Opinion
CV-23-08039-PCT-DLR (DMF)
01-09-2024
Kristopher William Douglas, Petitioner, v. State of Arizona, et al., Respondents.
REPORT AND RECOMMENDATION
Honorable Deborah M. Fine United States Magistrate Judge
TO THE HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE:
This matter is on referral to the undersigned for further proceedings and a report and recommendation pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure. (Doc. 7 at 4)
Petitioner Kristopher William Douglas (“Petitioner”), who is confined in the Arizona State Prison Complex in Tucson, Arizona, filed a pro se Petition for Writ of Habeas Corpus by a Person in State Custody (“Petition”) on February 23, 2023. (Doc. 1) On March 31, 2023, the Court dismissed the Petition for failure to name the correct respondents and granted Petitioner leave to file an amended petition within 30 days of the Court's Order. (Doc. 5) The Court also denied without prejudice Petitioner's motion for appointment of counsel. (Docs. 3, 5 at 2)
The Petition was docketed by the Clerk of Court on February 27, 2023. (Doc. 1) The Petition contains a declaration by Petitioner that he placed the Petition in the prison mailing system on February 23, 2023. (Id. at 15) This Report and Recommendation uses February 23, 2023, as the operative filing date of the Petition. Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (“A petition is considered to be filed on the date a prisoner hands the petition to prison officials for mailing.”); Melville v. Shinn, 68 F.4th 1154, 1159 (9th Cir. 2023) (affirming that the prison mailbox rule “applies to pro se federal habeas petitions” on the date a petitioner signs, dates, and attests the petition was placed in the prison mailing system); see also Rule 3, Rules Governing Section 2254 Cases (petition is timely if deposited in prison mailing system on or before last day for filing, which may be shown by “declaration in compliance with 28 U.S.C. § 1746 or by a notarized statement”).
On April 17, 2023, 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) (“Amended Petition”). (Doc. 6) On May 11, 2023, the Court ordered Respondents to answer the Amended Petition. (Doc. 7 at 3-4)
See footnote 1, supra.
On July 18, 2023, Respondents filed their Limited Answer to the Amended Petition. (Doc. 12) Petitioner did not file a reply to Respondents' July 18, 2023, Limited Answer, and the time to do so expired in late August 2023.On December 14, 2023, the Court ordered Respondents to remail a copy of the Limited Answer to Petitioner at Petitioner's proper mailing address. (Doc. 13) Because it was unclear whether Petitioner had received Respondents' Limited Answer at the address to which it was mailed on July 18, 2023, and given the absence of a reply to the Limited Answer, the Court granted Petitioner leave to file a reply to the Limited Answer within thirty days of proper service of the Limited Answer. (Doc. 13)
On January 4, 2023, Petitioner filed a Reply to the Limited Answer. (Doc. 15) The reply included Petitioner's renewed request for appointment of counsel. (Id.) The Court denied without prejudice Petitioner's renewed request for court appointed counsel. (Doc. 16)
For the reasons set forth below, it is recommended that these proceedings be dismissed and denied with prejudice, that the Clerk of Court be directed to terminate this matter, and that a certificate of appealability be denied.
I. BACKGROUND
A. Petitioner's Charge, Conviction, and Sentence
In its memorandum decision affirming Petitioner's conviction and sentence in Mohave County Superior Court case number S8015 CR201900775, the Arizona Court of Appeals summarized the facts and procedural background leading to Petitioner's conviction and sentence:
A grand jury indicted [Petitioner] on one count of transportation of dangerous drugs for sale after an Arizona Department of Public Safety Trooper initiated a traffic stop of [Petitioner's] truck and ultimately found 40 individually packaged bundles of methamphetamine behind the driver's seat. Before trial, [Petitioner] moved to suppress the drug evidence, arguing the Trooper (1) lacked reasonable suspicion justifying the stop and (2) unlawfully prolonged the stop s duration. The court held a suppression hearing on the motion, where only the Trooper testified. The State also presented a dash-camera recording of the encounter.
