Opinion
CV 23-08018 PCT DWL (CDB)
09-05-2023
Charles Buffington, Petitioner, v. Ryan Thornell, Director of Arizona Department of Corrections, Kris Mayes, Attorney General of Arizona, Respondents.[1]
REPORT AND RECOMMENDATION
CAMILLE D. BIBLES, UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE DOMINIC W. LANZA:
Petitioner Charles Buffington, who is represented by counsel, seeks relief from a sentence imposed by the Arizona state court pursuant to to 28 U.S.C. § 2254. Respondents have answered the petition and Buffington has docketed a reply.
I Background
The Arizona Court of Appeals reported the evidence presented at Buffington's trial and his state criminal proceedings as follows:
In November 2015, Buffington and his friend William Wilson, together with two females, S.F. and K.A., met at a hotel and engaged in sexual activity. At the time, K.A. was 16 years old. Buffington and Wilson
later persuaded S.F. and K.A. to work as prostitutes, posting provocative pictures of S.F. and K.A. on websites commonly used to solicit “johns” and arranging for prostitution “dates” using discreet phone applications. S.F. and K.A. engaged in frequent acts of prostitution under Buffington and Wilson's direction for approximately seven months.
In September 2016, an adult victim (S.C.) informed the police about this prostitution operation. The State charged Buffington with two counts of sex trafficking (Counts 1 and 3), two counts of conspiracy to commit sex trafficking (Counts 2 and 4), child prostitution (Count 5), conspiracy to commit child prostitution (Count 6), three counts of conspiracy to commit receiving earnings of a prostitute (Counts 7-9), one count of receiving earnings of a prostitute (Count 10), conspiracy to commit transporting persons for purpose of prostitution or other immoral purpose (Count 11), and four counts of conspiracy to commit pandering (Counts 12-15).
At trial, the superior court granted Buffington's motion for judgment of acquittal on Count 8 and dismissed Count 15 on the State's motion. The jury acquitted Buffington of Counts 1 and 3 but convicted him of the remaining charges. [On July 24, 2019, [t]he court sentenced Buffington to an aggregate prison term of 19.5 years and he timely appealed.State v. Buffington, 2021 WL 2425895, at *1 (Ariz.Ct.App. June 15, 2021).
See ECF No. 10-1 at 71.
On appeal Buffington argued “the crime of child prostitution is not a strict liability offense” and, therefore, that “under the charged statute of 32-3212(A)(1) the jury should have been given the instruction that the defendant/appellant knew or should have known about the victim's age at that time.” (ECF No. 10-1 at 80, 94-102). Buffington summarily asserted “the trial court erroneously relied on the wrong statute and gave an improper instruction to the jury,” with regard to his knowledge of the victim's age, denying him “due process as guaranteed under the United States Constitution.” (ECF No. 10-1 at 101). Buffington also alleged he “was unduly prejudiced by an all-white jury pool.” (ECF No. 10-1 at 80, 102-05). The only federal court opinions cited in Buffington's appellate brief were Batson v. Kentucky, 476 U.S. 79 (1986), Johnson v. California, 545 U.S. 162 (2005), Miller-El v. Dretke, 545 U.S. 231 (2005), and Strauder v. West Virginia, 100 U.S. 303 (1880); Buffington cited to these cases in support of his argument that he was unduly prejudiced “by an all-white jury pool.” (ECF No. 10-1 at 102-03).
In his appellate brief Buffington asserted: “The State waited until the eve of trial to present evidence to the court that the Defendant/Appellate knew about Katie's age; therefore, stripping defense counsel of adequate defenses to present to the trial court.” (ECF No. 10-1 at 99).
The Arizona Court of Appeals affirmed Buffington's convictions, finding and concluding:
As stated in A.R.S. § 13-3212(A)(1), [footnote 1: When Buffington committed these crimes, § 13-3212 used the term “child prostitution” to describe the offense. Effective August 9, 2017, the legislature amended the statute and changed the name of the offense to “child sex trafficking.” 2017 Ariz. Sess. Laws, ch. 167, § 10 (1st Reg. Sess.). Because the amendment did not substantively alter the statutory provisions material to this decision, we cite the current version of the statute. For consistency with the record, however, we use “child prostitution” to describe the offenses in this case.] a person commits child prostitution by “knowingly ... causing any minor to engage in prostitution.” Minor is defined as “a person under the age of eighteen years.” A.R.S. § 1-215(21). The superior court instructed the jury that “[t]he crime of Child Prostitution requires proof that the defendant knowingly caused a minor to engage in prostitution,” mirroring § 13- 3212(A)(1). The court also told the jury “[i]t is not a defense to the charges involving a Minor or a Child that the defendant did not know or had no reason to know the age of the Minor or Child.”
