including the circumstances of Petitioner's childhood, Petitioner's mental health challenges and acceptance of responsibility, and Petitioner's completion of a cognitive skills class while incarcerated. (Id. at 29-30, 36-42) Petitioner read two letters to the court and a letter to his wife, each expressing remorse. (Id. at 42-47) Judge Fisk found as mitigating factors that Petitioner did not have an easy childhood, was the victim of physical, verbal, emotional, and sexual abuse, and was remorseful and accepting of responsibility for his actions. (Id. at 48-49) As aggravating factors, Judge Fisk found that Petitioner was a father figure to the victims and violated their trust, that the victims were harmed and lived with the threat of what would happen if they reported Petitioner, and that Petitioner's wife was harmed. (Id. at 49-50) Taking these factors into account, Judge Fisk determined that an aggravated sentence was appropriate, but Judge Fisk also assigned the mitigating factors some weight. (Id. at 50) Judge Fisk sentenced Petitioner to twenty-five years of incarceration with 270 days for time served as to amended Count 22, imposed lifetime probation as to amended Counts 23 and 24, and required Petitioner to register as a sex offender. (Id. at 50-52; see also id. at 58-63) Per the plea agreement, the remaining charges were dismissed. (Id. at 54, 62) Judge Fisk informed Petitioner of his right to file a PCR petition within 90 days of the sentencing hearing. (Id. at 54)

C. Petitioner's Post-Conviction Relief (“PCR”) Proceedings

On August 14, 2019,⁴ Petitioner timely filed a PCR notice in the superior court and requested appointment of counsel. (Id. at 65-92) In the PCR notice, Petitioner stated that he was raising claims of ineffective assistance of counsel (“IAC”), subject matter jurisdiction, abuse of discretion, prosecutorial misconduct, and denial of speedy trial. (Id. at 66-67) Petitioner attached a memorandum in which Petitioner argued (1) that counsel Kaitlin Verdura did not challenge the term of lifetime probation in the plea agreement, (2) that A.R.S. § 13-902 is susceptible to more than one interpretation, (3) that the court abused its discretion in sentencing Petitioner, and (4) that Petitioner was denied a speedy trial “by fraud through prosecutorial misconduct.” (Id. at 68-92)

4 Petitioner signed his PCR notice on August 14, 2019 (Doc. 12-3 at 67), but his PCR notice was not docketed by the clerk of court until August 19, 2019. (Id. at 65) Pursuant to the prison mailbox rule, this Report and Recommendation uses August 14, 2019, as the date of Petitioner's PCR notice. See State v. Rosario, 195 Ariz. 264, 266 (App. 1999) (applying the prison mailbox rule to state court PCR notices); Melville v. Shinn, 68 F.4th 1154, 1159 (9th Cir. 2023) (PCR filing date is date signed by petitioner).

The superior court appointed the Office of the Legal Advocate as counsel for Petitioner. (Doc. 12-4 at 2-4) On September 12, 2019, Petitioner filed a “Motion Demand Under Canon Two Rule 2.6 Right to Be Heard With Brief” in the superior court, requesting that the superior court not accept anything filed on Petitioner's behalf without his signature, that Petitioner's affidavit and declaration attached to his PCR notice be the primary memorandum in PCR proceedings, and that a filing by Petitioner's counsel be considered supplemental. (Id. at 6-7) In response to Petitioner's September 12, 2019, motion, the superior court issued an order which stated that “[b]ecause [Petitioner] has counsel, the Court cannot accept any pro se filings or communications from him.” (Id. at 9) The order stated that the filing had been forwarded to Petitioner's counsel and the court would take no action on the filing beyond such forwarding. (Id.)

On November 4, 2019, Petitioner filed a petition for review in the Arizona Court of Appeals, arguing that the detective in his case had made false promises that Petitioner could get mental help and that mitigating factors were not considered at sentencing. (Doc. 12-6 at 17-19) On November 8, 2019, the court of appeals dismissed the petition for review as premature because the superior court had not entered a final order in Petitioner's PCR proceedings. (Id. at 21-22) The court of appeals' order stated that that Petitioner could file a petition for review in the court of appeals within thirty days after the superior court entered a final decision in Petitioner's PCR proceedings. (Id. at 21)

On December 26, 2019, Petitioner sent a letter to the court of appeals asking if and when he would return to court. (Id. at 24) The clerk of the court of appeals filed the letter from Petitioner and responded with a letter, also filed with the court of appeals, that the court of appeals matter was closed and that questions regarding further proceedings should be directed to the superior court. (Id. at 26)

On December 30, 2019, Petitioner's appointed counsel Grace Guisewite of the Office of the Legal Advocate (“PCR counsel”) filed a notice of completion of postconviction review and requested an extension of time for Petitioner to file a pro se PCR petition. (Doc. 12-4 at 11-19) In the filing by PCR counsel, PCR counsel set forth the procedural history of the matter, recounted her review of the record, and stated that she was unable to find any claims for relief to be raised in PCR proceedings. (Id.) On January 22, 2020, the superior court ordered PCR counsel to remain in an advisory capacity through Petitioner's PCR proceedings and granted Petitioner an extension to file a pro se PCR petition. (Id. at 21-22)

On January 16, 2020, Petitioner sent a filing to the Arizona Supreme Court, asserting that the detective in his case promised Petitioner mental help, arguing that mitigating factors were not considered for Petitioner's sentence, and requesting a mental evaluation.⁵ (Doc. 12-6 at 28-42) The Arizona Supreme Court treated the filing as a petition for review. (Id. at 44) On April 2, 2020, the Arizona Supreme Court denied Petitioner's petition for review. (Id.) On April 10, 2020, Petitioner filed a motion for reconsideration. (Id. at 46-47) Citing Ariz. R. Crim. P. 31.20(f), which prohibits motions to reconsider an order denying a petition for review unless ordered by the appellate court, the Arizona Supreme Court denied Petitioner's motion for reconsideration. (Id. at 49)

5 The Arizona Supreme Court filed the document on its docket on January 21, 2020. (Doc. 12-6 at 28)

On January 24, 2020, Petitioner filed a “Motion for Extension of time and to appoint new counsel” in the superior court. (Doc. 12-4 at 24-28) In the motion, Petitioner requested appointment of new counsel and asserted that he had a constitutional right to a psychological evaluation to be used for mitigation and sentencing. (Id. at 24-25) Petitioner attached a letter from his PCR counsel to his motion. (Id. at 26-27)

On February 18, 2020, the superior court denied Petitioner's request for new counsel and extended the time for Petitioner to file a pro se PCR petition. (Doc. 12-5 at 2-3) In August 2020, Petitioner filed a letter in the superior court requesting that his sentence be modified, that mitigating factors be considered, and that he receive an “R.T.C. test” and mental help. (Id. at 5- 8) The superior court denied relief as to Petitioner's letter without prejudice to Petitioner's ability to raise any claims from his letter in his PCR petition. (Id. at 10) In addition, the superior court extended the time for Petitioner to file a PCR petition. (Id. at 10-11)

On October 12, 2020, Petitioner filed a pro se PCR petition arguing (1) intellectual disability, (2) low mental capacity and incompetence, and (3) errors following Petitioner's detention, including ineffective assistance of counsel (“IAC”) and excessive sentence. (Id. at 13) In response, the state asserted that Petitioner did not raise a colorable claim for relief under Ariz. R. Crim. P. 33; that relief was precluded on the claims raised by Petitioner due to Petitioner's valid guilty plea; and, with respect to Petitioner's IAC claim, that Petitioner did not establish that his counsel's performance was deficient or prejudicial. (Id. at 15-25)

On February 25, 2021, Petitioner filed a petition for review in the Arizona Supreme Court. (Doc. 12-6 at 51-96) On March 2, 2021, the same petition for review was filed in the superior court. (Doc. 12-5 at 27-31) On March 4, 2021, the Arizona Supreme Court dismissed Petitioner's February 25, 2021, petition for review without prejudice because the superior court had not yet ruled on Petitioner's pending PCR petition. (Doc. 12-6 at 98-99) The Arizona Supreme Court's order dismissing review stated that Petitioner could file a new petition for review after the superior court ruled on Petitioner's PCR petition and after Petitioner presented a petition for review to the court of appeals. (Id.)

