Appolon v. Shinn

Full title: Esterlin Appolon, Petitioner, v. David Shinn, [1] et al., Respondents.

Court: United States District Court, District of Arizona

Date published: Apr 28, 2021

CV-18-0357-TUC-CKJ (BGM) (D. Ariz. Apr. 28, 2021)

Opinion

CV-18-0357-TUC-CKJ (BGM)

04-28-2021

Esterlin Appolon, Petitioner, v. David Shinn, [1] et al., Respondents.

Honorable Bruce G. Macdonald, United States Magistrate Judge.

REPORT AND RECOMMENDATION

Honorable Bruce G. Macdonald, United States Magistrate Judge.

Currently pending before the Court is Petitioner Esterlin Appolon's Third Amended Petition Pursuant to 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (“Third Amended Petition”) (Doc. 32). Respondents have filed a Limited Answer to Petition for Writ of Habeas Corpus (“Answer”) (Doc. 35), and Petitioner did not reply. The Third Amended Petition (Doc. 32) is ripe for adjudication.

Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, ² this matter was referred to Magistrate Judge Macdonald for Report and Recommendation. The Magistrate Judge recommends that the District Court deny the Petition (Doc. 1). . . . . . . . . .

2 Rules of Practice of the United States District Court for the District of Arizona.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Initial Charge and Sentencing

The Arizona Court of Appeals stated the facts³ as follows:

3 As these state court findings are entitled to a presumption of correctness and Petitioner has failed to show by clear and convincing evidence that the findings are erroneous, the Court hereby adopts these factual findings. 28 U.S.C. § 2254(e)(1); Schriro v. Landrigan, 550 U.S. 465, 473-74, 127 S.Ct. 1933, 1940, 167 L.Ed.2d 836 (2007); Wainwright v. Witt, 469 U.S. 412, 426, 105 S.Ct. 844, 853, 83 L.Ed.2d 841 (1985); Cf. Rose v. Lundy, 455 U.S. 509, 519, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982).

After a jury trial, Appolon was convicted of two counts of aggravated assault.[1] The convictions were based on an incident in which Appolon shot a friend who owed him money. Before sentencing, Appolon's counsel filed a motion to withdraw because he believed that Appolon had a “colorable claim of ineffective assistance of counsel” based on his failure to watch body camera footage from one of the arresting officers. The trial court granted the motion, as well as Appolon's request to proceed pro se, but it appointed advisory counsel for Appolon. The court sentenced Appolon to concurrent prison terms of 11.25 years.

[1] A mistrial was declared during the first two trials after the juries were unable to reach verdicts.

Answer (Doc. 35), State v. Appolon, No. 2 CA-CR 2019-0222-PR, Mem. Decision (Ariz.Ct.App. March 6, 2020) (Exh. “A”) (Doc. 35-1) at 5.⁴ On October 8, 2017, prior to his sentencing, Petitioner filed a Notice of Appeal of a [sic] Order. Answer (Doc. 35), Def.'s Not. of Appeal of a Order, State v. Appolon, No. CR20151915-001 (Pima Cnty. Super. Ct. Oct. 9, 2017) (Exh. “B”) (Doc. 35-1). On November 29, 2017, the Arizona Court of Appeals dismissed this appeal as premature. Answer (Doc. 35), State v. Appolon, No. 2 CA-CR 2017-0331, Order (Ariz.Ct.App. Nov. 29, 2017) (Exh. “C”) (Doc. 35-1). On January 30, 2018, the trial court sentenced Petitioner. Answer (Doc. 35), State v. Appolon, No. CR20151915-001, Minute Entry (Pima Cnty. Super. Ct. January 30, 2018) (Exh. “D”) (Doc. 35-1). . . .

4 Page citations refer to the CM/ECF page number for ease of reference.

B. Direct Appeal

On February 6, 2018, Petitioner filed a Notice of Appeal from the judgment and sentence. See Answer (Doc. 35), Def.'s Not. of Appeal, State v. Appolon, No. CR20151915-001 (Pima Cnty. Super. Ct. Feb. 6, 2018) (Exh. “E”) (Doc. 35-1). On March 19, 2018, Petitioner filed a “Voluntary Dismissal” seeking to proceed pro se and asserting that “[t]here a [sic] egregious conflict of interest as I has [sic] filed a civil action against this court . . . I appealed this above-mention [sic] matter to [sic] Arizona State Supreme Court not this Court of Appeals.” Answer (Doc. 35), Def.'s Voluntary Dismissal at 25, State v. Appolon, No. 2 CA-CR 2018-0049 (Ariz.Ct.App. Mar. 19, 2018) (Exh. “F”) (Doc. 35-1). Petitioner further asserted that “[a]ppealing this above-mention [sic] matter in this court deem [sic] to be futility.” Id. On March 20, 2018, the Arizona Court of Appeals acknowledged Petitioner's filing, and directed appointed counsel to file a status report. Answer (Doc. 35), State v. Appolon, No. 2 CA-CR 2018-0049, Order (Ariz.Ct.App. Mar. 20, 2018) (Exh. “G”) (Doc. 35-1). On March 30, 2018, appointed counsel filed a status report confirming Petitioner's desire to proceed pro se and seeking to withdraw. Answer (Doc. 35), Status Report at 52, State v. Appolon, No. CA-CR 2018-0049 (Ariz.Ct.App. Mar. 30, 2018) (Exh. “H”) (Doc. 35-1). On April 3, 2018, the Arizona Court of Appeals granted counsel's motion to withdraw, and pursuant to Petitioner's pro se Voluntary Dismissal, dismissed the appeal. Answer (Doc. 35), State v. Appolon, No. CA-CR 2018-0049, Order (Ariz.Ct.App. Apr. 3, 2018) (Exh. “I”) (Doc. 35-1).

C. Post-Conviction Relief Proceeding

On April 20, 2018, Petitioner filed his Notice of Post-Conviction Relief (“PCR”). Answer (Doc. 35), Petr.'s Not. of PCR, State v. Appolon, No. CR20151915-001 (Pima Cnty. Super. Ct. Apr. 20, 2018) (Exh. “J”) (Doc. 35-1). On April 30, 2018, the trial court appointed PCR counsel. Answer (Doc. 35), State v. Appolon, No. CR20151915-001, Not. Re Not. of Pet. for PCR (Pima Cnty. Super. Ct. Apr. 30, 2018) (Exh. “K”) (Doc. 35-1). A year later, on April 30, 2019, the Rule 32 court issued an order addressing several motions filed by Petitioner. Answer (Doc. 35), State v. Appolon, No. CR20151915-001, Order (In Chambers) (Pima Cnty. Super. Ct. Apr. 30, 2019) (Exh. “L”) (Doc. 35-1). In providing a procedural background, the Rule 32 court observed that pursuant to Petitioner's request, it had struck the PCR Petition filed by counsel and given Petitioner until mid-May 2019 to file a supplement; however, on April 22, 2019 Petitioner had filed a “Petition for Postconviction Relief.” Id. at 68. The Rule 32 court directed Petitioner to clarify whether the April 22, 2019 petition was meant to be his initial Rule 32 petition, and if not to file a motion to withdraw. Id. at 68-69. Additionally, the Rule 32 court reminded Petitioner of the consequences, e.g., preclusive effect, of going forward with the April 22, 2019 petition. Id. at 68. On May 14, 2019, the Rule 32 court acknowledged that Petitioner had filed a motion to dismiss his initial pending Rule 32 motion. Answer (Doc. 35), State v. Appolon, No. CR20151915-001, Ruling-In Chambers Ruling Re Def.'s Mot. to Dismiss His Rule 32 Pet. (Pima Cnty. Super. Ct. May 14, 2019) (Exh. “M”) (Doc. 35-1). The Rule 32 court expressed its continued concern regarding the wisdom of Petitioner's self-representation and reiterated the impact of granting his motion to dismiss. Id. As such, the Rule 32 court delayed ruling on Petitioner's motion to dismiss and provided him another opportunity to pursue his post-conviction relief proceeding. Id. at 72.