Buffington argues the “knowingly” mental state contained in § 13-3212(A)(1) necessarily applies to each element of the offense. He contends the superior court erred by (1) denying his request to instruct the jury the State was required to prove he “knew or should have known” K.A. was a minor for Counts 5 and 6, and (2) sentencing him to consecutive prison terms on those counts because the State failed to prove he knew K.A.'s age.
This issue, however, was recently addressed by this court in State v. Hood, 251 Ariz. 57 (App. 2021). In Hood, we held that the crime of child prostitution does “not require proof that a defendant knew the victim was a minor at the time of the sexual conduct.” Id. at 59, ¶ 1. We reasoned that the plain language of § 13-3212(A)(1) “only requires proof that the defendant intentionally or knowingly engaged in sexual conduct with the victim,” and “[h]ad the legislature intended to require the State to prove a defendant knew the victim was a minor, ... it would have said so explicitly in the statute.” Id. at 60, ¶ 9 (citing State v. Gamez, 227 Ariz. 445, 450, ¶ 30 (App. 2011)). We see no reason to depart from this analysis.
Because knowledge of a victim being a minor is not an element of § 13-3212(A)(1), the superior court's jury instructions accurately stated the law. Likewise, the court did not err in imposing consecutive sentences on Counts 5 and 6. . . .Buffington, 2021 WL 2425895, at *1-2. The appellate court also denied relief on Buffington's Batson claim regarding the racial composition of the jury pool. Id. at *2-3.
Buffington obtained different counsel and sought review in Arizona Supreme Court, seeking to be resentenced. In his petition for review Buffington asserted “[t]he trial court inappropriately instructed the jury regarding the applicable defenses pertaining to Mr. Buffington's mental state.” (ECF No. 10-1 at 156-59). Buffington also alleged “[t]he court of appeals employed an inappropriate statutory analysis of the elements of Mr. Buffington's charge.” (ECF No. 10-1 at 159-65). Buffington's brief on review to the state supreme court did not cite to any federal legal opinion or federal constitutional guarantee. (ECF No. 10-1 at 152-65). The Arizona Supreme Court denied review on May 4, 2022 (ECF No. 10-1 at 168).
Buffington was represented by Mr. Zickerman in his proceedings before the Arizona Court of Appeals (ECF No. 10-1 at 145), and Ms. Dumond represented Buffington in his proceedings before the Arizona Supreme Court (ECF No. 10-1 at 152).
Buffington did not seek state post-conviction relief pursuant to Rule 32 of the Arizona Rules of Criminal Procedure.
In his federal habeas petition Buffington asserts:
The Arizona Court of Appeals incorrectly interpreted A.R.S. § 13-3212(A)(1), and it is a violation of Petitioner's due process to be charged for an offense that he was given no fair warning of the nature of, as the knowledge required by the Court the Appeals contravenes the statute. U.S. Const. amend. XIV ... The Due Process Clause of the United States Constitution requires criminal statutes to be drafted with sufficient clarity so that ordinary individuals can intelligently choose in advance what course of conduct is lawful for one to pursue. No one shall be required, at the risk of his liberty, to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the statute commands or forbids. The analysis begins with the language of the statute, and when statutory language is plain then it must be enforced according to its terms. Because the Arizona Court of Appeals interpretation of A.R.S. § 13-3212(A)(1) contradicts the plain language of the statute, it violated Mr. Buffington's due process rights.
***
The Court of Appeals' interpretation of A.R.S. § 13-3212(A)(1) changed the meaning of the statute to encompass a broader range of conduct than is
criminalized under the clear text of the statute, which is a violation of Mr. Buffington's due process right to be giving a fair warning of the nature of the offense with which he was charged.(ECF No. 1 at 4-5).
In support of this claim Buffington cites two cases involving a federal criminal statute, in cases involving a direct appeal of a conviction by a federal criminal court, i.e., Rehaif v. United States, 139 S.Ct. 2191 (2019) and Flores-Figueroa v. United States, 556 U.S. 646 (2009). Buffington also cites Duncan v. Walker, 533 U.S. 167 (2001), a case interpreting 28 U.S.C. § 2244(d)(2). Duncan considered a decision of the district court finding the statute of limitations had run in a § 2254 action. None of these cases speak to the issue of a state criminal court's interpretation of the necessary mens rea in its own criminal statutes and the deference a federal habeas court must show to that interpretation.
Buffington also contends:
Petitioner's conviction under Count 5 and 6 violates his federal constitutional right to due process where the jury was incorrectly instructed of the proper mens rea element to his charge under A.R.S. § 13-3212(A)(1) and erred in not instructive the jury as to his applicable affirmative defense of knowledge of the victim's age. U.S. Const. amend. XIV.... Petitioner did not know K.A.'s age at any time during the commission of his crimes. A.R.S. § 13-3212(A) requires the State prove beyond a reasonable doubt that a person commits child prostitution by knowingly causing any minor to engage in prostitution. Additionally, the knowledge that a person is a minor aged 15, 16, or 17 is used as an enhanced sentencing provision, which made Petitioner's conviction an enhanced Class Two Felony. However, in order to use the enhance the charge [sic] and sentence the State had to demonstrate Petitioner knew that K.A. was 17 years old. The jury was never instructed that knowledge was an element of Count 5 and 6 requiring the State to prove the mens rea element beyond a reasonable doubt.(ECF No. 1 at 6-7) (emphasis in original). Buffington maintains he was improperly sentenced because his sentence was enhanced “without a jury finding a required element of the charge, that Mr. Buffington knew the age of the victim. U.S. Const. amend. XIV.” (ECF No. 1 at 7).
