Opinion
CV-21-1599-PHX-SRB (JFM)
02-22-2022
Nathaniel Wade, Petitioner v. Attorney General of the State of Arizona, et al., Respondents.
REPORT & RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS
James F. Metcalf, United States Magistrate Judge.
I. MATTER UNDER CONSIDERATION
Petitioner was convicted on an agreed guilty plea in Maricopa County Superior Court on possession of dangerous drugs for sale, and was sentenced to the agreed presumptive prison term of 10 calendar years. (Exh. VV, Mem. Dec. 5/6/21 at ¶ 2; Exh. WW, Plea Agreement; Exh. X, M.E. 8/10/18; Exh. Y, Sentence.) Although he unsuccessfully filed an interlocutory appeal, Petitioner did not file a direct appeal. (Exh. K, Appeal; Exh. M, Order 10/30/17). Petitioner did file an of-right petition for post-conviction relief, which was denied in the PCR Court and on review. (Exh. HH, PCR Pet.; Exh. QQ, Order 6/2/20; Exh VV, Mem. Dec.; Exh VV, Mandate.)
Exhibits herein are referenced as follows: to the Petition (Doc. 1) as “Exh. P-”; and to the Answer (Doc. 7), as “Exh. .” The undersigned notes that the intended Exhibit P, a minute entry, has not been provided, and instead another copy of the Motion at Exhibit O is provided. The undersigned finds no need to rely on the omitted exhibit.
Petitioner then filed the instant Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1), raising claims of improper ex parte communications by the trial judge (Ground 1), and due process violations based on the trial judge's pecuniary interest in the outcome through his participation in the state retirement funds' investments in the private prison companies (Ground 2). Respondents argue Ground 1 is without merit and Ground 2 is procedurally defaulted. (Answer, Doc. 7.) Petitioner replies that Respondents fail to allege jurisdiction, and his claims have merit. (Reply, Doc. 10.)
The undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
II. APPLICATION OF LAW TO FACTS
A. ALLEGATIONS OF JURISDICTION
Petitioner contends, in effect, that Respondents have defaulted on their defenses because they fail to show the state had jurisdiction in the criminal matter, citing inter alia Federal Rule of Evidence 302 . (Reply, Doc. 10 at 1-3.) But Rule 302 imposes no such requirement, and instead simply addresses evidentiary presumptions in a civil case. Petitioner posits no authority for the contention that Respondents must affirmatively establish jurisdiction of the state court in a habeas proceeding, and the undersigned knows of none. At best, lack of subject matter jurisdiction might be part of a ground for relief on which Petitioner would bear the burden of proof.
To the extent that Petitioner intends to raise a lack of subject matter jurisdiction by asserting it in his reply, the claim should be rejected. “The district court need not consider arguments raised for the first time in a reply brief.” Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007). Further, the time for motions to amend has expired. (See Scheduling Order 10/15/21, Doc. 6) (motions to amend due within 28 days of service of answer).
Because habeas proceedings are civil in nature, the usual civil preponderance of the evidence burden of proof applies. That is, petitioner bears the burden to establish the facts underlying his claims of constitutional error by a preponderance of the evidence. Johnson, 304 U.S. at 468-69, 58 S.Ct. 1019; McKenzie, 27 F.3d at 1419; Bellew, 532 F.2d at 1290. Respondent bears the burden of proof as to any affirmative defenses. See 2 Liebman & Hertz, supra, § 31.2 at 968.Odle v. Calderon, 65 F.Supp.2d 1065, 1069 (N.D. Cal. 1999).
B. PROCEDURAL DEFAULT - GROUND 2
Respondents argue Ground 2 (conflict of interest) was rejected by the Arizona Court of Appeals for failing to raise the claim to the PCR court, and Petitioner cannot now raise it in a subsequent PCR petition under Arizona's time and waiver (“preclusion”) bars. (Answer, Doc. 7 at 15-16.)