In a “motion for request for documents” dated March 17, 2021 and filed with the superior court on April 5, 2021, Petitioner requested that the state produce: all documents and related evidence submitted by or on behalf of Petitioner's wife in Maricopa County Superior Court criminal case number CR2018-146028-001 and family case FC2019-071252; police reports and judge's orders related to the arrest of Petitioner's wife; and documents and notes from the therapy visits of Petitioner's children. (Id. at 7-8, 102)

The superior court construed Petitioner's March 2, 2021, filing of the petition for review in the superior court as a reply in support of Petitioner's PCR petition. (Id. at 2) On June 9, 2022, the superior court dismissed Petitioner's PCR petition. (Id. at 2-5) After noting difficulty determining the nature of the relief sought due to the varied and sometimes sparse claims and arguments in Petitioner's PCR filings, the superior court ruled:

Constitutional Defects

[Petitioner] contends that his convictions and punishments were obtained in violation of his constitutional rights, thereby entitling him to Ariz. R. Crim.

P. 33.1(a) relief. The exact nature of [Petitioner's] constitutional claims is not clear. [Petitioner] acknowledges in his March 2021 filing that [Petitioner's] challenge to the validity of ARS § 13-902 is without merit. He also makes various claims regarding violation of speedy trial rights “and errors since the day I was detained.” But as a pleading defendant, [Petitioner] waived “all non-jurisdictional defects and defenses, including claims of ineffective assistance of counsel, except those that relate to the validity of a plea.” State v. Banda, 232 Ariz. 582, 585 ¶ 12 (App. 2013).

Ineffective Assistance of Counsel

[Petitioner] also argues that he received ineffective assistance counsel by trial counsel. To prevail on a claim of ineffective assistance, a petitioner must show both deficient performance and prejudice. Strickland v. Washngton, 466 U.S. 668, 687 (1984); State v. Salazar, 146 Ariz. 540, 541, 707 P.2d 944, 945 (1985). “To establish deficient performance during plea negotiations, a petitioner must prove that the lawyer either (1) gave erroneous advice or (2) failed to give information necessary to allow the petitioner to make an informed decision whether to accept the plea.” State v. Donald, 198 Ariz. 406, 413, ¶ 16, 10 P.3d 1193, 1200 (App. 2000). To establish prejudice in the context of a plea agreement, a defendant must show a reasonable probability that except for his lawyer's error he would not have waived his right to trial and entered a plea. Hill v. Lockhart, 474 U.S. 52, 57 (1985).

[Petitioner's] Petition alleges trial counsel provided ineffective assistance of counsel in two respects: (1) by asserting this was the best plea he was going to get (see, e.g., Notice at 9); and (2) errors resulting in [Petitioner] receiving a sentence of 25 years flat in DOC (see, e.g., PCR at 3). As a pleading defendant, [Petitioner] waived the claim of ineffective assistance of counsel as to the first allegation. Banda, 232 Ariz. at 585 ¶ 12. In addition, [Petitioner] failed to assert facts that would establish how this alleged failure impacted his plea. As to the second allegation, [Petitioner] has failed to allege colorable facts that would establish either that defense counsel's performance was deficient during the settlement conference and sentencing how it prejudiced him. In fact, defense counsel presented a strong mitigation case -including presentation of evidence regarding [Petitioner's] cognitive deficits and emotional and psychological harm that he suffered. The Court considered and weighed this mitigation against the aggravating evidence before imposing sentence.

Voluntariness of Plea

[Petitioner's] Petition further claims his plea was not knowing, intelligent, and voluntary due to purportedly coercive statements made by a detective (presumably during an unspecified interrogation) and the prosecutor (see, e.g., Reply at 3.) Yet at the change of plea proceeding, [Petitioner] acknowledged that nobody had forced or threatened him in any way to get him to accept a plea.

Moreover, a prosecutor's recitation of the case facts, trial strategy, and the range of sentence after trial versus after a plea agreement is allowed under the Arizona Rules of Criminal Procedure. See, e.g., Rule 17.4 (addressing good faith settlement discussions). [Petitioner] does not dispute the accuracy of the statements regarding the post-trial and post-plea sentencing ranges; he contends that mere [sic ] the mere presentation of the worst-case scenario was “psychological coercion,” especially in light of his “struggles with emotional

and mental deficiency.”

The Court finds [Petitioner] has failed to present a colorable claim that his plea was not knowing, intelligent, and voluntary.

Judge's Alleged Abuse of Discretion

[Petitioner] further alleges that the Court somehow abused its discretion in imposing a 25-year flat sentence followed by two terms of lifetime probation. [Petitioner] failed to explain how the sentence, which was within the sentencing guidelines for the crimes to which he pled guilty, were an abuse of discretion. The Court finds [Petitioner] has failed to present a colorable claim that the judge abused its discretion in imposing the particular sentence imposed.

(Doc. 12-6 at 3-5) As for Petitioner's motion for documents, the superior court denied the motion because Petitioner did not show how the requested information would be exculpatory and therefore did not show a substantial need for the requested documents. (Id. at 5)

On July 5, 2022, Petitioner filed a motion for resentencing, alleging that the detective in his case was deceptive and used psychological coercion, that Petitioner never received mental help that the detective promised, that Petitioner was not responsible for all the charges against him, and that the aggravating factors presented were not applicable to Petitioner. (Id. at 10-13) On August 15, 2022, the superior court denied Petitioner's motion for resentencing. (Id. at 15) The superior court found that the issue of psychological coercion had been addressed in the superior court's June 9, 2022, ruling dismissing Petitioner's PCR proceedings and that Petitioner had not presented legal authority justifying resentencing for the grounds asserted. (Id. at 15)

The record does not reflect that Petitioner filed a petition for review in the court of appeals or Arizona Supreme Court following the superior court's June 9, 2022, dismissal of Petitioner's PCR proceedings. (See id. at 102)

II. PETITIONER'S HABEAS CLAIMS

Petitioner raises four grounds for relief in his August 30, 2022, Petition. (Doc. 1) In Ground One, Petitioner asserts (a) that he received ineffective assistance of counsel due to counsel's failure to challenge the plea agreement's term of lifetime probation; (b) that he suffered denial of a speedy trial due to “fraud through prosecutorial misconduct”; (c) that A.R.S. § 13-902 is susceptible to more than one interpretation; and (d) that the superior court abused its discretion by “failing to comply with the law.” (Doc. 1 at 6)⁶ Broadly construed, Petitioner also appears to challenge the superior court's subject matter jurisdiction.⁷ (Id.)

6 As noted by Judge Logan on November 17, 2022 (Doc. 2 at 2, footnote 2), in Ground One, Petitioner states “see attached memorandum with affidavit” (Doc. 1 at 6), but there is no attachment to the Petition.

7 Petitioner starts Ground One by writing “subject matter jurisdiction[.]” (Doc. 1 at 6)

In Ground Two, Petitioner argues (a) that he received an excessive sentence and (b) that mitigating factors, such as a mental disability, were not considered at sentencing. (Id. at 7)

In Ground Three, Petitioner appears to assert (a) that his convictions are unconstitutional because he was incompetent and incapable of restoration and (b) that his trial counsel was ineffective by failing to challenge Petitioner's restoration. (Id. at 8)

In Ground Four, Petitioner argues that his sentence was unconstitutional (a) because the sentencing court did not account for Petitioner's mental deficiency and (b) because the police made false promises to Petitioner. (Id. at 9) In Ground Four, Petitioner requests that his “sentence be modified.” (Id.)