1. PCR Petition

On May 30, 2019, Petitioner filed his Petition for PCR. See Answer (Doc. 35), Pet. for PCR, State v. Appolon, No. CR20151915-001 (Pima Cnty. Super. Ct. May 30, 2019) (Exh. “N”) (Doc. 35-1); see also Answer (Doc. 35), State v. Appolon, No. CR20151915-001, Ruling-In Chambers Ruling (Pima Cnty. Super. Ct. June 5, 2019) (Exh. “O”) (Doc. 35-1) (denying Petitioner's previously filed motion to dismiss and construing his May 30, 2019 pleading as an initial PCR petition). In his PCR Petition, Petitioner asserted three claims for relief. Answer (Doc. 35), Exh. “N” at 74. First, Petitioner alleged that “[t]here was insufficient evidence to justify a rational trier of facts [sic] to find guilt beyond a reasonable doubt of Agg[ravated] assa[ult] causing physical injury and Agg[ravated] assa[ult] wit[h] a deadly weapon under Arizona laws[.]” Id. at 74-77. Petitioner urged that the State failed to “prove the essential elements of the two counts, nor prove mens rea of the two crimes.” Id. at 75. Petitioner asserted that “[n]o confession of guilt was given by [him] at trial or at all, and/or pretrial. Id. Petitioner also argued that “[n]o gun, DNA, or other incriminating evidence such as bloody clothing was found or presented at trial[, ]” and highlighted alleged inconsistencies or weaknesses in witness testimony. Id. at 75-76. Additionally, Petitioner took issue with the cellular telephone data presented by the State. Answer (Doc. 35), Pet. for PCR, State v. Appolon, No. CR20151915-001 (Pima Cnty. Super. Ct. May 30, 2019) (Exh. “N”) (Doc. 35-1). Second, Petitioner alleged that “[t]he lack of jurisdiction of the Court to render judgment or impose sentence[.]” Id. at 74, 77- 80. Petitioner asserted that “[t]here wasn't any pretrial statement made by me of guilt or mens rea proved by the State.” Id. at 78. Petitioner further asserted that “[t]here was no witness to the crime present at [his] trial” and “the victim said he never seen who shoot [sic] him.” Id. Petitioner argued that “[o]n the face of the indictment presented at ¶ 3rd trial the Superior Court was without jurisdiction to render judgment or impose sentence.” Id. Petitioner opined that “[t]he lack of evidence . . . [was insufficient] to justify a rational trier of facts [sic] to find guilt beyond a reasonable doubt of the two counts.” Answer (Doc. 35), Pet. for PCR, State v. Appolon, No. CR20151915-001 (Pima Cnty. Super. Ct. May 30, 2019) (Exh. “N”) (Doc. 35-1) at 78. Petitioner also asserted that “[a] contract and/or waiver of right to lawyer was . . . void because I didn't want to sign it.” Id. at 79. Petitioner claimed that he “never felt right signing the waiver and/or contract I withdrawn from the waiver.” Id. Petitioner further objected to his sentencing and having to sign the appeal notice afterward. Id. at 80. Petitioner argued that “[t]he Superior Court and Marner was [sic] without jurisdiction over the cause, to render judgment or to impose sentence, subject-matter jurisdiction and jurisdiction asserted by the court offend against natural justice, and violate fundamental fairness and due process clause of the 14th of the U.S. Const.” Answer (Doc. 35), Exh. “N” at 80. Finally, Petitioner alleged that the Justice of the Peace Court lacked jurisdiction over his initial appearance or complaint. Id. at 74, 77-80. Petitioner asserted that he was arrested “without probable cause or without any officers seeing a crime being commit[ted].” Id. at 77. Petitioner further alleged that the complaint “fail[ed] to state a claim” and argued that “[t]here was no statement made by [Petitioner] or evidence that [he] intentionally, knowingly or recklessly commited [sic] A.R.S. §§ 13-1204(A)(1) and 13-1204(B)(2) or assault as prescribed [sic] by A.R.S. § 13-1203, nor was there any proof that [he] committed any violation on 4-27-15.” Answer (Doc. 35), Exh. “N” at 77- 78. Petitioner urged that the Justice of the Peace Court exercised “jurisdiction and subject-matter jurisdiction . . . in violation of fundamental fairness and due process clause of the 14th Amend of the U.S. Const.” Answer (Doc. 35), Exh. “N” at 78. Petitioner sought release from custody, to have his conviction reversed, and his arrest and conviction expunged. Id. at 81.

2. Rule 32 Interlocutory Appeal

On May 17, 2019, a Notification of Appeal was transmitted to the Arizona Court of Appeals. Answer (Doc. 35), State v. Appolon, No. 2 CA-CR 18-0125 PR, ⁵ Not. of Appeal (Ariz.Ct.App. May 17, 2019) (Exh. “P”) (Doc. 35-1). Petitioner sought to appeal the Rule 32 court's May 14, 2019 ruling. See Id. at 89-92. On May 22, 2019, the appellate court filed its order that the “Petition for Review [was] not in compliance with Rule 32.9[.]” Answer (Doc. 35), State v. Appolon, No. 2 CA-CR 2019-0125-PR, Order (Ariz.Ct.App. May 22, 2019) (Doc. 35-1) (Exh. “Q”). The appellate court gave Petitioner until June 24, 2019 “to file a Rule 32 Petition for Review in compliance with the rules.” Id. On June 27, 2019, the appellate court issued its order dismissing the petition for review due to Petitioner's failure to comply with the court's May 22, 2019 order. Answer (Doc. 35), State v. Appolon, No. 2 CA-CR 2019-0125-PR, Order (Ariz.Ct.App. June 27, 2019) (Doc. 35-1) (Exh. “R”).

5 It appears the wrong year was stamped in the case number when this document was received, as the correct case number is 2 CA-CR 2019-0125-PR.

On August 8, 2019, Petitioner filed his Petition for Review to the Arizona Supreme Court. Answer (Doc. 35), Pet. for Review, State v. Appolon, No. CR-19-0257-PR (Ariz. Aug. 8, 2019) (Doc. 35-1) (Exh. “S”). Petitioner urged that he did not receive the May 22, 2019 appellate court order and his due process and fourteenth amendment rights were therefore violated. Id. at 100. Petitioner further asserted that the Arizona Court of Appeals abused its discretion in dismissing his appeal, and the “Superior Court abused it's [sic] discretion on 4-15-10 were [sic] it made statement [sic] it has jurisdiction and were [sic] the Superior Court sricke [sic] any petition filed by [Petitioner.]” Id. On October 10, 2019, the Arizona Supreme Court denied review. Answer (Doc. 35), State v. Appolon, No. CR-19-0257-PR, Mem. (Ariz. Oct. 10, 2019) (Doc. 35-1) (Exh. “T”). On October 29, 2019, the Arizona Court of Appeals issued its mandate. Answer (Doc. 35), State v. Appolon, No. 2 CA-CR 2019-0125-PR, Mandate (Ariz.Ct.App. Oct. 29, 2019) (Doc. 35-1) (Exh. “U”).