Respondent contends:
In his habeas petition, Buffington alleges three separate violations of his right to Due Process under the Fourteenth Amendment, but each ground turns on the same contention-that the Court of Appeals erroneously interpreted a state statute. Doc. 1, at 4-7. Buffington failed to fairly present a
federal due process claim to the state courts and is now procedurally barred from doing so.
Additionally, Buffington never argued the claim raised in Ground 1- that his due process rights were violated by being “charged for an offense that he was given no fair warning of the nature of.” Compare Doc. 1 at 4, with Exh. J, at 15-23; see also Exh. L, at 3, ¶ 7 (Arizona Court of Appeals listing Buffington's two claims related to the child prostitution statute). Finally, although he frames the three grounds as federal constitutional violations, Buffington is merely challenging the state courts' interpretation of a state statute, which is not cognizable on federal habeas review. Accordingly, all three grounds in the habeas petition are procedurally defaulted and noncognizable(ECF No. 10 at 7). Respondents also assert:
.. although Buffington contends he raised his claim in Ground 1 on direct appeal, see Doc. 1 at 4-5, the record shows otherwise. Buffington never raised any claim related to being “charged for an offense that he was given no fair warning of the nature of,” let alone a federal due process claim. Doc. 1 at 4; see also Exh. L, at ¶ 7 (listing Buffington's claims).
Second, Buffington's one reference to “due process” in his opening brief appeared at the end of his claim that the trial court gave an erroneous jury instruction. See Exh. J, at 23. This one sentence was divorced from any articulated federal legal theory and constitutes a “drive-by” citation of a federal constitutional provision. See Castillo, 399 F.3d at 1002-03.
Buffington's argument on direct appeal was based solely on the interpretation of a state statute, not on any federal constitutional claim. See Exh. J, at 16-19. As such, Buffington failed to fairly present his federal constitutional claim in state court and all three grounds in his habeas petition are unexhausted.(ECF No. 10 at 9). Respondents further contend:
Finally, although Buffington frames his three Grounds as violations of the Due Process Clause of the Fourteenth Amendment, he merely attempts to relitigate the state court's interpretation of a state statute. See, e.g. Doc. 1, at 4 (arguing the Arizona Court of Appeals erroneously interpreted A.R.S. § 133212 in another case-Hood). This is not a federal constitutional issue and is therefore noncognizable on habeas review.(ECF No. 10 at 10)
II Analysis
Absent specific circumstances, the Court may only grant federal habeas relief on a claim which has been “properly” exhausted in the state courts. See, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). To properly exhaust a federal habeas claim, the petitioner must afford the state courts the opportunity to rule upon the merits of the claim by “fairly presenting” the claim to the state's “highest” court in a “procedurally correct” manner. E.g., Castille v. Peoples, 489 U.S. 346, 351 (1989); Rose v. Palmateer, 395 F.3d 1108, 1110 (9th Cir. 2005). In noncapital cases arising in Arizona, the “highest court” test is satisfied if the habeas petitioner presented his claim to the Arizona Court of Appeals in his direct appeal or a properly-filed state action for post-conviction relief. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Date v. Schriro, 619 F.Supp.2d 736, 762-63 (D. Ariz. 2008).
To fairly present a claim in the state courts, thereby exhausting the claim, the petitioner must present to the state courts the “substantial equivalent” of the claim presented in federal court. Picard v. Connor, 404 U.S. 270, 278 (1971); Libberton v. Ryan, 583 F.3d 1147, 1164 (9th Cir. 2009). Full and fair presentation requires a petitioner to reference, in the state court, the same operative federal constitutional guarantee relied on by the petitioner in his § 2254 petition; additionally, in both the state court action and his § 2254 petition the petitioner must the same facts supporting the claim. See Walden v. Shinn, 990 F.3d 1183, 1195 (9th Cir. 2021); Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009). The fair presentation requirement mandates that a state prisoner alert the state appellate court to the presence of a specific federal claim in his appellate brief; simply labeling a claim “federal” or “constitutional” or expecting the state court to read beyond the four corners of the petition is insufficient to exhaust a federal constitutional claim in the state courts. See, e.g., Baldwin v. Reese, 541 U.S. 27, 33 (2004) (emphasis added).