In their Limited Answer, Respondents assert that Petitioner's Ground One (b), Ground Two, and Ground Four claims are precluded due to Petitioner's guilty plea. (Doc. 12 at 18-22) Respondents further assert that each of Petitioner's claims are procedurally defaulted without excuse. (Id. at 22-30) In addition, Respondents argue that Petitioner's Ground Three (a) and (b) claims are meritless. (Id. at 30-36)

Petitioner did not file a reply in support of the Petition, and the time to do so expired months ago. (Doc. 5 at 4; Doc. 12)

III. WAIVER BY GUILTY PLEA OF GROUND ONE (B), GROUND TWO, AND GROUND FOUR CLAIMS

Respondents argue that by pleading guilty, Petitioner has waived his Ground One (b) claim that he was denied a speedy trial due to “fraud through prosecutorial misconduct”; his Ground Two (a) claim that he received an excessive sentence; his Ground Two (b) claim that mitigating factors were not considered at sentencing; and his Ground Four claims that his sentence was unconstitutional (a) because the sentencing court did not account for Petitioner's mental deficiency and (b) because the police made false promises to Petitioner. (Doc. 12 at 18-22) As discussed below, Respondents are correct about Petitioner's waiver of these claims.

A. Waiver of Constitutional Claims by Pleading Guilty

“When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Tollett v. Henderson, 411 U.S. 258, 267 (1973); see United States v. Caperell, 938 F.2d 975, 977 (9th Cir. 1991) (a guilty plea generally waives all claims of a constitutional nature occurring before the plea). Unless the petitioner alleges his plea was involuntary, or improperly induced by IAC, a conviction based on a guilty plea may not be challenged in a federal habeas proceeding, “despite various forms of misapprehension under which a defendant might [have] labor[ed].” Lambert v. Blodgett, 393 F.3d 943, 981 n.26 (9th Cir. 2004) (internal marks omitted) (collecting cases). Further, to the extent that a petitioner claims pre-plea IAC, such a claim is only “cognizable on federal habeas review when the action, or inaction, of counsel prevents petitioner from making an informed choice whether to plead.” Mahrt v. Beard, 849 F.3d 1164, 1170 (9th Cir. 2017); see also Moran v. Godinez, 57 F.3d 690, 700 (9th Cir. 1994) (superseded by statute on other grounds). It is also firmly established that a conscious “waiver” is not necessary “with respect to each potential defense relinquished by a plea of guilty.” United States v. Broce, 488 U.S. 563, 569 (1989) (holding that double jeopardy challenge was waived by guilty plea, even if defendant and attorney were unaware of the basis for the challenge at the time of plea).

B. 28 U.S.C. § 2254 Habeas Petition - Merits Standard of Review

On habeas review of claims adjudicated on the merits in a state court proceeding, this Court can only grant relief if the petitioner demonstrates prejudice because the adjudication of the claim either “(1) resulted in a decision that 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) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). This is a “‘highly deferential standard for evaluating state court rulings' which demands that state court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997)). A federal court “looks to the last reasoned state court decision” to make a determination on a claim pursuant to § 2254(d). White v. Ryan, 895 F.3d 641, 665 (9th Cir. 2018) (citing Wilson v. Sellers, __ U.S., 138 S.Ct. 1188, 1192 (2018)).

Under the “unreasonable application” prong of § 2254(d)(1), a federal habeas court may grant relief where a state court “identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular ... case” or “unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Williams v. Taylor, 529 U.S. 362, 407 (2000). For a federal court to find a state court's application of Supreme Court precedent “unreasonable” under § 2254(d)(1), the petitioner must show that the state court's decision was not merely incorrect or erroneous, but “objectively unreasonable.” Id. at 409.

To make a determination pursuant to § 2254(d)(1), the Court first identifies the “clearly established Federal law,” if any, that governs the sufficiency of the claims on habeas review. “Clearly established” federal law consists of the holdings of the United States Supreme Court which existed at the time the petitioner's state court conviction became final. Id. at 412. The Supreme Court has emphasized that “an unreasonable application of federal law is different from an incorrect application of federal law.” Id. at 410 (emphasis in original). Under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), “[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Richter, 562 U.S. at 101. Accordingly, to obtain habeas relief from this Court, Petitioner “must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.

Regarding § 2254(d)(2), a state court decision “based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). A “state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). As the Ninth Circuit has explained, to find that a factual determination is unreasonable under § 2254(d)(2), the court must be “convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record.” Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004) (abrogated on other grounds by Murray v. Schriro, 745 F.3d 984, 1000 (9th Cir. 2014)). “This is a daunting standard-one that will be satisfied in relatively few cases.” Id.

The petitioner bears the burden of rebutting the state court's factual findings “by clear and convincing evidence.” § 2254(e)(1). The Supreme Court has not defined the precise relationship between § 2254(d)(2) and § 2254(e)(1), but has clarified “that a statecourt factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” See Burt v. Titlow, 571 U.S. 12, 18 (2013) (citing Wood, 558 U.S. at 293, 301).

C. Discussion

1. Ground One (b)

In Ground One (b), Petitioner argues that he was denied a speedy trial due to “fraud through prosecutorial misconduct.” (Doc. 1 at 6)

Petitioner does not establish that the state courts' adjudication of his Ground One (b) claim as waived was contrary to, or involved an unreasonable application of, clearly established federal law, or was based on an unreasonable evaluation of the facts. 28 U.S.C. § 2254(d).

In providing the last reasoned decision on this issue, the superior court stated:

[Petitioner] contends that his convictions and punishments were obtained in violation of his constitutional rights, thereby entitling him to Ariz. R. Crim. P. 33.1(a) relief. The exact nature of [Petitioner's] constitutional claims is not clear. [Petitioner] acknowledges in his March 2021 filing that [Petitioner's] challenge to the validity of ARS § 13-902 is without merit. He also makes various claims regarding violation of speedy trial rights “and errors since the day I was detained.” But as a pleading defendant, [Petitioner] waived “all non-jurisdictional defects and defenses, including claims of ineffective assistance of counsel, except those that relate to the validity of a plea.” State v. Banda, 232 Ariz. 582, 585 ¶ 12 (App. 2013).

(Doc. 12-6 at 3)

Petitioner cannot claim “deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Tollett, 411 U.S. at 267. A petitioner “may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann [v. Richardson, 397 U.S. 759, 771 (1970)].” Id. Although Petitioner argues that he was denied a speedy trial due to prosecutorial misconduct, any issues regarding speedy trial would have occurred during pretrial proceedings, prior to Petitioner's entry of a guilty plea. Petitioner's Ground One (b) claim does not assert a jurisdictional defect. Further, Petitioner does not assert in Ground One (b) that his guilty pleas were not voluntary and intelligent, nor does he assert that he received insufficient advice from counsel.

Because Petitioner's Ground One (b) claim alleges a constitutional deprivation that occurred prior to Petitioner's entry of a guilty plea, Petitioner has not established that the state court decision that Petitioner's Ground One (b) claim was waived was contrary to or an unreasonable application of clearly established federal law, or that the state court decision was based on an unreasonable determination of the facts in light of the evidence.