Petitioner must show he has properly exhausted his state remedies on his claim to be entitled to habeas relief. 28 U.S.C. § 2254(b) and (c); Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981). Ordinarily, to do so, the Arizona petitioner must fairly present his claims to the Arizona Court of Appeals, either on direct appeal or in a post-conviction relief proceeding. Castillo v. McFadden, 399 F.3d 993, 998 (9th Cir. 2005); Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994).
Here, Petitioner did not file a direct appeal. Petitioner did file an interlocutory appeal in the midst of trial, but it did not assert a conflict of interest claim. (Exh. K, Appeal.) Moreover, it was dismissed as premature. (Exh. M Order 10/30/17.)
Accordingly, it did not fairly present nor properly exhaust Petitioner's state remedies on his claim in Ground 2.
In his PCR proceeding, Petitioner filed a pro se Petition arguing ineffective assistance of counsel. (Exh. HH at 5.) In his Petition for Review to the Arizona Court of Appeals in his PCR proceeding, Petitioner alleged, inter alia, that the trial judge was paid based on sentence lengths, and had a pecuniary interest through the state pension funds' investments in the private prison corporations. (Exh. RR, Pet. Rev. at 2, 4.) The state court rejected these claims as follows:
Appointed PCR counsel had filed a Notice of Completion of Review (Exh. FF) evidencing an inability to find a colorable claim for review.
¶7 Wade asserts that the superior court's pay structure deprived it of jurisdiction, but he fails to provide factual support for his assertion that judges are paid for imposing prison terms. We do not further address this claim, however, because Wade did not first present it to the superior court, and a petition for review may not include new arguments that were not first presented in the petition for post-conviction relief. See Ariz. R. Crim. P. 33.16(c)(2)(B) (limiting
petition for review to "issues the trial court decided"); State v. Ramirez, 126 Ariz. 464, 468 (App. 1980).(Exh. VV, Mem. Dec. at ¶ 7.) Thus, Petitioner's claim in Ground 2 was rejected as not properly presented.
Respondents do not argue, and the undersigned does not conclude, that this amounted to a final determination on the merits of Petitioner's claim, sufficient to either exhaust his state remedies, or to bar it from consideration on habeas as procedurally barred under the independent and adequate state ground doctrine.
Indeed, presentation to the Arizona Court of Appeals for the first time is not fair presentation sufficient to exhaust an Arizona state prisoner's remedies. "Submitting a new claim to the state's highest court in a procedural context in which its merits will not be considered absent special circumstances does not constitute fair presentation." Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994) (citing Castille v. Peoples, 489 U.S. 346, 351 (1989)). In Casey v. Moore, 386 F.3d 896 (9th Cir. 2004), the court reiterated that to properly exhaust a claim, "a petitioner must properly raise it on every level of direct review." Id. at 916.
Academic treatment accords: The leading treatise on federal habeas corpus states, “Generally, a petitioner satisfies the exhaustion requirement if he properly pursues a claim (1) throughout the entire direct appellate process of the state, or (2) throughout one entire judicial postconviction process available in the state.”Id. (quoting Liebman & Hertz, Federal Habeas Corpus Practice and Procedure, § 23.3b (4th ed. 1998) (emphasis added)).
Respondents argue the claim is now procedurally defaulted. Where a petitioner has failed to properly exhaust his available administrative or judicial remedies, and those remedies are now no longer available because of some procedural bar, the petitioner has "procedurally defaulted" and is generally barred from seeking habeas relief. Reed v. Ross, 468 U.S. 1, 11 (1984). Indeed, under Arizona's waiver and timeliness bars, Petitioner can no longer seek review by a subsequent PCR Petition.