A federal habeas petitioner has not exhausted a federal habeas claim if he still has the right to raise the claim “by any available procedure” in the state courts. 28 U.S.C. § 2254(c). Because the exhaustion requirement refers only to remedies still available to the petitioner at the time they file their action for federal habeas relief, it is satisfied if the petitioner is procedurally barred from pursuing their claim in the state courts. See, e.g., Woodford v. Ngo, 548 U.S. 81, 92-93 (2006). If it is clear the habeas petitioner's claim is procedurally barred pursuant to state law, the claim is exhausted by virtue of the petitioner's “procedural default” of the claim. See, e.g., id., 548 U.S. at 92.
[The federal courts] recognize two types of procedural bars: express and implied. An express procedural bar occurs when the petitioner has presented his claim to the state courts and the state courts have relied on a state procedural rule to deny or dismiss the claim. An implied procedural bar, on the other hand, occurs when the petitioner has failed to fairly present his claims to the highest state court and would now be barred by a state procedural rule from doing so.Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). Pursuant to this doctrine, an implied procedural bar may be applied to unexhausted claims where, as in this matter, a state's procedural rules regarding waiver and the preclusion of claims make a return to state court futile. Coleman, 501 U.S. at 735 n.1; Franklin v. Johnson, 290 F.3d 1223, 1230-31 (9th Cir. 2002).
If a prisoner has procedurally defaulted a claim in the state courts, review of the merits of the claim is barred absent a showing of both cause and prejudice. E.g., Ellis v. Armenakis, 222 F.3d 627, 632 (9th Cir. 2000). Under the “cause” prong of this test, the petitioner bears the burden of establishing that some objective factor external to the defense impeded his compliance with Arizona's procedural rules. See Moorman v. Schriro, 426 F.3d 1044, 1058 (9th Cir. 2005); Vickers v. Stewart, 144 F.3d 613, 617 (9th Cir. 1998); Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996). Examples of cause sufficient to excuse a procedural default include a showing that the factual or legal basis for a claim was not reasonably available, or that “some interference by officials” made compliance with the State's procedural rules impracticable. Murray v. Carrier, 477 U.S. 478, 488 (1986). To establish prejudice, a habeas petitioner must show the alleged error “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Id. at 494 (internal quotations and emphasis omitted). See also Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011). It is the petitioner's burden to establish both cause and prejudice with regard to their procedural default of a federal habeas claim in the state courts. See Djerf v. Ryan, 931 F.3d 870, 880 (9th Cir. 2019); Date, 619 F.Supp.2d at 766.
Petitioners who default federal habeas claims may also obtain review if they show that a failure to consider the claims would result in a fundamental miscarriage of justice. See, e.g., Bradford v. Davis, 923 F.3d 599, 610 (9th Cir. 2019). A petitioner meets the “fundamental miscarriage of justice” exception only by establishing that, under the probative evidence, he has a colorable claim of factual, rather than legal, innocence. Bousley v. United States, 523 U.S. 614, 623 (1998) (stating that “actual innocence means factual innocence, not mere legal insufficiency”); Cook v. Schriro, 538 F.3d 1000, 1028 (9th Cir. 2008). See also Valencia v. Ryan, 2012 WL 1681991, at *4 (D. Ariz. Jan. 9, 2012). Because the required showing is one of factual innocence, to surmount a procedural default the petitioner must present “‘new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eye-witness accounts, or critical physical evidence-that was not presented at trial.'” Cook, 538 F.3d at 1028, quoting Schlup v. Delo, 513 U.S. 298, 324 (1995). See also McQuiggin v. Perkins, 569 U.S. 383, 399 (2013); Lee v. Lampert, 653 F.3d 929, 945 (9th Cir. 2011). To pass through the actual innocence/Schlup gateway to a hearing on the merits of the defaulted claim, 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. The miscarriage of justice exception to the procedural default rule “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).
In his appellate brief Buffington argued the state trial court misinterpreted and misapplied the relevant state statute and failed to properly instruct the jury as to the elements of the crime. Buffington did not mention the Fifth or Fourteenth Amendments to the United States Constitution nor did he cite to any opinion of a federal court. Buffington did assert, in the last sentence of this portion of his appellate brief, that “the trial court erroneously relied on the wrong statute and gave an improper instruction to the jury,” and that as a result he “was denied due process as guaranteed under the United States Constitution.” (ECF No. 10-1 at 101). However, this “general appeal” does not satisfy the exhaustion requirement that the same specific constitutional theory argued in the federal habeas action be presented to the state court. To fairly present a federal constitutional claim in the state courts the petitioner must “plainly” identify a specific federal constitutional guarantee in his state court pleading. “Exhaustion demands more than drive-by citation, detached from any articulation of an underlying federal legal theory.” Castillo v. McFadden, 399 F.3d 993, 1002 (9th Cir. 2005). See also Fields v. Waddington, 401 F.3d 1018, 1021 (9th Cir. 2005); Solis v. Garcia, 219 F.3d 922, 929 (9th Cir. 2000); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). Accordingly, Buffington failed to exhaust a federal constitutional claim regarding any violation of his right to due process in the state courts.