3. Rule 32 Court Order

On June 5, 2019, the Rule 32 court acknowledged Petitioner's May 30, 2019 filing entitled “Petition for Postconviction Relief.” Answer (Doc. 35), State v. Appolon, No. CR20151915-001, Ruling-In Chambers Ruling (Pima Cnty. Super. Ct. June 5, 2019) (Exh. “O”) (Doc. 35-1). As such, the Rule 32 court denied Petitioner's previously filed motion to dismiss and considered the May 30, 2019 pleading as his initial Rule 32 PCR petition. Id. at 84. Petitioner subsequently sought to amend his petition, which the Rule 32 court allowed, and to which the State responded, and Petitioner replied. See Answer (Doc. 35), State v. Appolon, No. CR20151915-001, Under Advisement Ruling (Pima Cnty. Super. Ct. Aug. 27, 2019) (Exh. “X”) (Doc. 35-1).

On August 27, 2019, the Rule 32 court issued its order regarding Petitioner's PCR petition. See Id. As an initial matter, the Rule 32 court recognized that the Arizona Constitution granted the superior court original jurisdiction over all felony cases, and state law conferred jurisdiction upon the Arizona justice courts to conduct initial appearances. Id. at 137 (citing Ariz. Const. art. VI, § 14(4); then citing A.R.S. § 22-301(A)(2)). The Rule 32 court further observed that “[w]hile a jurisdictional challenge is available under Rule 32.1(b), it applies only to a court's ability to render judgment or to impose a sentence[, ] [and] [c]onsequently, defendant's jurisdictional argument regarding the initial appearance hearing in the Justice Court is not available.” Answer (Doc. 35), Exh. “X” at 137 (citing State v. Carriger, 143 Ariz. 142, 692 P.2d 991 (1984)). To the extent that Petitioner's “jurisdictional attack on the Justice Court's actions [was based upon] a lack of probable cause for the arrest that preceded the initial appearance hearing, ” the Rule 32 court found that such “a challenge [] could have been brought pursuant to Rule 16.2 prior to trial[, ]” and because it was not, “the argument was waived.” Answer (Doc. 35), Exh. “X” at 137.

The Rule 32 court construed Petitioner's challenge to the jurisdiction of the superior court as one “for the entry of judgment and sentencing[, ] [] based on defendant's claim that he was deprived of counsel at sentencing.” Id. at 138. The Rule 32 court observed that it “took great pains to ensure that defendant made a knowing, intelligent and voluntary decision to forego the assistance of counsel and represent himself at the priors trial and sentencing[, ]” as well as “appointed advisory counsel who remained available to assist defendant from entry of the verdict up to imposition of sentence.” Id. The Rule 32 court also reviewed the waiver form, which “simply presented a written version of the colloquy the Court held with defendant on more than one occasion to ensure he understood the gravity of his decision to represent himself.” Id. The Rule 32 court held that Petitioner had “failed to present a colorable claim that would warrant an evidentiary hearing on the jurisdiction claims or provide relief pursuant to Rule 32.1.” Id.

The Rule 32 court reviewed Petitioner's claims regarding the sufficiency of the evidence. Answer (Doc. 35), State v. Appolon, No. CR20151915-001, Under Advisement Ruling (Pima Cnty. Super. Ct. Aug. 27, 2019) (Exh. “X”) (Doc. 35-1) at 138-39. The Rule 32 court noted an insufficiency of the evidence claim required clear and convincing evidence. Id. at 139 (citing Ariz. R. Crim. P. 32.1(h)). The Rule 32 court reviewed the evidence presented at trial and held that “a reasonable jury could have readily concluded Mr. Brown's testimony that defendant shot him in the face was credible, especially with the corroborating evidence provided by the independent civilian witness and the cell phone tracking evidence.” Id. As such, the Rule 32 court denied relief. Id. at 139-40. . . . . . .

4. PCR Appeal

On September 10, 2018, Petitioner filed a motion for rehearing seeking “a rehearing of the denial of [his] PCR petition” and for the court to “amend it's [sic] previous ruling [and] grant[] [his] PCR[.]” Answer (Doc. 35), Pet.'s Mot. for Rhearing [sic] to Have Conviction Set Aside and/or Vacate [sic] and/or Petition Granted at 142, State v. Appolon, No. CR20151915-001 (Pima Cnty. Super. Ct. Sept. 10, 2019) (Exh. “Y”) (Doc. 35-1). On September 18, 2019, the Rule 32 court denied Petitioner's motion and observed that “[i]n support of his claims of error, defendant basically repeats the claims and arguments presented in his original petition and the supplement the Court allowed him to file[;] [t]he Court did not find the claims and arguments persuasive previously . . . and fails to find them persuasive in the instant motion.” Answer (Doc. 35), State v. Appolon, No. CR20151915-001, Ruling-In Chambers Ruling Re Def.'s Mot. for Rehearing (Pima Cnty. Super. Ct. Sept. 18, 2019) (Exh. “Z”) (Doc. 35-1) at 150.

On September 23, 2019, Petitioner filed a Petition for Review. Answer (Doc. 35), Pet.'s Pet. for Review, State v. Appolon, No. 2 CA-CR 19-0222-PR (Ariz.Ct.App. Sept. 23, 2019) (Doc. 35-1) (Exh. “AA”). Petitioner presented five (5) issues for review, including: 1) whether the trial court abused its discretion in denying his PCR petition; 2) whether the Justice Court abused its discretion in exercising jurisdiction over Petitioner's initial appearance; 3) whether the trial court abused its discretion “by rendering judgment and imposing sentence without jurisdiction or sufficient evidence”; 4) whether the State presented sufficient evidence to convict; and 5) whether Petitioner was denied fair and impartial treatment by the trial court. Id. at 153. Petitioner again argued that he was arrested without a warrant or summons, the complaint failed to state a claim, he had not made any statement, there was no evidence of his guilt, and the justice court lacked jurisdiction, personal and subject-matter, when it conducted his initial appearance. Id. at 153-54. Petitioner also argued that the evidence presented by the State was insufficient to convict him, thereby depriving the superior court of jurisdiction. Id. at 154-55. Petitioner noted that “[t]here was no mens rea proving [sic] at trial so the trial court was without jurisdiction to render judgment or impose sentence.” Id. at 155, 157, 162-63. Petitioner asserted that the “contract and/or waiver of right to lawyer” was void “because [he] didn't want to sign it[, ] [and] [t]he trial court obtain[ed] the sign[ed] waiver of right to lawyer and or contract through fraud, undue influence, duress, misrepresentation and over weening [sic] bargaining power.” Answer (Doc. 35), Pet.'s Pet. for Review, State v. Appolon, No. 2 CA-CR 19-0222-PR (Ariz.Ct.App. Sept. 23, 2019) (Doc. 35-1) (Exh. “AA”) at 155. Petitioner also argued that “no rational fact finder could have found [him] guilty beyond a reasonable doubt[.]” Id. at 157. Petitioner observed that “[n]o gun, DNA, or other incriminating evidence such as bloody clothing was found or presented at trial[, ]” and highlighted perceived issues with the testimony of various witnesses. Id. at 157-59. Petitioner again urged that “[t]he State didn't prove [mens rea] or the essential element of the two counts[.]” Id. at 159 (second alteration in original). Petitioner asserted that the trial court abused its discretion in denying his PCR petition. Id. at 159. In support of this allegation, Petitioner reasserted the arguments in his PCR petition and urged his disagreement with each of the trial court's findings. Id. at 159-61. Petitioner also asserted that the prosecution withheld body camera footage “for a tactical advantage.” Answer (Doc. 35), Pet.'s Pet. for Review, State v. Appolon, No. 2 CA-CR 19-0222-PR (Ariz.Ct.App. Sept. 23, 2019) (Doc. 35-1) (Exh. “AA”) at 162. Finally, Petitioner alleged that his due process rights had been violated because his conviction “had been secured by prejured [sic] testimony”; he was tried three (3) times for the same offence; and the trial court did not “independently look for errors of all the relevant file and records[.]” Id.