2. Ground Two (a)

In Ground Two (a), Petitioner argues that he received an excessive sentence.⁸ (Doc. 1 at 7)

8 The superior court addressed Petitioner's excessive sentence claim (Doc. 12-5 at 13) as a claim of IAC of trial counsel, not as a standalone claim. (Doc. 12-6 at 4)

A plea of guilty “operates as a waiver of important rights, and is valid only if done voluntarily, knowingly, and intelligently, ‘with sufficient awareness of the relevant circumstances and likely consequences.'” Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005). Petitioner's plea agreement provided that unless the plea was “rejected by the court or withdrawn by either party, [Petitioner] hereby waives and gives up any and all motions, defenses, objections, or requests which he has made or raised, or could assert hereafter, to the court's entry of judgment against him and imposition of a sentence upon him consistent with this agreement. By entering this agreement, [Petitioner] further waives and gives up the right to appeal.” (Doc. 12-1 at 119) The plea agreement stipulated that Petitioner would be sentenced to no less than the presumptive term of 20 years' imprisonment up to a maximum sentence of 27 years for Count 22 of the indictment against Petitioner and would receive lifetime probation for Counts 23 and 24 of the indictment. (Id. at 117-18) Petitioner initialed next to each term of the plea agreement, including terms regarding sentencing provisions, and signed the plea agreement. (Id. at 116-23) At the plea colloquy, Petitioner stated that he understood and agreed to the terms of the plea agreement. (Id. at 95-96) Petitioner agreed that he was not being threatened or forced into accepting the plea agreement. (Id. at 88-89, 102-03) The superior court found that Petitioner's guilty pleas were knowing, voluntary, and intelligent. (Id. at 109) Pursuant to the terms of the plea agreement, the superior court subsequently sentenced Petitioner to a term of 25 years' imprisonment for amended Count 22 and imposed terms of lifetime probation for amended Counts 23 and 24. (Doc. 12-2 at 50-52, 58-63)

Petitioner does not argue in Ground Two (a) that his plea was not voluntary, knowing, or intelligent, nor is there any indication in the record that Petitioner's plea was not voluntary, knowing, or intelligent. Indeed, the record here is abundantly clear that Petitioner's guilty pleas were knowing, voluntary, and intelligent.

Because Petitioner voluntarily waived any objections to the superior court's imposition of a sentence consistent with the terms of the plea agreement, Petitioner waived his Ground Two (a) claim.

3. Ground Two (b)

In Ground Two (b), Petitioner argues that mitigating factors were not considered at sentencing, including that Petitioner was sexually abused, molested, and exposed to sexual situations as a child; that Petitioner was not in control of his emotions; that Petitioner had a mental disability that “was part of [his] fears”; that Petitioner endured physical, emotional, and mental abuse from his father; that Petitioner endured verbal, emotional, and mental abuse from his wife; and that Petitioner suffered from his mother's child neglect. (Id.)

As discussed supra, Petitioner's plea agreement provided that Petitioner “hereby waives and gives up any and all motions, defenses, objections, or requests which he has made or raised, or could assert hereafter, to the court's entry of judgment against him and imposition of a sentence upon him consistent with this agreement.” (Doc. 12-1 at 119) Petitioner initialed next to each term of the plea agreement and signed the plea agreement. (Id. at 116-23) At the plea colloquy, Petitioner stated that he understood and agreed to the terms of the plea agreement. (Id. at 95-96) The superior court found that Petitioner's guilty pleas were knowing, voluntary, and intelligent. (Id. at 109) Pursuant to the terms of the plea agreement, the superior court subsequently sentenced Petitioner to a term of 25 years' imprisonment for amended Count 22 and imposed terms of lifetime probation for amended Counts 23 and 24. (Doc. 12-2 at 50-52, 58-63) In doing so, the superior court considered mitigating factors. (Doc. 12-3 at 36-42, 48-49)

Petitioner does not argue in Ground Two (b) that his plea was not voluntary, knowing, or intelligent, nor is there any indication in the record that Petitioner's plea was not voluntary, knowing, or intelligent. Indeed, the record here is abundantly clear that Petitioner's guilty pleas were knowing, voluntary, and intelligent.

Because Petitioner voluntarily waived any objections to the superior court's imposition of a sentence consistent with the terms of the plea agreement, Petitioner waived his Ground Two (b) claim.

4. Ground Four (a)

In Ground Four (a), Petitioner argues that his sentence was unconstitutional because the sentencing court did not account for Petitioner's mental deficiency. (Doc. 1 at 9)

As discussed supra, Petitioner's plea agreement provided that Petitioner “hereby waives and gives up any and all motions, defenses, objections, or requests which he has made or raised, or could assert hereafter, to the court's entry of judgment against him and imposition of a sentence upon him consistent with this agreement.” (Doc. 12-1 at 119) Petitioner initialed next to each term of the plea agreement and signed the plea agreement. (Id. at 116-23) At the plea colloquy, Petitioner stated that he understood and agreed to the terms of the plea agreement. (Id. at 95-96) The superior court found that Petitioner's guilty pleas were knowing, voluntary, and intelligent. (Id. at 109) Pursuant to the terms of the plea agreement, the superior court subsequently sentenced Petitioner to a term of 25 years' imprisonment for amended Count 22 and imposed terms of lifetime probation for amended Counts 23 and 24. (Doc. 12-2 at 50-52, 58-63) In doing so, the superior court considered mitigating factors, and Petitioner and his counsel Kaitlin Verdura addressed at sentencing Petitioner's history of mental health issues. (Doc. 12-3 at 36-42, 44-45, 48-49) Counsel Kaitlin Verdura also filed a sentencing memorandum detailing Petitioner's childhood and mental health issues. (Doc. 12-2 at 2-13)

As discussed supra, Petitioner initialed next to each term of the plea agreement, signed the plea agreement, and stated that he understood and agreed to the terms of the plea agreement. (Doc. 12-1 at 95-96, 116-23) Petitioner agreed that he was not being threatened or forced into accepting the plea agreement. (Id. at 88-89, 102-03) The superior court found that Petitioner's guilty pleas were knowing, voluntary, and intelligent. (Id. at 109) There is no indication in the record that Petitioner's guilty pleas were not knowing, voluntary, and intelligent. Indeed, the record here is abundantly clear that Petitioner's guilty pleas were knowing, voluntary, and intelligent.

Because Petitioner voluntarily waived any objections to the superior court's imposition of a sentence consistent with the terms of the plea agreement, Petitioner waived his Ground Four (a) claim.

5. Ground Four (b)

In Ground Four (b), Petitioner argues that his sentence was unconstitutional because the police made false promises to Petitioner. (Doc. 1 at 9)

Petitioner cannot claim “deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Tollett, 411 U.S. at 267. A petitioner “may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann [v. Richardson, 397 U.S. 759, 771 (1970)].” Id. Any alleged false promises from the police would have occurred prior to Petitioner's entry of a guilty plea. Petitioner's Ground Four (b) claim does not assert a jurisdictional defect. Petitioner does not assert that he received insufficient advice from counsel. There is no indication in the record that Petitioner's plea was not knowing, voluntary, and intelligent. Indeed, the record here is abundantly clear that Petitioner's guilty pleas were knowing, voluntary, and intelligent.

Accordingly, Petitioner's guilty pleas waived his Ground Four (b) claim.

IV. ALL OF PETITIONER'S CLAIMS ARE PROCEDURALLY DEFAULTED WITHOUT EXCUSE

In their Limited Answer to the Petition, Respondents argue that every ground and claim raised in the Petition is unexhausted and procedurally defaulted without excuse. (Doc. 12 at 27-30, 33) As set forth below, Respondents are correct.⁹

9 Several of Petitioner's grounds also appear not to be cognizable on habeas review. A federal court may only consider a petition for writ of habeas corpus if the petitioner alleges that “he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 6768 (1991); see also Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989) (“A habeas petition must allege the petitioner's detention violates the constitution, a federal statute or a treaty.”); see also Gilmore v. Taylor, 508 U.S. 333, 349 (1993) (stating that “mere error of state law, one that does not rise to the level of a constitutional violation, may not be corrected on federal habeas.”). On habeas corpus review, federal courts lack jurisdiction to review state court applications of state procedural rules. Polandv. Stewart, 169 F.3d 573, 584 (9th Cir. 1998) (stating that “[f]ederal habeas courts lack jurisdiction ... to review state court applications of state procedural rules).”