In his reply, Buffington does not address cause for nor prejudice arising from his procedural default of his claim, but instead argues that he did properly exhaust a due process claim in the state courts, noting that in his petition for review to the Arizona Supreme Court he asserted:
Accepting the Court of Appeals construction of 13-3212(A)(1) raises grave constitutional issues about proper notice to potential defendants. Indeed, it was improper for the Court of Appeals to void half of the statute and impute such terms such as “with into the Statute where the legislature did not intend for them to be. Granted, the interpretation the Court of Appeals gave is proper for 13-1405(A) and 13-3212(B) but not 13 -3212(A)(1).(ECF No. 12 at 4, citing ECF No. 10-1 at 163).
Buffington errs in maintaining he fairly presented, i.e., properly exhausted, a federal constitutional claim in his petition for review from the Arizona Court of Appeals' decision in his direct appeal. In his petition for review to the state supreme court Buffington maintained: “THE COURT OF APPEALS EMPLOYED AN INAPPROPRIATE STATUTORY ANALYSIS OF THE ELEMENTS OF MR. BUFFINGTON'S CHARGE.” (ECF No. 10-1 at 159) (capital letters in original). In his petition for review Buffington also argued the trial court erred in instructing the jury, contending “the trial Court erred by failing to instruct the jury that Mr. Buffington must have known or should have known the age of the victims in order to convict.” (ECF No. 10-1 at 157). Buffington also asserted the trial court misinterpreted State v. Hood and State v. Gamez. (Id.). Nowhere in Buffington's petition for review did he cite a specific constitutional amendment, a specific constitutional right, or any federal court opinion. Buffington does not use the term “due process” anywhere in his petition for review. Nor did Buffington properly exhaust a federal constitutional claim in his brief to the Arizona Court of Appeals, wherein Buffington's only mention of due process was a passing reference with regard to the jury instructions, i.e., “[b]ecause the trial court erroneously relied on the wrong statute and gave an improper instruction to the jury, the Defendant/Appellant was denied due process as guaranteed under the United State Constitution.” (ECF No. 10-1 at 101).
In his reply Buffington also argues:
It is perplexing that the State now argues that Mr. Buffington has not raised an argument relating to being charged for an offense he was given no fair warning of, when this has been a clear argument of his that he first initially raised in his Petition for Review to the Arizona Supreme Court, arising based on the Arizona Court of Appeals interpretation of the statute upon which he was charged.(ECF No. 12 at 3). In this statement Buffington ignores that, although he raised an argument regarding the appellate court's “interpretation” of the relevant statute, he did not clearly, fully, and explicitly assert the state court's interpretation of the relevant statute violated his federal constitutional right to due process of law.
In the petition for review Buffington asserted the “trial court inappropriately instructed the jury regarding the applicable defenses pertaining to Mr. Buffington's mental state,” and that the “Court of Appeals employed an inappropriate statutory analysis of the elements of Mr. Buffington's charge.” (ECF No. 10-1 at 156-61). In essence, Buffington alleged § 13-3212(a)(1), which prohibits “knowingly causing any minor to engage in prostitution,” requires the State to prove the defendant knowingly caused an individual to engage in prostitution and also knew the individual was a minor. (ECF No. 10-1 at 162-63). Buffington also argued State v. Hood, 251 Ariz. 57 (Ariz.Ct.App. 2021) is “entirely dissimilar from the circumstance at hand,” and that his case was “entirely outside the scope of either Gamez or Hood, and therefore those cases have extremely limited bearing on the ultimate issue presented for review here.” (ECF No. 10-1 at 164). Buffington argued:
There is a vast difference between facilitating in the prostitution of knowing adults and that of purposefully being engaged in the sex trafficking of minors, which is why these two charges have significantly different degrees of punishment. It is counter-intuitive to hold that a defendant should face a greater punishment merely because he was deceived. The addition of “knowingly” in A.R.S. § 13-3212(A)(1) must be given its proper effect to separate the distinct mens rea formulated by a defendant when deciding if he/she wants to run the gauntlet of facing stiffened penalties when presented with knowledge as to the minority of a victim, the undeniable distinguishing fact between A.R.S. §13-1405 and § 13-3212.(ECF No. 10-1 at 165).