Under the waiver rules applicable to Arizona's post-conviction process, a claim may not ordinarily be brought in a petition for post-conviction relief that "has been waived at trial, on appeal, or in any previous collateral proceeding." Ariz.R.Crim.P. 32.2(a)(3). Under this rule, some claims may be deemed waived if the State simply shows "that the defendant did not raise the error at trial, on appeal, or in a previous collateral proceeding." Stewart v. Smith, 202 Ariz. 446, 449, 46 P.3d 1067, 1070 (2002) (quoting Ariz.R.Crim.P. 32.2, Comments). For others of "sufficient constitutional magnitude," the State "must show that the defendant personally, ''knowingly, voluntarily and intelligently' [did] not raise' the ground or denial of a right." Id. That requirement is limited to those constitutional rights “that can only be waived by a defendant personally.” State v. Swoopes, 216 Ariz. 390, 399, 166 P.3d 945, 954 (App.Div. 2, 2007). In coming to its prescription in Stewart v. Smith, the Arizona Supreme Court identified: (1) waiver of the right to counsel, (2) waiver of the right to a jury trial, and (3) waiver of the right to a twelve-person jury under the Arizona Constitution, as among those rights which require a personal waiver. 202 Ariz. at 450, 46 P.3d at 1071. Here, Petitioner's claim in Ground 2 is not of the sort requiring a personal waiver.
Even if not barred by preclusion, Petitioner would now be barred from raising his claims by Arizona's time bars . Ariz.R.Crim.P. 32.4 requires that petitions for post-conviction relief (other than those which are “of-right”) be filed “within ninety days after the entry of judgment and sentence or within thirty days after the issuance of the order and mandate in the direct appeal, whichever is the later.” See State v. Pruett, 185 Ariz. 128, 912 P.2d 1357 (App. 1995) (applying 32.4 to successive petition, and noting that first petition of pleading defendant deemed direct appeal for purposes of the rule). That time has long since passed.
Rules 32.2 and 32.4(a) do not bar dilatory claims if they fall within the categories of excepted claims specified in Ariz.R.Crim.P. 32.1(d) through (h). See Ariz. R. Crim. P. 32.2(b) (exceptions to preclusion bar); Ariz. R. Crim. P. 32.4(a) (exceptions to timeliness bar). Petitioner has not asserted that any of these exceptions are applicable to his claims. None apply. Paragraph 32.1 (d) (expired sentence) has no application to an Arizona prisoner who is simply attacking the validity of his conviction or sentence. Paragraph (e) (newly discovered facts) has no application because Petitioner has long ago asserted the facts underlying his claims. Paragraph (f) (faultless untimeliness) has no application because petitioner filed a timely notice of of-right post-conviction relief. Paragraph (g) (change in law) has no application because Petitioner has not asserted a change in the law since his last PCR proceeding. Finally, paragraph (h) (actual innocence) has no application to the procedural claim Petitioner asserts Ground 2.
Therefore, none of the exceptions apply, and Arizona's time and waiver bars would prevent Petitioner from returning to state court. Thus, Petitioner's claim in Ground 2 is now procedurally defaulted.
If the habeas petitioner has procedurally defaulted on a claim, or it has been procedurally barred on independent and adequate state grounds, he may not obtain federal habeas review of that claim absent a showing of “ cause and prejudice ” sufficient to excuse the default. Reed v. Ross, 468 U.S. 1, 11 (1984). Petitioner posits no cause for his failure to properly exhaust his state remedies on Ground 2.
Failure to establish cause may be excused “in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent .” Murray v. Carrier, 477 U.S. 478, 496 (1986) (emphasis added). Such a claim must be “new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). Petitioner posits no new reliable evidence of his actual innocence.
Accordingly, Ground 2 must be dismissed with prejudice as procedurally defaulted.
C. EX PARTE COMMUNICATIONS - GROUND 1
In Ground 1, Petitioner argues his due process rights were violated when the PCR court engaged in prejudicial ex parte communications with the prosecution on an extension of time to respond to his PCR petition. (Petition, Doc. 1 at 6-7.) The Arizona Court of Appeals rejected this claim on review in the PCR proceedings.