On March 6, 2020, the court of appeals granted reviewed and denied relief. Answer (Doc. 35), State v. Appolon, No. 2 CA-CR 2019-0222-PR, Mem. Decision (Ariz.Ct.App. Mar. 6, 2020) (Exh. “A”) (Doc. 35-1). The appellate court reviewed “the trial court's ruling summarily denying [Petitioner's] petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P.” for an abuse of discretion. Id. at 5 (citing State v. Roseberry, 237 Ariz. 507, ¶ 7 (Ariz. 2015). Regarding Petitioner's jurisdictional arguments, the appellate court observed that although the lack of subject-matter jurisdiction could be raised at any time, “personal jurisdiction may be waived if not properly raised before trial.” Id. at 7 (citing Ariz. R. Crim. P. 16.1(b); then citing State v. Marks, 186 Ariz. 139, 142 (Ariz.Ct.App. 1996); then citing Ariz. R. Crim. P. 32.1(a), 32.2(a)(3)). The court of appeals found Petitioner's argument regarding the justice court's jurisdiction precluded. Id. Like the Rule 32 court, the appellate court found Petitioner's claim “to be based on a lack of probable cause for his arrest, which constitute[d] an issue of personal jurisdiction.” Id. (citing State ex rel Baumert v. Mun. Court of City of Phoenix, 124 Ariz. 543, 546 (Ct. App. 1979)). The court of appeals held Petitioner should have raised the claim during the trial proceedings but did not. Answer (Doc. 35), Exh. “A” at 8.

The appellate court construed Petitioner's “claim that the superior court lacked jurisdiction . . . [as] based on his lack of counsel at sentencing.” Id. The appellate court observed that it failed to see how Petitioner's claim regarding his signature on the waiver of counsel form was one of jurisdiction. Id. The appellate court further noted that this argument “seem[ed] to be that his sentences were imposed in violation of the state and federal constitutions under rule 32.1(a).” Id. (citing State v. McLemore, 230 Ariz. 571, ¶¶ 21-22 (Ariz.Ct.App. 2012)). Furthermore, even if the claim were jurisdictional, the appellate court continued, “the issue seems to be one of personal jurisdiction.” Id. (citing State v. Payne, 223, Ariz. 555, ¶ 6 (Ariz.Ct.App. 2009)). Assuming that the claim were one of subject-matter jurisdiction, the appellate court held that the record demonstrated that “[d]espite the court's warnings against self-representation, Appolon confirmed multiple times during two different hearings that he wished to ‘give up [his] right to counsel and represent [himself].'” Answer (Doc. 35), Exh. “A” at 8 (citing State v. Blazak, 105 Ariz. 570, 571 (Ariz. 1970)) (alterations subsequent to the first in original). As such, the appellate court found the Rule 32 court “did not err in finding this claim not colorable.” Id.

Regarding Petitioner's challenge to the sufficiency of the evidence, the appellate court observed that “a general challenge to the sufficiency of the evidence does not, without more, constitute a viable claim under Rule 32.1(h).” Id. at 8. Because Petitioner simply pointed to evidence “that d[id] nothing more than contradict other evidence presented at trial, ” the appellate court held he “d[id] not conclusively demonstrate his innocence.” Id. at 8-9 (quoting State v. Denz, 232 Ariz. 441, ¶ 22 (Ariz.Ct.App. 2013)). Petitioner did not seek review with the Arizona Supreme Court.

D. The Instant Habeas Proceeding

On July 23, 2018, Petitioner filed his Petition Pursuant to 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 1). On August 30, 2018, the Hon. Cindy K. Jorgenson issued her Order construing Petitioner's habeas as one brought under § 2254, provided the appropriate form, and dismissed Petitioner's petition with leave to amend. Order 8/30/2018 (Doc. 6). On June 10, 2019, Petitioner filed an Amended Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 17). Petitioner's amended petition was dismissed for lack of jurisdiction due to a failure to allege a constitutional violation, and he was again given an opportunity to amend. Order 8/29/2019 (Doc. 18). On September 9, 2019, Petitioner filed his Second Amended Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 19). On the same date, Petitioner filed a motion for stay and abeyance (Doc. 20). Judge Jorgenson directed service and ordered Respondents to respond to the motion for stay. Order 12/10/2019 (Doc. 21). On February 11, 2020, the Court granted Petitioner's motion to stay. Order 2/11/2020 (Doc. 29). Once the stay was lifted, Petitioner filed his Third Amended Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 32).

First, Petitioner asserts that “[t]he Superior Court was and is without subject-matter jurisdiction over [him], the cause to render judgment and impose sentence[, ] [and] [the] [j]urisdiction assert[ed] by the Superior Court violate[d] due process of law, 14th Amend of the U.S. Const., and fundamental fairness.” Third Amended Petition (Doc. 32) at 6. In support of his claim, Petitioner alleges that he did not make any pretrial statements indicating guilt; the State did not prove mens rea; there were no witnesses to the crime presented at trial; the victim did not see who shot him; there was no proof or evidence of a violation of A.R.S. § 13-1204(A)(1) before or during trial; based on the face of the indictment, the court lacked jurisdiction to “render judgment or impose sentence”; and “[t]he Superior Court didn't have jurisdiction of the class of offense.” Third Amended Petition (Doc. 32) at 6.

Second, Petitioner asserts that “[t]here was insufficient evidence to justify a rational trier of facts to find guilt beyond a reasonable doubt . . . [in] violat[ion] of due process of law, 14th Amend of the U.S. Const., and fundamental fairness.” Id. at 7. Petitioner alleges that the State failed to prove mens rea, and reviewed the evidence put forth at trial, as well as its alleged shortcomings. Id. at 7-8.