Buffington failed to fairly present a federal constitutional claim to the state appellate court by “plainly” identifying, and articulating, a specific federal constitutional guarantee in his state court pleadings. See Castillo, 399 F.3d at 1002 (holding a habeas petitioner did not give the state appellate court the fair opportunity to rule on a federal due process claim by concluding their brief with a scattershot citation of federal constitutional provisions, divorced from any articulated federal legal theory). See also Fields, 401 F.3d at 1021 (noting exhaustion demands more than a citation to a general constitutional provision, detached from any articulation of the underlying federal legal theory); Solis, 219 F.3d at 929 (holding that a habeas petitioner did not exhaust a federal claim by averring in state court: “Finally, the errors complained of above, individually and cumulatively denied appellant Due Process and a fair trial under federal and state constitutions”); Hiivala, 195 F.3d at 1106 (“Moreover, general appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair trial, are insufficient to establish exhaustion.”); Neese v. Ryan, 2017 WL 5157250, at *10 (D. Ariz. Aug. 16, 2017), report and recommendation adopted, 2017 WL 5127253 (D. Ariz. Nov. 6, 2017). Buffington gave only a passing reference to the federal constitutional guarantee of due process in his appellate pleadings, and in his state post-conviction pleadings he never used the word “vague,” implying the relevant statute was void for vagueness, as he does in his federal habeas petition. Buffington is simply wrong in alleging that he properly exhausted, i.e., fairly presented, a claim that the statute under which he was convicted was unconstitutional because it was vague with regard to the elements of the crime of conviction. Nor did Buffington properly exhaust a due process claim in the state courts, as he did not discuss due process, as compared to a “drive-by” citation to this right, in his state appellate briefing.
With regard to exhaustion Buffington further asserts:
.. the United States Supreme Court has held that the nonexhausion defense can be waived in order to avoid unnecessary delay in granting relief that is plainly warranted. Frisbie v. Collins, 342 U.S. 519 [] (1952) (The general rule of exhaustion “is not rigid and inflexible... Whether such [special] circumstances exist calls for a factual appraisal by the court in each special situation”). Exhaustion should not be required “whenever it may become clear that the alleged state remedy is nothing but a procedural morass offering no substantial hope of relief.” Marino v. Ragen, 332 U.S. 561 [] (1947) (Rutledge J., concurring) (cited in Granberry v. Greer, 481 U.S. 129, 136 n.8 (1987). 28 U.S.C. § 2254(b)(1) states that an application for a writ of habeas corpus should be granted if “there is an absence of available State corrective process” or “circumstances exist that render such process ineffective to protect the rights of the applicant.” Id § 2254(b)(1)(B)(i); (ii). In this case, as Ground 1 arises from the Court of Appeals decision, requiring Petition to return to a lower Court to assert a due process violation would be futile as it is unlikely the trial Court would have been persuaded to reverse itself and the trial court would be without authority to overrule the Arizona Court of Appeals decision. See State v. Patterson, 222 Ariz. 574 (2009) (Trial courts are bound by the precedent of prior Court of Appeals decision); Francis v. Ariz. Dep't of Transp., 192 Ariz. 269 (1998) (A Court of Appeals decision becomes binding on lower courts from the date of its publication). This clearly left Mr. Buffington without available State corrective process; these circumstances render process ineffective to protect Mr. Buffington's rights. Therefore, Mr. Buffington's, first, Mr. Buffington did not fail to exhaust his Ground 1 claim and his claims meet the exception for absence of available corrective process, entitling him to seek Habeas Corpus relief on this claim.(ECF No. 12 at 3-4).
The exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). A waiver of the exhaustion requirement may not be implied or inferred. If a state defendant fails to properly exhaust a federal constitutional claim in the state courts and cannot, per the state's rules regarding timeliness, waiver, and the preclusion of claims, return to the state courts to exhaust the claim, the claim is exhausted but procedurally defaulted. Notably, the cases cited by Buffington's
counsel regarding the “waiver” of the exhaustion requirement were decided prior to the Anti-Terrorism and Effective Death Penalty Act in 1996, which codified the exhaustion requirement. Furthermore, the only entity which may waive the exhaustion requirement is Respondent's counsel, and the requirement must be explicitly waived. See 28 U.S.C. § 2254(b)(3). In this matter, Respondent's counsel most certainly has not waived the exhaustion requirement.
Buffington also contends: “None of Mr. Buffington's Three Grounds are Defaulted as They State a Federal Basis and Federal Nature of the Claim.” (ECF No. 12 at 4). This is simply an incorrect statement of habeas law.
The question of whether a habeas petitioner has procedurally defaulted on certain claims is governed by the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254 (“AEDPA”). AEDPA mandates that habeas petitioners exhaust their claims in state court before raising them in federal court. 28 U.S.C. § 2254(b)(1)(A). Exhaustion requires the petitioner to “fairly present†his claims to the highest court of the state. []. In order to fairly present a claim, the petitioner must clearly state the federal basis and federal nature of the claim, along with relevant facts. []. . . .
In addition to the exhaustion requirement, a federal court may not hear a habeas claim if it runs afoul of the procedural bar doctrine. Exhaustion and procedural bar are closely related, but distinct, doctrines. [] First, if the state court denied the claim on state procedural grounds, it will be deemed procedurally defaulted unless the petitioner can show cause and prejudice. []. Second, if a claim is unexhausted but state procedural rules would now bar consideration of the claim, it is technically exhausted but will be deemed procedurally defaulted unless the petitioner can show cause and prejudice.Cooper, 641 F.3d at 326-27 (internal citations omitted).