The Trooper testified that he was patrolling traffic on April 30, 2019, when he followed and stopped a “lifted” pickup truck - one with a raised center of gravity - for traveling without rear fender splash guards (“mud flaps”), in violation of A.R.S. § 28-958.01. At the stop, he immediately noticed an “Oklahoma State Trooper support sticker” on the truck's back window. The sticker drew the Trooper's attention because he rarely sees such stickers and drug traffickers often use them to project a law-abiding image in attempting to conceal their criminal activity. The Trooper made his way to the truck's passenger side where he contacted [Petitioner], the driver, and Cody Wayne Story, the only passenger. After collecting their licenses and other relevant documents, he asked [Petitioner] to accompany him to his patrol vehicle, and [Petitioner] agreed. [Petitioner] sat in the front passenger seat next to the Trooper. The Trooper's police-service dog, Lorka, was in the back-seat area.
The Trooper engaged [Petitioner] in conversation while conducting records checks and preparing a warning ticket. [Petitioner] said that he had lust spent three days in Santa Barbara, California, visiting his grandmother. In discussing the trip, [Petitioner's] “breathing increase[d]” and his chest “beat[] like crazy,' making his “nervousness . . . evident”' to the Trooper. [Petitioner's] breathing stabilized when they conversed about [Petitioner's] family and his job, but his physical signs of nervousness reappeared “any time [the Trooper] reference[d] or ask[ed] anything about his trip.” The Trooper explained [Petitioner's] behavior was suspicious because his nervousness never subsided, and “when somebody is . . . not involved in criminal activity, their nervousness and their anxiety [eventually] calms down[.]” The Trooper also noted [Petitioner] had a spiderweb tattoo on his elbow, which “significantly relates to prison time.”
During their conversation, the Trooper asked [Petitioner] when he had last visited California before this trip. [Petitioner] “tilted his head back all dramatically [and] closed his eyes,” then said he had not been to California in three years. [Petitioner's] reaction was a “huge indication of deception” to the Trooper because [Petitioner] seemed to be “looking for the answer.” The Trooper further identified [Petitioner's] answer as an “obvious lie” based on information he had already retrieved from a license-plate-reader database showing the truck - which, Douglas told the Trooper, only he drove - had traveled in California just one month earlier.
Around eight minutes after the Trooper and [Petitioner] entered the patrol car, the Trooper walked back to the truck to obtain its vehicle identification
number (“VIN”) and return Story's identification. [Petitioner] waited in the patrol car with Lorka. While at the truck, the Trooper asked Story about his travels. Story explained that he and [Petitioner] had been visiting [Petitioner's] grandparents in California but could not remember the name of the town. Story was “very, very anxious,” breathing so heavily “[i]t looked like he was going to pass out[,]” and “look[ed] side to side as if he was looking for the answer.” Story was the most nervous [the Trooper had] ever seen a passenger in [his] career.” Story's behavior and responses led the Trooper to surmise he was giving a “rehearsed” account.
The Trooper soon returned to the patrol car, printed out the warning, gave it to [Petitioner] to review and sign, and ultimately issued the completed warning approximately 12 minutes after initiating the stop. Following a brief pause, the Trooper asked [Petitioner] a series of questions about criminal activity, including whether he was transporting contraband and for consent to search his truck. [Petitioner] denied possessing any contraband and declined the search request. The Trooper then asked permission to “run [Lorka] around the exterior of the vehicle,” and Douglas agreed. The dashcamera video shows roughly 50 seconds had elapsed between the warning's delivery and [Petitioner's] consent. Lorka quickly alerted to the truck's window, and the ensuing search yielded 50 pounds of methamphetamine.
The superior court denied [Petitioner's] suppression motion, finding: (1) the Trooper credibly determined that the truck was lifted based on his general vehicular knowledge and “his apparent[] fondness with this particular vehicle”; (2) even if his lift assessment was incorrect, he relied on “an objectively reasonable mistake of fact that was made in good faith”; (3) the encounter following the warning s delivery was consensual; (4) assuming the encounter was not consensual, the Trooper had reasonable suspicion to prolong the stop.
[Petitioner] later waived his right to a jury trial. Following a bench trial, the superior court found [Petitioner] guilty as charged and sentenced him to ten years' imprisonment.(Doc. 12-1 at 4-6)
The state court's stated facts are entitled to the presumption of correctness. See 28 U.S.C. § 2254(e)(1); Purkett v. Elem, 514 U.S. 765, 769 (1995) (per curiam) (“In habeas proceedings in federal courts, the tactual findings ot state courts are presumed to be correct.”); Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012) (rejecting argument that the statement of facts in an Arizona Supreme Court opinion should not be afforded the presumption of correctness).