A. Legal Framework of Procedural Default

1. Exhaustion

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).

2. Procedural Default

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).¹⁰

10 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. In Arizona, “ineffective assistance of counsel claims should be raised in postconviction relief proceedings pursuant to rule 32, Arizona Rules of Criminal Procedure.” Lambright v. Stewart, 241 F.3d 1201, 1203 (9th Cir. 2001) (quoting State v. Atwood, 171 Ariz. 576 (1992)) (finding that failure to raise IAC claims on direct appeal did not bar federal habeas review).

3. Excuse for Procedural Default

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, 523 U.S. at 623; Jaramillo, 340 F.3d at 882-83. 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, 653 F.3d at 945; McQuiggin, 569 U.S. at 399 (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, 223 F.3d at 990 (citing Calderon, 523 U.S. at 559).

B. Exhaustion

1. Ground One

Petitioner asserted his Ground One claims to the superior court during his PCR proceedings. (Doc. 12-3 at 68; Doc. 12-5 at 28-29) Petitioner did not file a petition for review in the court of appeals following the superior court's June 9, 2022, dismissal of his PCR petition.¹¹

11 Although Petitioner filed apetition for review in the Arizona Supreme Court raising his Ground One claims (Doc. 12-6 at 51-96), Petitioner filed his petition for review in the Arizona Supreme Court on February 25, 2020, prior to the superior court's June 9, 2022, dismissal of Petitioner's PCR petition. The Arizona Supreme Court dismissed Petitioner's petition for review as procedurally improper because the superior court had not yet issued a ruling on Petitioner's PCR petition and because Petitioner had not presented the claims in his petition for review to the court of appeals. (Id. at 98-99) Likewise, the Arizona Court of Appeals dismissed Petitioner's earlier petition for review in the court of appeals because it was filed before the conclusion of Petitioner's PCR proceedings in the superior court. (Doc. 12-6 at 21-22)

Ariz. R. Crim. P. 33.16 allows a party to petition an appellate court for review “[n]o later than 30 days after entry of the trial court's final decision on a petition or a motion for rehearing, or the dismissal of a notice[.]” The record does not reflect that Petitioner presented his Ground One claims to the court of appeals following the superior court's June 9, 2022, dismissal of Petitioner's PCR petition. (Id. at 107-08) Petitioner did not present his Ground One claims in a procedurally appropriate manner to both the superior court and the court of appeals in his PCR proceedings, where he was required to raise such. See Swoopes, 196 F.3d at 1010 (Aside from “habeas petitions in life-sentence or capital cases, claims of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.”). Because Petitioner did not present any of his Ground One claims to the state courts for one full round of review during PCR proceedings, Petitioner's Ground One claims were not properly exhausted.

2. Ground Two

In Ground Two of the Petition, Petitioner argues (a) that he received an excessive sentence and (b) that mitigating factors, such as a mental disability, were not considered at sentencing. (Doc. 1 at 7)

Petitioner raised his Ground Two (a) claim to the superior court during his PCR proceedings. (Doc. 12-5 at 13) Petitioner did not file a petition for review in the court of appeals following the superior court's June 9, 2022, dismissal of his PCR petition. Petitioner did not present his Ground Two (a) claim in a procedurally appropriate manner to the court of appeals in his PCR proceedings, where he was required to raise such. Swoopes, 196 F.3d at 1010; see also Ariz. R. Crim. P. 33.16 (allowing petition for review 30 days after superior court's final decision). Because Petitioner did not present his Ground Two (a) claim to the state courts for one full round of review during PCR proceedings, Petitioner's Ground Two (a) claim was not properly exhausted.

Petitioner did not raise his Ground Two (b) claim to the superior court during his PCR proceedings. Although Petitioner raised his Ground Two (b) claim in his November 4, 2019, petition for review in the court of appeals, Petitioner filed his petition for review in the court of appeals before the superior court issued a ruling on Petitioner's PCR petition on June 9, 2022. (Doc. 12-6 at 17-19) The court of appeals dismissed Petitioner's petition for review as premature because the superior court had not issued a final decision on Petitioner's PCR petition. (Id. at 21-22) The court of appeals' dismissal order was clear that the proper timeframe for Petitioner to file a petition for review in the court of appeals was no later than thirty days following the superior court's final decision in Petitioner's PCR proceedings. (Id. at 21). The record reflects that Petitioner did not file a petition for review in the court of appeals following the superior court's June 9, 2022, dismissal of Petitioner's PCR petition. Because Petitioner did not properly present his Ground Two (b) claim in a procedurally appropriate manner to both the superior court and the court of appeals in his PCR proceedings, where he was required to raise such, Petitioner's Ground Two (b) claim was not properly exhausted. Swoopes, 196 F.3d at 1010; see also Ariz. R. Crim. P. 33.16.

3. Ground Three

In Ground Three of the Petition, Petitioner argues (a) that his convictions are unconstitutional because he was incompetent and incapable of restoration and (b) that his trial counsel was ineffective by failing to challenge Petitioner's restoration. (Doc. 1 at 8)

While Petitioner raised his Ground Three (a) claim to the superior court during his PCR proceedings (Doc. 12-5 at 13, 28), Petitioner did not file a petition for review in the court of appeals following the superior court's June 9, 2022, dismissal of Petitioner's PCR petition. Although Petitioner raised his Ground Three (a) claim in his February 25, 2021, petition for review in the Arizona Supreme Court (Doc. 12-6 at 52-53), Petitioner filed his petition for review before the superior court issued its June 9, 2022, ruling on Petitioner's PCR petition. The Arizona Supreme Court dismissed Petitioner's petition for review because the superior court had not yet issued a ruling on Petitioner's PCR petition and because Petitioner had not presented the claims in his petition for review to the court of appeals. (Id. at 98-99) Petitioner did not present his Ground Three (a) claim to the court of appeals following the superior court's June 9, 2022, dismissal of Petitioner's PCR petition. (Id. at 107-08) Petitioner did not present his Ground Three (a) claim in a procedurally appropriate manner to the court of appeals during his PCR proceedings, where he was required to raise such. Swoopes, 196 F.3d at 1010; see also Ariz. R. Crim. P. 33.16. Because Petitioner did not properly present his Ground Three (a) claim to the state courts for one full round of review during PCR proceedings, Petitioner's Ground Three (a) claim was not properly exhausted.

Petitioner raised his Ground Three (b) claim to the superior court during his PCR proceedings. (Doc. 12-5 at 28-29) Petitioner did not file a petition for review in the court of appeals following the superior court's June 9, 2022, dismissal of Petitioner's PCR petition. Although Petitioner raised his Ground Three (b) claim in his February 25, 2021, petition for review in the Arizona Supreme Court (Doc. 12-6 at 52-53), Petitioner filed his petition for review before the superior court issued its June 9, 2022, ruling on Petitioner's PCR petition. The Arizona Supreme Court dismissed Petitioner's petition for review because the superior court had not yet issued a ruling on Petitioner's PCR petition and because Petitioner had not presented the claims in his petition for review to the court of appeals. (Id. at 98-99) Petitioner did not present his Ground Three (b) claim to the court of appeals following the superior court's June 9, 2022, dismissal of Petitioner's PCR petition. (Id. at 107-08) Petitioner did not present his Ground Three (b) claim in a procedurally appropriate manner to the court of appeals during his PCR proceedings, where he was required to raise such. Swoopes, 196 F.3d at 1010; see also Ariz. R. Crim. P. 33.16. Because Petitioner did not properly present his Ground Three (b) claim to the state courts for one full round of review during PCR proceedings, Petitioner's Ground Three (b) claim was not properly exhausted.