This section provides: “A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.”
As discussed supra, because Buffington failed to present the same federal constitutional claim argued in his § 2254 petition to the state courts, and he is precluded by the state's procedural rules regarding timeliness, waiver, and the preclusion of claims from returning to state court in an effort to properly exhaust the claims presented to the federal habeas court, the claims are exhausted but procedurally defaulted. Buffington fails to show cause for, or prejudice arising from his procedural default of his claims.
Additionally, Buffington fails to establish a fundamental miscarriage of justice will occur absent consideration of his procedurally defaulted claims because the record indicates the state trial and appellate courts did not “misinterpret” either the plain language of the subject statute or legislative intent. In State v. Gamez, 227 Ariz. 445, 449-451 (Ariz.Ct.App. 2011), the Arizona appellate court interpreted Arizona Revised Statutes § 13-1405(A), which provides: “A person commits sexual conduct with a minor by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person who is under eighteen years of age.” The appellate court concluded the plain language of the statute only required proof that the defendant intentionally or knowingly engaged in sexual conduct with the victim, and did not require proof that the defendant knew the victim was under the age of 18. Gamez, 227 Ariz. at 450. The state court concluded that, had the legislature intended to require the State to prove a defendant knew the victim was a minor, it would have said so explicitly in the statute. Id. In doing so the court compared state statutes which specifically provide that knowledge of a characteristic of the victim must be established, such as the crime of aggravated assault against a police officer, where the State was required to “prove that the defendant knowingly caused the requisite injury while ‘knowing or having reason to know that the victim is ... a peace officer ....'” Id., citing Ariz. Rev. Stat. §§ 13-1203(A) & 13-1204(A)(8)(a). The court also noted Arizona Revised Statutes § 13-3554(a) contained specific language with regard to knowledge of a victim's age, i.e., that the statute prohibits “soliciting sexual conduct with another person knowing or having reason to know that the other person is a minor.” (emphasis added).
In State v. Hood, the Arizona Court of Appeals concluded the “statutory mental state at issue,” i.e., the crime of sex-trafficking in violation of Arizona Revised Statutes § 13-3212(A)(1), was “indistinguishable” from that in Gamez and concluded the legislature did not intend to require proof that a defendant charged with violating the statute knew the victim was a minor. See 251 Ariz. 57, 60 (Ariz.Ct.App. 2021), as amended (Mar. 22, 2021), review denied (May 3, 2022). The Arizona court rejected claims similar to Buffington's, such as the validity of the jury instructions with regard to the elements of the crime, and the Arizona Supreme Court denied review.
As relevant here, a person commits child sex trafficking by knowingly “[c]ausing any minor to engage in prostitution.” A.R.S. § 13-3212(A)(1). A person commits sexual exploitation of a minor by knowingly recording or possessing “any visual depiction in which a minor is engaged in ... sexual conduct.” A.R.S. § 13-3553(A)(1), (2). Hood contends the “knowingly” mental state referenced in these statutes applies not just to the prohibited act, but also to the victim's status as a minor. State v. Hood, 251 Ariz. 57, 60 (Ariz.Ct.App. 2021), as amended (Mar. 22, 2021), review denied, (May 3, 2022).
Furthermore, “[t]he threshold question under AEDPA is whether [a petitioner] seeks to apply a rule of law that was clearly established at the time his state-court conviction became final.” Williams v. Taylor, 529 U.S. 362, 390 (2000). Therefore, to assess a claim under § 2254(d)(1), the court must first identify the “clearly established Federal law,” if any, that governs the claim on habeas review. “Clearly established” federal law consists of the holdings of the Supreme Court at the time the petitioner's state court conviction became final. Id. at 365. Habeas relief cannot be granted if the Supreme Court has not “broken sufficient legal ground” on a constitutional principle advanced by a petitioner, even if lower federal courts have decided the issue. Id. at 381. To the extent that any federal constitutional claim was fairly presented to the state appellate court, the denial of relief on a claim that a state court misinterpreted a state criminal statute with regard to an element of the crime, in violation of the United States Constitution's due process clause, was not clearly contrary to nor an unreasonable application of clearly controlling federal law as stated by the United States Supreme Court. At the time Buffington's conviction became final there was no clearly established federal law with regard to the requisite mens rea as to a victim's age. Buffington's appellate counsel did not cite to any clearly controlling federal law on this point in his appellate brief, Buffington does not cite to any clearly controlling federal law on this point in his habeas pleadings, and the undersigned has not found, despite thorough research, any published or unpublished opinion citing or stating such controlling federal law. Accordingly, to the extent Buffington's petition presents a federal constitutional claim which was properly exhausted in the state courts, the denial of the claim was not clearly contrary to nor an unreasonable application of controlling federal law. See Knowles v. Mirzayance, 556 U.S. 111, 112 (2009) (“it is not an unreasonable application of' clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by [the United States Supreme Court]” (internal quotations omitted)); Wright v. Van Patten, 552 U.S. 120, 126 (2008) (“[b]ecause our cases give no clear answer to the question presented, let alone one in [the petitioner's] favor, it cannot be said that the state court ‘unreasonably applied clearly established Federal law.” (internal quotations omitted)); Carey v. Musladin, 549 U.S. 70, 77 (2006) (“Given the lack of holdings from this Court ... it cannot be said that the state court unreasonably applied clearly established Federal law.” (citation and brackets omitted)); Varghese v. Uribe, 736 F.3d 817, 824 (9th Cir. 2013). “[I]n the absence of a Supreme Court decision that squarely addresses the issue in the case before the state court ..., or establishes a general principle that clearly extends to the case,” it cannot be said that clearly established federal law exists for purposes of § 2254(d), and a federal court must defer to the state court decision. Moses v. Payne, 555 F.3d 742, 760 (9th Cir. 2009).