During trial court proceedings, Petitioner was represented by counsel Daniel Kaiser (“trial counsel”). (See id. at 14, 18)
B. Petitioner's Direct Appeal
Through trial counsel, Petitioner timely commenced a direct appeal of his conviction and sentence in case number S8015 CR201900775. (Id. at 23) Through appointed counsel Jill Evans of the Mohave County Legal Advocate (“appellate counsel”), Petitioner filed an opening brief in which Petitioner argued (1) that the trial court should have granted his motion to suppress “based on an illegal traffic stop where the officer lacked reasonable suspicion of a traffic violation[,]” and (2) the trial court should have granted his motion to suppress “based on an illegal detention which lasted beyond the purpose of the traffic stop without consent or reasonable suspicion.” (Id. at 25-74) The state filed a response. (Id. at 76-106)
On February 22, 2022, the Arizona Court of Appeals affirmed Petitioner's conviction and sentence in case number S8015 CR201900775, finding that the state trooper had reasonable suspicion for the traffic stop of Petitioner and had reasonable suspicion of criminal activity supporting the extended encounter. (Id. at 3-12) As such, the court of appeals determined that the trial court had not erred in rejecting Petitioner's challenges to the traffic stop, including its prolonged duration after the warning was issued. (Id.)
Through appellate counsel, Petitioner filed a petition for review to the Arizona Supreme Court. (Id. at 108-23) In his petition for review, Petitioner raised the same arguments as Petitioner raised in his opening brief in the court of appeals. (Id.) On August 25, 2022, the Arizona Supreme Court denied Petitioner's petition for review without discussion. (Id. at 125)
C. Petitioner's Post-Conviction Relief (“PCR”) Proceedings
On September 2, 2022, Petitioner filed a pro se PCR notice in the Mohave County Superior Court and requested appointment of PCR counsel. (Id. at 127-30) On February 27, 2023, appointed counsel Janelle McEachern (“PCR counsel”) filed a “Notice of Completion of Record; Notice of Non-Filing of Supplemental Petition for Post-Conviction Relief Pursuant to Ariz. R. Crim. P. 32.6(c).” (Id. at 132-39) PCR counsel stated that she found no colorable claims to raise and would not file a PCR petition on Petitioner's behalf. (Id.) PCR counsel requested an extension of time for Petitioner to file a pro se PCR petition. (Id. at 138) The superior court granted Petitioner leave to file a pro se PCR petition and ordered PCR counsel to remain in an advisory capacity. (Id. at 141-42) Because Petitioner ultimately did not file a pro se PCR petition, on April 24, 2023, the superior court dismissed Petitioner's PCR proceedings. (Id. at 144)
II. PETITIONER'S HABEAS CLAIMS
In his April 17, 2023, Amended Petition, Petitioner asserts three grounds for relief. In Ground One, Petitioner asserts that the state trooper in his case conducted an illegal traffic stop in violation of Petitioner's Fourth and Fourteenth Amendment rights. (Doc. 6 at 6) Petitioner asserts that the state trooper's testimony at the pretrial evidentiary hearing was not credible, that the state trooper did not have reasonable suspicion of a traffic violation, and that the trial court improperly found the state trooper's testimony to be “good faith law.” (Id.) In Ground Two, Petitioner asserts that the trial court should have granted his motion to suppress “based on an illegal detention which lasted beyond the purpose of the traffic stop without consent or reasonable suspicion.” (Id. at 7) In Ground Three, Petitioner asserts that he was improperly profiled as a criminal or drug smuggler in violation of his constitutional rights and due to: Petitioner's Oklahoma license plates; an Oklahoma Highway Patrol bumper sticker; a “short stay”; a spider web tattoo on Petitioner's elbow; and Petitioner's nervousness during the traffic stop. (Id. at 8) Petitioner asserts that the state trooper followed Petition for 22 miles with the intent to stop Petitioner and “[r]an a background check that has nothing to do with a minor traffic violation[.]” (Id.) Petitioner concedes that he did not raise his Ground Three claim on direct appeal. (Id.)