¶8 Wade next claims that improper ex parte communication between the court and the State deprived him of due process, but
Wade's advisory counsel was included on the purportedly ex parte email. Although Wade argues that notice to advisory counsel was inadequate because Wade was representing himself and was unable to contact the advisory attorney, under the circumstances, the court's email to the State did not constitute an improper ex parte communication. Cf State v. Delvecchio, 110 Ariz. 396, 402 (1974) (finding no error where the superior court directed advisory counsel to represent pro per defendants while the defendants were absent from the proceedings); Ariz. R. Crim. P. 6.l(c) (requiring the superior court to "give advisory counsel the same notice that is given to the [self-represented] defendant"). Moreover, Wade had a full and fair opportunity to challenge the State's late response, and he has not shown that notice of the email provided to him personally at the same time as to advisory counsel would have led to a different outcome. See McElhanon v. Hing, 151 Ariz. 403, 413 (1986) (requiring a showing of actual prejudice related to ex parte communication).(Exh. VV, Mem. Dec. at ¶ 8.) Petitioner is entitled to relief in this habeas proceeding only if he can show this merits decision by the state court was contrary to or an unreasonable application of Supreme Court law, or based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d).
Indeed, the Court's Order setting a reply deadline directed:
Respondents generally argue the state courts rejected these claims on the merits and that Petitioner cannot meet the requirements for relief under 28 U.S.C. § 2254(d) (i.e. showing the last reasoned state court decision on the claim was: (1) contrary to or an unreasonable application of Supreme Court law; or (2) based on an unreasonable determination of the facts in light of the evidence before them). Petitioner's Reply should, at a minimum, demonstrate (for each of his claims for relief) how this standard is met, or why it does not apply.(Order 11/24/21, Doc. 8 at 1.)
Petitioner's reply points to no remediable errors in the appellate court's decision. Rather he simply reargues the purported merits of his claim. (Reply, Doc. 10 at 6.) Nor does Petitioner explain how the state court's decision was contrary to, or an unreasonable application of U.S. Supreme Court law.
The undersigned has been unable to identify any Supreme Court decision addressing whether communication through advisory counsel (with or without access to advisory counsel by the defendant) is sufficient to treat a communication as ex parte.
Moreover, the undersigned has identified no Supreme Court law dealing with due process claims based on ex parte communications between the prosecution and the court. Cf. United States v. Wolfson, 634 F.2d 1217 (9th Cir. 1980) (identifying circuit court decisions addressing ex parte communications). Even if this Court could rely on general due process prescriptions of notice and an opportunity to be heard, any such violations would be subject to the requirement that Petitioner show prejudice. Brecht v. Abrahamson, 507 U.S. 619, 638 (1993).
Here, Petitioner shows no prejudice beyond a hoped-for default win. But Petitioner proffers no reason to believe that had he been heard he would have convinced the PCR court to deny the state's motion for an extension.
Nor is the pertinent inquiry whether Petitioner lost a default win on his petition. Prejudice from belated actions by the government “does not mean the loss of an opportunity for an unearned windfall. Prejudice results when a party experiences an unfair or unreasonable impairment of his defense.” United States v. Trant, 924 F.3d 83, 91 (3d Cir. 2019) (addressing prejudice from grant of prosecutions' motion to reopen case-in-chief). Here, Petitioner was permitted to reply in support of his PCR petition.
Moreover, Petitioner proffers nothing to show that in the absence of a response his PCR petition would have been granted. The Arizona Rules of Criminal Procedure make no provision for a default judgment in a PCR proceeding. Cf. Ariz. R. Crim. Proc. 32.11(a) (permitting summary disposition only where there is no claim entitling petitioner to relief).
Petitioner fails to show he is entitled to relief on Ground 1 and it must be denied.
III. CERTIFICATE OF APPEALABILITY
“Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id.
Assuming the recommendations herein are followed in the district court's judgment, that decision will be in part on procedural grounds, and in part on the merits. Under the reasoning set forth herein, jurists of reason would not find it debatable whether the district court was correct in its procedural ruling, and jurists of reason would not find the district court's assessment of the constitutional claims debatable or wrong. Accordingly, to the extent that the Court adopts this Report & Recommendation as to the Petition, a certificate of appealability should be denied.
IV. RECOMMENDATION IT IS THEREFORE RECOMMENDED:
(A) Ground 2 of Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) be DISMISSED WITH PREJUDICE.
(B) The balance of Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) be DENIED.
(C) To the extent the foregoing findings and recommendations are adopted in the District Court's order, a Certificate of Appealability be DENIED.
V. EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.
However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See also Rule 8(b), Rules Governing Section 2254 Proceedings. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”