Third, Petitioner asserts that “[t]he justic [sic] of the peace court was without subject-matter jurisdict [sic] over [him], the cause[, ] [and] [the] [j]urisdiction assert[ed] by the justic [sic] of the peace court violate[d] due process of law, 14th Amend of the U.S. Const, and fundamental fairness.” Id. at 9. Petitioner alleges that “[he] was arrested on May 8, 2015 by TPD at gun point without jurisdiction and without any officers seeing a crime being committed on 4-27-15.” Id. Petitioner further alleges that “[he] was arrested with no warrant or summons prior to [his] arrest[, ] [and] [he] was brought to the Justic [sic] Court for an initial appearance and complaint in Precint [sic] No. One Cause No. 508341 without notice.” Third Amended Petition (Doc. 32) at 9. Petitioner also alleges that “[t]here was no statement made by [him] or evidence that [he] intentionally, knowingly, or recklessly committed A.R.S. § 13-1204(A)(1) and 13-1204(A)(2) or assault as prescribed by A.R.S. § 13-1203, nor was there any proof that I committed any violation on 4-27-15.” Third Amended Petition (Doc. 32) at 9.

Fourth, Petitioner asserts “[p]rosecutorial misconduct in which [sic] violates due process of law, 14th Amend of the U.S. Const, and fundamental fairness.” Id. at 10. Petitioner alleges that two (2) trials were declared mistrials without his consent, and therefore jeopardy had attached. Id. Petitioner also argues that the State improperly presented body camera footage in the third trial against him, and that this footage was “highly exculpatory and impeachable[.]” Id. Petitioner further asserted that there was an unknown witness was present on the body camera footage that would have provided testimony favorable to Petitioner. Id. Petitioner also asserted that two witnesses “were never shown a photo line up prior to their in-court-I.D. of [Petitioner] at [] trial[] [and] [t]he State used illegal evidence to secure [his] conviction, a cell phone and cell phone data was use [sic] at [his] trial in violate [sic] of the 14th Amend, also there's no evidence of who collect [sic] the phone or where the phone came from the night of [his] arrest.” Third Amended Petition (Doc. 32) at 10.

On August 19, 2020, Respondents filed their Answer (Doc. 35), and Petitioner did not reply.

II. STANDARD OF REVIEW

A. In General

The federal courts shall “entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws of treaties of the United States.” 28 U.S.C. § 2254(a) (emphasis added). Moreover, a petition for habeas corpus by a person in state custody:

shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim - (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); see also Cullen v. Pinholster, 563 U.S. 170, 181, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011). Correcting errors of state law is not the province of federal habeas corpus relief. Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991). Ultimately, “[t]he statute's design is to ‘further the principles of comity, finality, and federalism.'” Panetti v. Quarterman, 551 U.S. 930, 945, 127 S.Ct. 2842, 2854, 168 L.Ed.2d 662 (2007) (quoting Miller-El v. Cockrell, 537 U.S. 322, 337, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)). Furthermore, this standard is difficult to meet and highly deferential “for evaluating state-court rulings, [and] which demands that state-court decisions be given the benefit of the doubt.” Pinholster, 563 U.S. at 181, 131 S.Ct. at 1398 (citations and internal quotation marks omitted).

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 110 Stat. 1214, mandates the standards for federal habeas review. See 28 U.S.C. § 2254. The “AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court.” Burt v. Titlow, 571 U.S. 12, 19, 134 S.Ct. 10, 16, 187 L.Ed.2d 348 (2013). Federal courts reviewing a petition for habeas corpus must “presume the correctness of state courts' factual findings unless applicants rebut this presumption with ‘clear and convincing evidence.'” Schriro v. Landrigan, 550 U.S. 465, 473-74, 127 S.Ct. 1933, 1940, 167 L.Ed.2d 836 (2007) (citing 28 U.S.C. § 2254(e)(1)). Moreover, on habeas review, the federal courts must consider whether the state court's determination was unreasonable, not merely incorrect. Id., 550 U.S. at 473, 127 S.Ct. at 1939; Gulbrandson v. Ryan, 738 F.3d 976, 987 (9th Cir. 2013). Such a determination is unreasonable where a state court properly identifies the governing legal principles delineated by the Supreme Court, but when the court applies the principles to the facts before it, arrives at a different result. See Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011); Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); see also Casey v. Moore, 386 F.3d 896, 905 (9th Cir. 2004). “AEDPA requires ‘a state prisoner [to] 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 . . . beyond any possibility for fairminded disagreement.'” Burt, 134 S.Ct. at 10 (quoting Harrington, 562 U.S. at 103, 131 S.Ct. at 786-87) (alterations in original).

B.Exhaustion of State Remedies

Prior to application for a writ of habeas corpus, a person in state custody must exhaust all of the remedies available in the State courts. 28 U.S.C. § 2254(b)(1)(A). This “provides a simple and clear instruction to potential litigants: before you bring any claims to federal court, be sure that you first have taken each one to state court.” Rose v. Lundy, 455 U.S. 509, 520, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982). As such, the exhaustion doctrine gives the State “the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004) (internal quotations omitted). Moreover, “[t]he exhaustion doctrine is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings.” Rose, 455 U.S. at 518, 102 S.Ct. at 1203 (internal citations omitted). This upholds the doctrine of comity which “teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.” Id. (quoting Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 590, 94 L.Ed. 761 (1950)).

Section 2254(c) provides that claims “shall not be deemed . . . exhausted” so long as the applicant “has the right under the law of the State to raise, by any available procedure the question presented.” 28 U.S.C. § 2254(c). “[O]nce the federal claim has been fairly presented to the state courts, the exhaustion requirement is satisfied.” Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). The fair presentation requirement mandates that a state prisoner must alert the state court “to the presence of a federal claim” in his petition, simply labeling a claim “federal” or expecting the state court to read beyond the four corners of the petition is insufficient. Baldwin v. Reese, 541 U.S. 27, 33, 124 S.Ct. 1347, 1351, 158 L.Ed.2d 64 (2004) (rejecting petitioner's assertion that his claim had been “fairly presented” because his brief in the state appeals court did not indicate that “he was complaining about a violation of federal law” and the justices having the opportunity to read a lower court decision addressing the federal claims was not fair presentation); Hiivala v. Wood, 195 F.3d 1098 (9th Cir. 1999) (holding that petitioner failed to exhaust federal due process issue in state court because petitioner presented claim in state court only on state grounds). Furthermore, in order to “fairly present” one's claims, the prisoner must do so “in each appropriate state court.” Baldwin, 541 U.S. at 29, 124 S.Ct. at 1349. “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.” Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004) (quoting Liebman & Hertz, Federal Habeas Corpus Practice and Procedure, § 23.3b (9th ed. 1998)).

In Arizona, however, for non-capital cases “review need not be sought before the Arizona Supreme Court in order to exhaust state remedies.” Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); see also Crowell v. Knowles, 483 F.Supp.2d 925 (D. Ariz. 2007); Moreno v. Gonzalez, 192 Ariz. 131, 962 P.2d 205 (1998). Additionally, the Supreme Court has further interpreted § 2254(c) to recognize that once the state courts have ruled upon a claim, it is not necessary for an applicant to seek collateral relief for the same issues already decided upon direct review. Castille v. Peoples, 489 U.S. 346, 350, 109 S.Ct. 1056, 1060, 103 L.Ed.2d 380 (1989).