4. Ground Four

In Ground Four of the Petition, Petitioner argues that his sentence was unconstitutional (a) because the sentencing court did not account for Petitioner's mental deficiency and (b) because the police made false promises to Petitioner. (Doc. 1 at 9)

Petitioner raised his Ground Four claims to the superior court during his PCR proceedings. (Doc. 12-5 at 28) Petitioner did not file a petition for review in the court of appeals following the superior court's June 9, 2022, dismissal of Petitioner's PCR petition. Although Petitioner raised his Ground Four claims in his February 25, 2021, petition for review in the Arizona Supreme Court (Doc. 12-6 at 52), Petitioner filed his petition for review before the superior court issued its June 9, 2022, ruling on Petitioner's PCR petition. The Arizona Supreme Court dismissed Petitioner's petition for review because the superior court had not yet issued a ruling on Petitioner's PCR petition and because Petitioner had not presented the claims in his petition for review to the court of appeals. (Id. at 98-99) Petitioner did not present his Ground Four claims to the court of appeals following the superior court's June 9, 2022, dismissal of Petitioner's PCR petition. (Id. at 107-08) Petitioner did not present his Ground Four claims in a procedurally appropriate manner to the court of appeals during his PCR proceedings, where he was required to raise such. Swoopes, 196 F.3d at 1010; see also Ariz. R. Crim. P. 33.16. Because Petitioner did not properly present his Ground Four claims to the state courts for one full round of review during PCR proceedings, Petitioner's Ground Four claims were not properly exhausted.

C. Grounds One Through Four Are Procedurally Defaulted

Petitioner's Grounds One through Four are unexhausted and implicitly procedurally defaulted because it is too late under Arizona procedure for Petitioner to return to state court to properly exhaust such claims. It is too late for Petitioner to seek review in the Arizona Court of Appeals of the superior court's June 9, 2022, dismissal of Petitioner's PCR petition. Petitioner was required to seek review in the Arizona Court of Appeals within thirty days of the dismissal of Petitioner's PCR proceedings in the superior court. Ariz. R. Crim. P. 33.16.

Further, Petitioner cannot cure his previous failure to seek timely review in the Arizona Court of Appeals by filing a new PCR petition in the superior court, nor can Petitioner return to superior court to raise his Ground Two (b) claim. See Ariz. R. Crim. P. 33.2(a)(3) ¹² (a defendant is precluded from relief pursuant to Rule 33.1(a) that was waived in a previous PCR petition); Ariz. R. Crim. P. 33.4(b)(3)(A) (claims filed pursuant to Rule 33.1(a) must be filed within 90 days after oral pronouncement of sentence); Ariz. R. Crim. P. 33.1(b)-(h), 33.2(b)(1), 33.4(b)(3)(B) (allowing a defendant to assert claims identified in Rule 33.1(b) through (h) “within a reasonable time after discovering the basis for the claim.”) Arizona Rule of Criminal Procedure 33.1(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. 33.1(b)-(h).

12 Arizona Rule of Criminal Procedure 33.2(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 rules 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 (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.

Petitioner does not argue he is able to return to state court to properly exhaust any of his claims, and the record does not support such an argument. All of Petitioner's claims are procedurally defaulted.

D. Petitioner Fails to Establish Cause and Prejudice or Miscarriage of Justice/Actual Innocence to Excuse the Procedural Default of Grounds One Through Four

To excuse the procedural default of Grounds One through Four, 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.

1. Cause and prejudice

In his Petition, Petitioner asserts that he did not present his Ground Two claim to the court of appeals because there was “[n]o response from Appeals, only transfer to AZ Supreme Court on January 23, 2020[.]” (Doc. 1 at 7) Similarly, Petitioner asserts that he did not present his Ground Three claim to the court of appeals because Petitioner “sent petition for a third time and the court denied because they transferred it to the AZ Supreme Court[.]” (Id. at 8)

The court of appeals' docket reflects that the court of appeals forwarded a partial record to the Arizona Supreme Court in response to Petitioner's premature January 2020 petition for review to the Arizona Supreme Court, which was denied in the Arizona Supreme Court's April 2, 2020, order. (Doc. 12-6 at 107) Nevertheless, the Arizona Court of Appeals and the Arizona Supreme Court orders during Petitioner's PCR proceedings in the superior court clearly reflected that Petitioner's petitions for review were premature because the superior court had not issued a ruling as to Petitioner's PCR petition. (Id. at 21-22, 98-99) The court of appeals' order expressly stated that Petitioner could file a petition for review within thirty days following the superior court's decision. (Id. at 21) The Arizona Supreme Court's order stated that Petitioner could file a petition for review in the supreme court after the superior court's decision and after Petitioner presented a petition for review to the court of appeals. (Id. at 98-99) Due to the orders from the court of appeals and Arizona Supreme Court, Petitioner was aware of the time frame and opportunity to properly file petitions for review in the Arizona Court of Appeals and Arizona Supreme Court, yet Petitioner did not file a petition for review in the court of appeals following the superior court's June 9, 2022, dismissal of his PCR petition. Petitioner's assertion that the court of appeals forwarded his petition for review to the Arizona Supreme Court in January 2020 does not explain why Petitioner did not present his procedurally defaulted Grounds One through Four to the court of appeals following the superior court's June 9, 2022, dismissal of Petitioner's PCR petition. Further, Petitioner does not argue or establish prejudice resulting from the orders and actions of the court of appeals and supreme court. Accordingly, Petitioner has not established cause and prejudice to excuse his procedural default of Grounds One through Four.

2. Miscarriage of justice/actual innocence

Although Petitioner has not met his burden to show cause and prejudice excusing his procedural default of Grounds One through Four, Petitioner may alternatively establish a miscarriage of justice/actual innocence to excuse his procedural default. Coleman, 510 U.S. at 750. To meet this exception to procedural default, Petitioner must “support his allegations of constitutional error with new reliable evidence[,]” Schlup, 513 U.S. at 324, and “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).

Petitioner does not argue miscarriage of justice or actual innocence in his Petition, nor does Petitioner include any attachments with his Petition as “new reliable evidence” that would likely prevent a jury from convicting him. Schlup, 513 U.S. at 324. Indeed, Petitioner plead guilty under oath to the crimes of conviction, agreed to the factual bases of his guilty pleas on the record, and expressed remorse at his sentencing.

Petitioner has not met his burden to establish actual innocence that would excuse his procedural default of Grounds One through Four.

V. MERITS OF GROUND THREE

In their Limited Answer, Respondents also argue that Petitioner's Ground Three claims fail on the merits. (Doc. 12 at 33-36) As discussed below, Respondents are correct.

A. 28 U.S.C. § 2254 - Legal Standard of Review

On habeas review of claims adjudicated on the merits in a state court proceeding, this Court can only grant relief if the petitioner demonstrates prejudice because the adjudication of the claim either “(1) resulted in a decision that 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) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). This is a “‘highly deferential standard for evaluating state court rulings' which demands that state court decisions be given the benefit of the doubt.” Woodford, 537 U.S. at 24 (quoting Lindh, 521 U.S. at 333 n.7). A federal court “looks to the last reasoned state court decision” to make a determination on a claim pursuant to § 2254(d). White, 895 F.3d at 665 (citing Wilson, 138 S.Ct. at 1192).