Additionally, Buffington's claims are not cognizable in a federal habeas action. The gravamen of the arguments raised in Buffington's appeal and his federal habeas petition is that the Arizona trial and appellate court misinterpreted the state statutes governing his conviction and sentence, i.e., that these courts erred in concluding that knowledge of the victim's age was not an element of the crime of conviction. Buffington's habeas petition asks the Court to determine whether the state courts properly applied Arizona criminal law and sentencing law. However, “it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Buffington's use of the term due process does not transform his claims regarding the state trial and appellate court's interpretation of state statutes into a cognizable claim of the violation of a federal constitutional right. See Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996) (stating that petitioner cannot “transform a state-law issue into a federal one merely by asserting a violation of due process”). Buffington's claims involve solely the interpretation and application of state sentencing law and, accordingly, they do not present a basis for federal habeas relief. Cacoperdo v. Demosthenes, 37 F.3d 504, 506 (9th Cir. 1994) (holding the petitioner's claim that the state court erred in imposing consecutive sentences was not cognizable in federal habeas); Hendricks v. Zenon, 993 F.2d 664, 674 (9th Cir. 1993) (concluding the defendant's claim that the state court was required to merge his convictions was not cognizable). A federal habeas court is “bound by a state court's construction of its own penal statutes” as to the requisite the elements of crimes defined by state law. Souch v. Schaivo, 289 F.3d 616, 623 (9th Cir. 2002) (holding a federal habeas court is “bound by a state court's construction of its own penal statutes.”). See also Missouri v. Hunter, 459 U.S. 359, 366 (1983); Holgerson v. Knowles, 309 F.3d 1200, 1201 (9th Cir. 2005); Mendez v. Small, 298 F.3d 1154, 1158 (9th Cir. 2002) (“A state court has the last word on the interpretation of state law.”); Campbell v. Blodgett, 997 F.2d 512, 522 (9th Cir. 1992) (“[a]s the Supreme Court has stated time and again, federal habeas corpus relief does not lie for errors of state law”). Furthermore, claims of sentencing error committed by a state court involve the interpretation or application of state sentencing law and are not cognizable on federal habeas review. See Swarthout v. Cooke, 562 U.S. 216, 218 (2011); Missouri, 459 U.S. at 366; Roberts v. Hartley, 640 F.3d 1042, 1046 (9th Cir. 2011); Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994) (instructing that “[a]bsent a showing of fundamental unfairness, a state court's misapplication of its own sentencing laws does not justify federal habeas relief[.]”); Watts v. Bonneville, 879 F.2d 685, 687 (9th Cir. 1989) (holding the petitioner's claim that the trial court violated a provision of state law in sentencing him was not cognizable). The Ninth Circuit has specifically refused to consider on habeas review claims of erroneous application of state sentencing law by state courts. See, e.g., Miller v. Vasquez, 868 F.2d 1116 (9th Cir. 1989) (holding that whether assault with a deadly weapon qualifies as a “serious felony” under California's sentence enhancement provisions is a question of state sentencing law and does not state a federal constitutional claim).
III Conclusion
Buffington failed to properly exhaust any of his § 2254 claims by fairly presenting the claims, as federal constitutional claims, to the state's highest court in a procedurally correct manner. Buffington fails to establish cause for and prejudice arising from his procedural default of his claims and he does not present any evidence supporting a claim of actual, factual innocence. Furthermore, Buffington's claims are not cognizable on federal habeas review. Moreover, Buffington has not established that the state courts' denial of relief was clearly contrary to nor an unreasonable application of clearly established federal law.
IT IS THEREFORE RECOMMENDED that the petition seeking a federal writ of habeas corpus at ECF No. 1 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), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
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. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length. Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts requires the district court to “issue or a deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254. The undersigned recommends that, should the Report and Recommendation be adopted and, should Buffington seek a certificate of appealability, a certificate of appealability should be denied because he has not made a substantial showing of the denial of a constitutional right.