C. Procedural Default

“A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no state remedies any longer ‘available' to him.” Coleman v. Thompson, 501 U.S. 722, 732, 111 S.Ct. 2546, 2555, 115 L.Ed.2d 650 (1991). Moreover, federal courts “will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Id., 501 U.S. at 728, 111 S.Ct. at 2254. This is true whether the state law basis is substantive or procedural. Id. (citations omitted). Such claims are considered procedurally barred from review. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

The Ninth Circuit Court of Appeals explained the difference between exhaustion and procedural default as follows:

The exhaustion doctrine applies when the state court has never been presented with an opportunity to consider a petitioner's claims and that opportunity may still be available to the petitioner under state law. In

contrast, the procedural default rule barring consideration of a federal claim applies only when a state court has been presented with the federal claim, but declined to reach the issue for procedural reasons, or if it is clear that the state court would hold the claim procedurally barred. Franklin v. Johnson, 290 F.3d 1223, 1230 (9th Cir. 2002) (internal quotation marks and citations omitted). Thus, in some circumstances, a petitioner's failure to exhaust a federal claim in state court may cause a procedural default. See Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002) (“A claim is procedurally defaulted ‘if the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.'”) (quoting Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)).

Cassett v. Stewart, 406 F.3d 614, 621 n. 5 (9th Cir. 2005). Thus, a prisoner's habeas petition may be precluded from federal review due to procedural default in two ways. First, where the petitioner presented his claims to the state court, which denied relief based on independent and adequate state grounds. Coleman, 501 U.S. at 728, 111 S.Ct. at 2554. Federal courts are prohibited from review in such cases because they have “no power to review a state law determination that is sufficient to support the judgment, resolution of any independent federal ground for the decision could not affect the judgment and would therefore be advisory.” Id. Second, where a “petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.” Id. at 735 n.1, 111 S.Ct. at 2557 n.1 (citations omitted). Thus, the federal court “must consider whether the claim could be pursued by any presently available state remedy.” Cassett, 406 F.3d at 621 n.6 (quotations and citations omitted) (emphasis in original).

Where a habeas petitioner's claims have been procedurally defaulted, the federal courts are prohibited from subsequent review unless the petitioner can show cause and actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068, 103 L.Ed.2d 334 (1989) (holding that failure to raise claims in state appellate proceeding barred federal habeas review unless petitioner demonstrated cause and prejudice); see also Smith v. Murray, 477 U.S. 527, 534, 106 S.Ct. 2661, 2666, 91 L.Ed.2d 434 (1986) (recognizing “that a federal habeas court must evaluate appellate defaults under the same standards that apply when a defendant fails to preserve a claim at trial.”). “[T]he existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986); see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally defaulting his claims of ineffective assistance of counsel, [as such] there is no basis on which to address the merits of his claims.”). In addition to cause, a habeas petitioner must show actual prejudice, meaning that he “must show not merely that the errors . . . 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, 106 S.Ct. at 2648 (emphasis in original) (internal quotations omitted). Without a showing of both cause and prejudice, a habeas petitioner cannot overcome the procedural default and gain review by the federal courts. Id., 106 S.Ct. at 2649.

The Supreme Court has recognized, however, that “the cause and prejudice standard will be met in those cases where review of a state prisoner's claim is necessary to correct ‘a fundamental miscarriage of justice.'” Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (quoting Engle v. Isaac, 456 U.S. 107, 135, 102 S.Ct. 1558, 1572-73, 71 L.Ed.2d 783 (1982)). “The fundamental miscarriage of justice exception is available ‘only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence.'” Herrara v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 862, 122 L.Ed.2d 203 (1993) (emphasis in original) (quoting Kuhlmann v. Wilson, 477 U.S. 436, 454, 106 S.Ct. 2616, 2627, 91 L.Ed.2d 364 (1986)). Thus, “‘actual innocence' is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.” Herrara, 506 U.S. at 404, 113 S.Ct. at 862. Further, in order to demonstrate a fundamental miscarriage of justice, a habeas petitioner must “establish by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found [him] guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B).

In Arizona, a petitioner's claim may be procedurally defaulted where he has waived his right to present his claim to the state court “at trial, on appeal or in any previous collateral proceeding.” Ariz. R. Crim. P. 32.2(a)(3) (2018). “If an asserted claim is of sufficient constitutional magnitude, the state must show that the defendant ‘knowingly, voluntarily and intelligently' waived the claim.” Id., 2002 cmt. Neither Rule 32.2. nor the Arizona Supreme Court has defined claims of “sufficient constitutional magnitude” requiring personal knowledge before waiver. See id.; see also Stewart v. Smith, 202 Ariz. 446, 46 P.3d 1067 (2002). The Ninth Circuit Court of Appeals recognized that this assessment “often involves a fact-intensive inquiry” and the “Arizona state courts are better suited to make these determinations.” Cassett, 406 F.3d at 622.

III. STATUTE OF LIMITATIONS

A. Timeliness

As a threshold matter, the Court must consider whether Petitioner's petition is barred by the statute of limitation. See White v. Klizkie, 281 F.3d 920, 921-22 (9th Cir. 2002). The AEDPA mandates that a one-year statute of limitations applies to applications for a writ of habeas corpus by a person in state custody. 28 U.S.C. § 2244(d)(1). Section 2244(d)(1) provides that the limitations period shall run from the latest of:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by the State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1); Shannon v. Newland, 410 F.3d 1083 (9th Cir. 2005). “The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2). Respondents do not dispute the timeliness of Appolon's petition, and the Court has independently reviewed the records and finds that the Third Amended Petition (Doc. 32) is timely pursuant to 28 U.S.C. § 2244(d)(1)(A).

IV. ANALYSIS

A. Ground One: Superior Court Jurisdiction

Petitioner asserts that “[t]he Superior Court was and is without subject-matter jurisdiction over [him], the cause to render judgment and impose sentence[, ] [and] [the] [j]urisdiction assert[ed] by the Superior Court violate[d] due process of law, 14th Amend of the U.S. Const., and fundamental fairness.” Third Amended Petition (Doc. 32) at 6. Petitioner further asserts that “the face of the indictment presented at [his] 3rd trial the Court was without jurisdiction to render judgment or impose sentence[, ] [and] [t]he Superior Court didn't have jurisdiction of the class of offense. Id. Respondents assert that review is barred because this claim is procedurally defaulted. Answer (Doc. 35) at 11-12.

1. Post-Conviction Review

In his PCR Petition, Petitioner asserted that the superior court lacked jurisdiction “to render judgment or impose sentence[.]” Answer (Doc. 35), Pet. for PCR at 74, 77-80, State v. Appolon, No. CR20151915-001 (Pima Cnty. Super. Ct. May 30, 2019) (Exh. “N”) (Doc. 35-1). The Rule 32 court recognized that the Arizona Constitution granted the superior court original jurisdiction over all felony cases. Answer (Doc. 35), State v. Appolon, No. CR20151915-001, Under Advisement Ruling (Pima Cnty. Super. Ct. Aug. 27, 2019) (Exh. “X”) (Doc. 35-1) at 137 (citing Ariz. Const. art. VI, § 14(4)). The court went on to construe Petitioner's challenge to the jurisdiction of the superior court as one “for the entry of judgment and sentencing[, ] [] based on defendant's claim that he was deprived of counsel at sentencing.” Id. at 138. Upon review of the record, the Rule 32 court held that Petitioner failed to present a colorable claim for relief. Id. The appellate court also construed Petitioner's “claim that the superior court lacked jurisdiction . . . [as] based on his lack of counsel at sentencing.” Answer (Doc. 35), State v. Appolon, No. 2 CA-CR 2019-0222-PR, Mem. Decision (Ariz.Ct.App. Mar. 6, 2020) (Exh. “A”) (Doc. 35-1) at 8. The appellate court was skeptical of the jurisdictional nature of Petitioner's argument; however, found that even if the claim were jurisdictional, “the issue seems to be one of personal jurisdiction.” Id. (citing State v. Payne, 223, Ariz. 555, ¶ 6 (Ariz.Ct.App. 2009)). Assuming that the claim were one of subject-matter jurisdiction, the appellate court upheld the Rule 32 court's decision and found that the record demonstrated that “[d]espite the court's warnings against self-representation, Appolon confirmed multiple times during two different hearings that he wished to ‘give up [his] right to counsel and represent [himself].'” Answer (Doc. 35), Exh. “A” at 8 (citing State v. Blazak, 105 Ariz. 570, 571 (Ariz. 1970)) (alterations subsequent to the first in original). In the instant habeas, Petitioner does not argue that he was deprived of counsel.