Under the “unreasonable application” prong of § 2254(d)(1), a federal habeas court may grant relief where a state court “identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular ... case” or “unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Williams, 529 U.S. at 407. For a federal court to find a state court's application of Supreme Court precedent “unreasonable” under § 2254(d)(1), the petitioner must show that the state court's decision was not merely incorrect or erroneous, but “objectively unreasonable.” Id. at 409.

To make a determination pursuant to § 2254(d)(1), the Court first identifies the “clearly established Federal law,” if any, that governs the sufficiency of the claims on habeas review. “Clearly established” federal law consists of the holdings of the United States Supreme Court which existed at the time the petitioner's state court conviction became final. Id. at 412. The Supreme Court has emphasized that “an unreasonable application of federal law is different from an incorrect application of federal law.” Id. at 410 (emphasis in original). Under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), “[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Richter, 562 U.S. at 101. Accordingly, to obtain habeas relief from this Court, Petitioner “must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.

Regarding § 2254(d)(2), a state court decision “based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El, 537 U.S. at 340. A “statecourt factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood, 558 U.S. at 301. As the Ninth Circuit has explained, to find that a factual determination is unreasonable under § 2254(d)(2), the court must be “convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record.” Taylor, 366 F.3d at 1000. “This is a daunting standard-one that will be satisfied in relatively few cases.” Id. The petitioner bears the burden of rebutting the state court's factual findings “by clear and convincing evidence.” § 2254(e)(1). The Supreme Court has not defined the precise relationship between § 2254(d)(2) and § 2254(e)(1), but has clarified “that a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” See Burt, 571 U.S. at 18, citing Wood, 558 U.S. at 293, 301.

Where no state court has ruled on the merits of a petitioner's claim, this Court reviews the claim de novo. Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006) (citing Rompilla v. Beard, 545 U.S. 374, 377 (2005)).

B. Applicable Law

1. Incompetence

The Fourteenth Amendment Due Process Clause “prohibits the criminal prosecution of a defendant who is not competent to stand trial.” Medina v. California, 505 U.S. 437, 439 (1992) (citing Drope v. Missouri, 420 U.S. 162 (1975)). The standard for a defendant's “competence to stand trial is whether the defendant has ‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding' and has ‘a rational as well as factual understanding of the proceedings against him.'” Godinez v. Moran, 509 U.S. 389, 396 (1993) (quoting Dusky v. United States, 362 U.S. 402 (1960)). If a defendant is unable “to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense[,]” the defendant is not competent to stand trial. Drope, 420 U.S. at 171. The Court considers whether a petitioner was in fact incompetent “even if the evidence before the trial judge was insufficient to raise a good faith doubt” as to the petitioner's competency. Steinsvik v. Vinzant, 640 F.2d 949, 954 (9th Cir. 1981).

2. Ineffective Assistance of Counsel

Under clearly established federal law on IAC, a petitioner must show that his counsel's performance was both (a) objectively deficient and (b) caused him prejudice. Stricklandv. Washington, 466 U.S. 668, 687 (1984). In federal habeas corpus review, this results in a “doubly deferential” review of counsel's performance. Cullen v. Pinholster, 563 U.S. 170, 190 (2011) (explaining that in a 28 U.S.C. § 2254 case, deference is due both to defense counsel's performance and to the state court's ruling). A habeas court reviewing a claim of ineffective assistance of counsel must determine “whether there is a reasonable argument that counsel satisfied Strickland's deferential standard, such that the state court's rejection of the IAC claim was not an unreasonable application of Strickland. Relief is warranted only if no reasonable jurist could disagree that the state court erred.” Murray v. Schriro, 746 F.3d 418, 465-66 (9th Cir. 2014) (internal citations and quotations omitted). Moreover, “[a] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 669. When review of the Strickland test is under § 2254(d), “the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Harrington v. Richter, 562 U.S. 86, 105 (2011). The Court has discretion to determine which Strickland prong to apply first, and the failure to satisfy either prong of the Strickland test obviates the need to consider the other prong. Strickland, 466 U.S. at 697.

C. Ground Three (a) Lacks Merit

In Ground Three (a), Petitioner argues that his constitutional rights were violated because he was not competent and because he was incapable of restoration to competency. (Doc. 1 at 8) In their Limited Answer, in addition to arguing that Ground Three (a) is procedurally defaulted, Respondents address the merits of Petitioner's Ground Three (a) claim. (Doc. 12 at 33-35) Respondents assert that Petitioner was competent to stand trial and to enter his plea agreement; that Petitioner's trial¹³ and sentencing counsel¹⁴ did not challenge Petitioner's competency because Petitioner was competent; and that Petitioner's PCR counsel reviewed Petitioner's competency and found no basis to challenge competency because Petitioner “demonstrated understanding of the legal process” and was “able to intelligently engage in the process.” (Id.) Despite Petitioner's failure to exhaust his Ground Three (a) claim, the Court may reach the merits of Petitioner's Ground Three (a) claim where the claim is clearly not meritorious. Franklin v. Johnson, 290 F.3d 1223, 1233 (9th Cir. 2002).

13 Trial counsel Mike Kessler.

14 Trial counsel Kaitlin Verdura.

Petitioner raised his Ground Three (a) claim to the superior court during his PCR proceedings as a general constitutional violation (Doc. 12-5 at 28-29) and as a claim of intellectual disability, “low mental capacity,” and incompetence (Doc. 12-5 at 13). In its June 9, 2022, order dismissing Petitioner's PCR proceedings, the superior court did not specifically address Petitioner's Ground Three (a) claim. Instead, the superior court stated:

[Petitioner] contends that his convictions and punishments were obtained in violation of his constitutional rights, thereby entitling him to Ariz. R. Crim. P. 33.1(a) relief. The exact nature of [Petitioner's] constitutional claims is not clear [... Petitioner] also makes various claims regarding violation of speedy trial rights “and errors since the day I was detained.” But as a pleading defendant, [Petitioner] waived “all non-jurisdictional defects and defenses, including claims of ineffective assistance of counsel, except those that relate to the validity of a plea.” State v. Banda, 232 Ariz. 582, 585 ¶ 12 (App. 2013)

(Doc. 12-6 at 3) To resolve on the merits, the state court “must finally resolve” a claim “on the substance of the claim, rather than on the basis of a procedural or other rule precluding state review of the merits.” Barker v. Fleming, 423 F.3d 1085, 1092 (9th Cir. 2005) (citing Lambert, 393 F.3d at 969). The superior court resolved Petitioner's Ground Three (a) claim based on waiver, not on the substance of the claim. Because no state court ruled on the merits of Petitioner's Ground Three (a) claim, this Court reviews Petitioner's Ground Three (a) claim de novo. Reynoso, 462 F.3d at 1109.