2. Procedural Default

Federal courts “will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722, 728, 111 S.Ct. 2546, 2554, 115 L.Ed.2d 650 (1991). This is true whether the state law basis is substantive or procedural. Id. (citations omitted). Such claims are considered procedurally barred from review. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). “To be adequate, the state's legal grounds for its decision must be firmly established and consistently applied.” King v. LaMarque, 464 F.3d 963, 965 (9th Cir. 2006) (citing Bennett v. Mueller, 322 F.3d 573, 583(9th Cir.2003)).

“While it is true ‘that state courts will not be the final arbiters of important issues under the federal constitution; [it is equally true] that [the federal courts] will not encroach on the constitutional jurisdiction of the states.'” Bennett, 322 F.3d at 582 (quoting Minnesota v. Nat'l Tea Co., 309 U.S. 551, 557, 60 S.Ct. 676, 84 L.Ed. 920 (1940)) (alterations in original). “It is fundamental that state courts be left free and unfettered by [the federal courts] in interpreting their state constitutions.” Bennett, 332 F.3d at 582 (quoting Michigan v. Long, 463 U.S. 1032, 1041, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983)) (alterations in original).

In his petition before this court, Petitioner only argued that the superior court lacked subject matter jurisdiction over his criminal case. See Third Amended Petition (Doc. 32) at 6. Petitioner does not assert that this violation occurred due to a deprivation of counsel. See Id. The Arizona Constitution provides that “[t]he superior court shall have original jurisdiction of . . . [c]riminal cases amounting to felony, and cases of misdemeanor not otherwise provided for by law.” Ariz. Const. art. VI, § 14(4). The Rule 32 court recognized this rule in its order. Answer (Doc. 35), State v. Appolon, No. CR20151915-001, Under Advisement Ruling (Pima Cnty. Super. Ct. Aug. 27, 2019) (Exh. “X”) (Doc. 35-1) at 137 (citing Ariz. Const. art. VI, § 14(4)). “This Court will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Coleman, 501 U.S. at 729, 111 S.Ct. at 2553. The Arizona Constitution's grant of jurisdiction to the superior court is an independent and adequate state ground, and this Court is prohibited from review. See Id. at 730, 111 S.Ct. at 2554.

3. Cause and Prejudice

Where a habeas petitioner's claims have been procedurally defaulted, the federal courts are prohibited from subsequent review unless the petitioner can show cause and actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068, 103 L.Ed.2d 334 (1989) (holding that failure to raise claims in state appellate proceeding barred federal habeas review unless petitioner demonstrated cause and prejudice). Petitioner has not met his burden to show either cause or actual prejudice. Murray v. Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986) (Petitioner “must show not merely that the errors . . . created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions”) (emphasis in original) (internal quotations omitted); see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally defaulting his claims[, ] . . . [and as such, ] there is no basis on which to address the merits of his claims.”). Neither has Petitioner “establish[ed] by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found [him] guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B). Additionally, Petitioner has not demonstrated a fundamental miscarriage of justice. “The fundamental miscarriage of justice exception is available ‘only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence.'” Herrara v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 862, 122 L.Ed.2d 203 (1993) (emphasis in original) (quoting Kuhlmann v. Wilson, 477 U.S. 436, 454, 106 S.Ct. 2616, 2627, 91 L.Ed.2d 364 (1986)). As such, Petitioner has failed to meet the cause and prejudice standard or demonstrate a fundamental miscarriage of justice. See Coleman, 501 U.S. at 748, 111 S.Ct. at 2564 (citations and quotations omitted). Accordingly, Petitioner is not entitled to habeas review.

B. Ground Two: Sufficiency of the Evidence

Petitioner asserts that “[t]here was insufficient evidence to justify a rational trier of facts [sic] to find guilt beyond a reasonable doubt.” Third Amended Petition (Doc. 32) at 7. Petitioner alleges that “the State must prove the essential elements of the two counts, and must prove mens rea, in which [sic] they didn't prove[, ]” in violation of his due process rights and fundamental fairness. Id. Respondents assert that because Petitioner failed to raise this claim to the Arizona Court of Appeals, it is technically exhausted but procedurally defaulted. Answer (Doc. 35) at 13 (citations omitted).

In his PCR Petition, Petitioner alleged that “[t]here was insufficient evidence to justify a rational trier of facts [sic] to find guilt beyond a reasonable doubt of Agg[ravated] assa[ult] causing physical injury and Agg[ravated] assa[ult] wit[h] a deadly weapon under Arizona laws[.]” Answer (Doc. 35), Pet. for PCR at 74-77, State v. Appolon, No. CR20151915-001 (Pima Cnty. Super. Ct. May 30, 2019) (Exh. “N”) (Doc. 35-1).

Petitioner argued that the State failed to “prove the essential elements of the two counts, nor prove mens rea of the two crimes, ” as well as asserted the lack of physical evidence, and highlighted alleged inconsistencies or weaknesses in witness testimony. Id. at 75-76. The Rule 32 court reviewed Petitioner's claims regarding the sufficiency of the evidence. Answer (Doc. 35), State v. Appolon, No. CR20151915-001, Under Advisement Ruling (Pima Cnty. Super. Ct. Aug. 27, 2019) (Exh. “X”) (Doc. 35-1) at 138-39. The Rule 32 court noted an insufficiency of the evidence, or actual innocence, claim required clear and convincing evidence. Id. at 139 (citing Ariz. R. Crim. P. 32.1(h)). The Rule 32 court reviewed the evidence presented at trial and held that “a reasonable jury could have readily concluded Mr. Brown's testimony that defendant shot him in the face was credible, especially with the corroborating evidence provided by the independent civilian witness and the cell phone tracking evidence.” Id. Petitioner also raised whether the State presented sufficient evidence to convict him to the Arizona Court of Appeals. Answer (Doc. 35), Pet.'s Pet. for Review at 153, State v. Appolon, No. 2 CA-CR 19-0222-PR (Ariz.Ct.App. Sept. 23, 2019) (Doc. 35-1) (Exh. “AA”). Although interwoven with his other claims, the Court finds that Petitioner presented the basis of his sufficiency of the evidence claim to the appellate court. Id. at 155, 157-59, 162-63. The appellate court observed that “a general challenge to the sufficiency of the evidence does not, without more, constitute a viable claim under Rule 32.1(h).” Answer (Doc. 35), State v. Appolon, No. 2 CA-CR 2019-0222-PR, Mem. Decision (Ariz.Ct.App. Mar. 6, 2020) (Exh. “A”) (Doc. 35-1) at 8. Because Petitioner simply pointed to evidence “that d[id] nothing more than contradict other evidence presented at trial, ” the appellate court held he “d[id] not conclusively demonstrate his innocence.” Id. at 8-9 (quoting State v. Denz, 232 Ariz. 441, ¶ 22 (Ariz.Ct.App. 2013)).