As reflected in the transcripts from the superior court proceedings, Petitioner fully participated in his settlement conference, change of plea hearing, and sentencing hearing, including by asking questions and responding to the superior court's questions. (See, e.g., Doc. 12-1 at 28-65, 78-112; Doc. 12-3 at 26-55) During his hearings, Petitioner asked clarifying questions about procedure and about the charges against him. (Doc. 12-1 at 41, 44-46, 53, 55, 59-61, 64, 84-86) Petitioner also stated that he understood explanations given by the superior court. (Doc. 12-1 at 45-46, 80-83, 88) Petitioner consulted with trial counsel Mike Kessler and Kaitlin Verdura before and during his superior court hearings. (See, e.g., Doc. 12-1 at 83-84, 87, 90-91; Doc. 12-3 at 53)

At Petitioner's settlement conference, Petitioner and his counsel Mike Kessler asked about a mitigation specialist or psychologist, and the state replied that a risk assessment would have limited value in Petitioner's case. (Doc. 12-1 at 53-57) At Petitioner's change of plea hearing, Petitioner's counsel Mike Kessler and the superior court stated that they were comfortable proceeding with Petitioner's change of pleas based on their conversations with Petitioner, including at the settlement conference. (Id. at 89-90) The transcripts in the record reflect that those conversations were extensive. (Id. at 26-66, 76-114) Petitioner stated that he was not being forced into entering his plea agreement. (Id. at 87-89, 102-03) Petitioner appropriately answered each of the superior court's questions during the change of plea hearing and stated that he understood and agreed with the terms of the plea agreement and sex offender registration addendum. (Id. at 93-109) The superior court judge found that Petitioner knowingly, intelligently, and voluntarily entered into his plea agreement. (Id. at 109) At his sentencing hearing, Petitioner read aloud letters Petitioner had written expressing remorse and acknowledging responsibility for his actions. (Doc. 123 at 42-46)

In a sentencing memo prepared in advance of Petitioner's sentencing hearing, Petitioner's counsel Kaitlin Verdura discussed Petitioner's mental health issues as a mitigating factor. (Doc. 12-2 at 7-8) At Petitioner's sentencing hearing, Petitioner's trial counsel Kaitlin Verdura again addressed Petitioner's mental health issues, including adjustment disorder resulting in discharge from the military, anxiety, depression, and suicidal ideation. (Doc. 12-3 at 39-42) In extensively working with Petitioner, neither Petitioner's trial counsel Mike Kessler nor his sentencing counsel Kaitlin Verdura challenged Petitioner's competency or requested a competency hearing or evaluation. (See Doc. 12-6 at 101-05) Further, Petitioner's PCR counsel informed Petitioner in a November 2019 letter that she could not find legal grounds to request a competency evaluation because Petitioner “demonstrated understanding of the legal process and [was] able to intelligently engage in the process.” (Doc. 12-4 at 27)

Petitioner has not made any showing that he did not have “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” or that he did not have “a rational as well as factual understanding of the proceedings against him.” Godinez, 509 U.S. at 396. Here, the record refutes Petitioner's claim of incompetency. Although Petitioner and his sentencing counsel brought attention to Petitioner's anxiety and depression, mental health issues do not alone establish that Petitioner was incompetent. See Atkins v. Virginia, 536 U.S. 304, 318 (2002) (defendants with mental health issues or deficiencies “frequently know the different between right and wrong and are competent to stand trial”); Boyde v. Brown, 404 F.3d 1159, 1166 (9th Cir. 2005) (petitioner's mental health issues and “psychic numbing” did not establish incompetency). Petitioner has not shown, nor does the record establish, that Petitioner's anxiety and depression caused Petitioner to be incompetent. Moreover, that none of Petitioner's counsel suggested that Petitioner was incompetent is indicative of Petitioner's competency throughout the superior court proceedings. See Boyde, 404 F.3d at 1167 (“most telling evidence” of competency was that neither defense counsel nor trial court hinted that petitioner was incompetent). Indeed, the record reflects that Petitioner's PCR counsel expressed her assessment that Petitioner demonstrated understanding of the legal process and intelligently engaged in the process. (Doc. 12-4 at 27)

After careful review of the record, Petitioner's Ground Three (a) claim fails on the merits.

D. Ground Three (b) Lacks Merit

In Ground Three (b), Petitioner asserts that his trial counsel¹⁵ “was ineffective by failing to challange [ sic ] [Petitioner's] restoration[.]” (Doc. 1 at 8) In their Limited Answer, in addition to arguing that Petitioner's Ground Three (b) claim is procedurally defaulted, Respondents address the merits of Petitioner's Ground Three (b) claim. (Doc. 12 at 35-36) Respondents assert that Petitioner has not established that his trial counsel was deficient and prejudiced Petitioner because Petitioner was never deemed incompetent and could not have undergone restoration to restore competency. (Id.) Despite Petitioner's failure to exhaust his Ground Three (b) claim, the Court may reach the merits of Petitioner's Ground Three (b) claim where the claim is clearly not meritorious. Franklin v. Johnson, 290 F.3d 1223, 1233 (9th Cir. 2002).

15 Petitioner does not specify whether he refers to trial counsel Mike Kessler or Kaitlin Verdura.

Petitioner raised his Ground Three (b) claim to the superior court during his PCR proceedings. (Doc. 12-5 at 28-29) The superior court did not specifically address Petitioner's Ground Three (b) claim. (Doc. 12-6 at 3-5)¹⁶ Because no state court ruled on the merits of Petitioner's Ground Three (b) claim, the Court reviews Petitioner's Ground Three (b) claim de novo. Reynoso, 462 F.3d at 1109.

16 The superior court separately addressed ineffective assistance of trial counsel insofar as Petitioner asserted (1) that trial counsel asserted that the plea agreement was the best Petitioner would receive and (2) that trial counsel committed errors that resulted in Petitioner receiving a 25-year flat sentence. (Doc. 12-6 at 4) The superior court did not address Petitioner's claim of IAC of trial counsel for failure to challenge Petitioner's restoration.

Under Strickland, Petitioner must show that trial counsel's performance was both objectively deficient (the performance prong), and that the deficient performance caused him prejudice (the prejudice prong). 466 U.S. at 687.

As discussed above, the record does not support a claim that Petitioner was incompetent during the superior court proceedings culminating in his sentencing, and Petitioner has not demonstrated that he was incompetent during such court proceedings. Further, because Petitioner was not found to be incompetent, no restoration occurred or could have occurred to restore competency. See Ariz. R. Crim. P. 11.5(b) (providing procedures for restoration where a defendant is incompetent but directing that “proceedings continue without delay” if a defendant is competent). Neither of Petitioner's trial counsel could be deficient for not raising a claim regarding restoration when there was no finding of incompetency. Gonzalez v. Knowles, 515 F.3d 1006, 1017 (2008) (“counsel cannot be deemed ineffective for failing to raise” a “meritless claim”). Further, Petitioner's counsel could not be ineffective for failure to raise an issue about Petitioner's competency on this clear record reflecting Petitioner's competency during all of the superior court proceedings.

In addition, Petitioner has not demonstrated that he was prejudiced by trial counsel's performance. Petitioner has not shown a “reasonable probability” that if his counsel had challenged Petitioner's restoration, “the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. Restoration follows a determination of incompetency, and Petitioner had not been found incompetent. Further, Petitioner has also not shown that if trial counsel had challenged Petitioner's competency, “the result of the proceeding would have been different.” Id. Petitioner does not establish that he would have been deemed incompetent had counsel challenged his competency. Nor has Petitioner shown that he would not have entered a guilty plea upon eventual restoration even if he had been found incompetent.

In sum, Petitioner has not established that his trial counsel's performances were objectively deficient and prejudicial for their not challenging Petitioner's competency to proceed. Strickland, 466 U.S. at 687. Accordingly, Petitioner's Ground Three (b) fails on the merits.

VI. CONCLUSION

For the reasons set forth above, Petitioner waived his claims asserted in Grounds One (b), Two, and Four. Further, all of Petitioner's claims (the claims raised in Grounds One through Four) are procedurally defaulted without excuse. Also, Petitioner's Ground Three claims fail on the merits. Therefore, it is recommended that the Petition be denied and dismissed with prejudice and that this matter be terminated.

Assuming the recommendations herein are followed in the District Judge's judgment, the undersigned recommends that a certificate of appealability be denied because dismissal is justified by a plain procedural bar and reasonable jurists would not find the procedural ruling debatable, because Petitioner has not “made a substantial showing of the denial of a constitutional right[,]” and because jurists of reason would not find the Court's rejection on constitutional grounds of Petitioner's Ground Three claims to be “debatable or wrong.” 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000).

IT IS THEREFORE RECOMMENDED that Gilbert Leon Vasquez'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 denied and dismissed with prejudice and that this matter be terminated.

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.