As discussed in Section IV.A.2., supra, this Court will not review a claim resolved on independent and adequate state grounds. Both the Rule 32 court and the appellate court relied on the standards set forth in Rule 32.1(h), Arizona Rules of Criminal Procedure, to assess Petitioner's sufficiency of the evidence claim. Moreover, “‘actual innocence' is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.” Herrara v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 862, 122 L.Ed.2d 203 (1993). Petitioner has not alleged a constitutional violation separate from any “actual innocence” claim.

The Arizona procedural rule is an independent and adequate state law ground precluding federal habeas review. Stewart v. Smith, 536 U.S. 856, 860, 122 S.Ct. 2578, 2581 (recognizing independence of Rule 32 procedural determinations); Carriger v. Lewis, 971 F.2d 329, 333 (9th Cir. 1992) (rejecting argument that application of Arizona procedural rules “was so unpredictable and irregular that it does not provide an adequate ground for disposal of [petitioner's] claims.”). Moreover, the appellate court was explicit in its reliance on the state procedural rule. Harris v. Reed, 489 U.S. 255, 264, 109 S.Ct. 1038, 1044, 103 L.Ed.2d 308 (1989). Because Petitioner's claim was precluded by the Arizona courts, it is procedurally defaulted. Ariz. R. Crim. P. 32.1(d)-(h), 32.2(a), 32.4; see also Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 2253-54, 115 L.Ed.2d 640 (1991) (federal courts will not review a state court decision based upon independent and adequate state law grounds, including procedural rules). As such, this Court is precluded from habeas review unless Petitioner can show cause and actual prejudice. As discussed in Section IV.A.3., supra, Petitioner has failed to show cause and actual prejudice or demonstrate a fundamental miscarriage of justice. See Murray v. Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986). As such, the Court finds that Petitioner's claim is procedurally barred, and he is not entitled to habeas review.

C. Ground Three: Justice Court Jurisdiction

Petitioner asserts that “[t]he justic [sic] of the peace court was without subject-matter jurisdict [sic] over [him], the cause[, ] [and] [the] [j]urisdiction assert[ed] by the justic [sic] of the peace court violate[d] due process of law, 14th Amend of the U.S. Const, and fundamental fairness.” Third Amended Petition (Doc. 32) at 9. Respondents assert that review is barred because this claim is procedurally defaulted. Answer (Doc. 35) at 11-12.

In his PCR Petition, Petitioner alleged that the Justice of the Peace Court lacked jurisdiction over his initial appearance or complaint. Answer (Doc. 35), Pet. for PCR at 74, 77-80, State v. Appolon, No. CR20151915-001 (Pima Cnty. Super. Ct. May 30, 2019) (Exh. “N”) (Doc. 35-1). He further alleged that he was arrested without probable cause. Id. at 77. The Rule 32 court recognized that Arizona law confers jurisdiction upon the Arizona justice courts to conduct initial appearances. Answer (Doc. 35), State v. Appolon, No. CR20151915-001, Under Advisement Ruling (Pima Cnty. Super. Ct. Aug. 27, 2019) (Exh. “X”) (Doc. 35-1) at 137 (citing A.R.S. § 22-301(A)(2)). The Rule 32 court further observed that “[w]hile a jurisdictional challenge is available under Rule 32.1(b), it applies only to a court's ability to render judgment or to impose a sentence[, ] [and] [c]onsequently, defendant's jurisdictional argument regarding the initial appearance hearing in the Justice Court is not available.” Answer (Doc. 35), Exh. “X” at 137 (citing State v. Carriger, 143 Ariz. 142, 692 P.2d 991 (1984)). To the extent that Petitioner's “jurisdictional attack on the Justice Court's actions [was based upon] a lack of probable cause for the arrest that preceded the initial appearance hearing, ” the Rule 32 court found that such “a challenge [ ] could have been brought pursuant to Rule 16.2 prior to trial[, ]” and because it was not, “the argument was waived.” Answer (Doc. 35), Exh. “X” at 137. Petitioner presented this claim to the Arizona Court of Appeals. Answer (Doc. 35), Pet.'s Pet. for Review at 153, State v. Appolon, No. 2 CA-CR 19-0222-PR (Ariz.Ct.App. Sept. 23, 2019) (Doc. 35-1) (Exh. “AA”). The appellate court found Petitioner's argument regarding the justice court's jurisdiction precluded. Answer (Doc. 35), State v. Appolon, No. 2 CA-CR 2019-0222-PR, Mem. Decision (Ariz.Ct.App. Mar. 6, 2020) (Exh. “A”) (Doc. 35-1) at 7.

As discussed in Sections IV.A. & IV.B., supra, the determinations of the state courts, based upon Arizona law and procedural rules, are independent and adequate state grounds that preclude review by this Court. Furthermore, because Petitioner's claim is procedurally barred, and he has failed to show cause and prejudice or establish a fundamental miscarriage of justice, he is not entitled to habeas review. . . .

D. Ground Four: Prosecutorial Misconduct

Petitioner asserts “[p]rosecutorial misconduct in which [sic] violates due process of law, 14th Amend of the U.S. Const, and fundamental fairness.” Third Amended Petition (Doc. 32) at 10. Respondents assert that this claim was not presented to the Arizona courts, and is therefore technically exhausted and procedurally defaulted. Answer (Doc. 35) at 13.

Prior to application for a writ of habeas corpus, a person in state custody must exhaust all of the remedies available in the State courts. 28 U.S.C. § 2254(b)(1)(A). This “provides a simple and clear instruction to potential litigants: before you bring any claims to federal court, be sure that you first have taken each one to state court.” Rose v. Lundy, 455 U.S. 509, 520, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982). Petitioner admits that he did not present this claim to the Arizona court of Appeals. Third Amended Petition (Doc. 32) at 10. As such, Petitioner's claim is “technically” exhausted and procedurally defaulted. Coleman, 501 U.S. at 735 n. 1, 111 S.Ct. at 2557 n. 1. Petitioner is not entitled to habeas review.

V. CONCLUSION

Based upon the foregoing, the Court finds that Petitioner Esterlin Appolon's habeas claims are procedurally defaulted and recommends that the Third Amended Petition (Doc. 32) be dismissed.

VI. RECOMMENDATION

For the reasons delineated above, the Magistrate Judge recommends that the District Judge enter an order DENYING Petitioner's Third Amended Petition Pursuant to 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 32).

Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2), Federal Rules of Civil Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). No. replies shall be filed unless leave is granted from the District Judge. If objections are filed, the parties should use the following case number: CV-18-0357-TUC-CKJ

Failure to file timely objections to any factual or legal determination of the Magistrate Judge may result in waiver of the right of review. Dated this 28th day of April, 2021.