In their Limited Answer to the Amended Petition, Respondents assert that Grounds One and Two are non-cognizable in these habeas proceedings pursuant to Stone v. Powell, 428 U.S. 465 (1976), because each ground raises a violation of Petitioner's Fourth Amendment rights. (Doc. 12 at 4) Respondents assert that Petitioner's Ground Three claim is procedurally defaulted without excuse because Petitioner did not present his Ground Three claim to the state courts in his direct appeal or PCR proceedings. (Id. at 4-10)
In his Reply to the Limited Answer, Petitioner reasserts that the state court failed to consider the state trooper's testimony that the state trooper did not have an objectively reasonable basis for a traffic stop. (Doc. 15 at 1) Petitioner further asserts that the Arizona Supreme Court denied review in Petitioner's case. (Id.) In his reply, Petitioner also renewed his request for appointment of counsel, which the Court again denied without prejudice. (Docs. 3, 5 at 2, 15, 16)
III. PROCEDURAL DEFAULT
Respondents assert that Petitioner's Ground Three claim is procedurally defaulted without excuse. (Doc. 12 at 4-10) As discussed below, Respondents are correct.
A. Legal Framework
1. Exhaustion
A state prisoner must properly exhaust all state court remedies before this Court may grant an application for a writ of habeas corpus. 28 U.S.C. § 2254(b)(1), (c); Duncan v. Henry, 513 U.S. 364, 365 (1995); Coleman v. Thompson, 501 U.S. 722, 731 (1991). Arizona prisoners properly exhaust state remedies by fairly presenting claims to the Arizona Court of Appeals in a procedurally appropriate manner. O 'Sullivan v. Boerckel, 526 U.S. 838, 843-45 (1999); Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999). To be fairly presented, a claim must include a statement of the operative facts and the specific federal legal theory. Baldwin v. Reese, 541 U.S. 27, 32-33 (2004); Gray v. Netherland, 518 U.S. 152, 162-63 (1996); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (“The mere similarity between a claim of state and federal error is insufficient to establish exhaustion.”).
In Arizona, a petitioner must fairly present his claims to the Arizona Court of Appeals by properly pursuing them through the state's direct appeal process or through appropriate post-conviction relief. See Swoopes, 196 F.3d at 1010; Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994); Castillo v. McFadden, 399 F.3d 993, 998 & n.3 (9th Cir. 2005). Fair presentment of claims to the Arizona Court of Appeals requires a description of “both the operative facts and the federal legal theory on which [a] claim is based so that the state courts [could] have a ‘fair opportunity' to apply controlling legal principles to the facts bearing upon [the] constitutional claim.” McFadden, 399 F.3d at 999 (quoting Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003)).
It is not fair presentment, for example, that “all the facts necessary to support the federal claim were before the state courts . . . or that a somewhat similar state-law claim was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam) (internal citation omitted). It is also not enough to rely on a “general appeal to a constitutional guarantee as broad as due process to present the ‘substance' of such a claim to a state court.” Netherland, 518 U.S. at 163; see also McFadden, 399 F.3d at 1002-03 (finding habeas petitioner did not give the state appellate court a fair opportunity to rule on a federal due process claim because “[e]xhaustion demands more than drive-by citation, detached from any articulation of an underlying federal legal theory,” and the petitioner's claim in state court was a “conclusory, scattershot citation of federal constitutional provisions, divorced from any articulated federal legal theory”).
Fair presentment is not achieved by raising the claim for “the first and only time in a procedural context in which its merits will not be considered,” unless there are special circumstances. Castille v. Peoples, 489 U.S. 346, 351 (1989). As example, raising a claim for the first time in a discretionary petition for review to the Arizona Supreme Court or in a special action petition is not sufficient to achieve fair presentment. See Casey v. Moore, 386 F.3d 896, 918 (9th Cir. 2004) (“Because we conclude that Casey raised his federal constitutional claims for the first and only time to the state's highest court on discretionary review, he did not fairly present them.”) (footnote omitted).
2. Procedural Default
A corollary to the exhaustion requirement is the “procedural default doctrine.” The procedural default doctrine limits a petitioner from proceeding in federal court where his claim is procedurally barred in state court and “has its roots in the general principle that federal courts will not disturb state court judgments based on adequate and independent state law procedural grounds.” Dretke v. Haley, 541 U.S. 386, 392 (2004). If a petitioner fails to fairly present his claim to the state courts in a procedurally appropriate manner, the claim is procedurally defaulted and generally barred from federal habeas review. Ylst v. Nunnemaker, 501 U.S. 797, 802-05 (1991). There are two categories of procedural default.
First, a claim may be procedurally defaulted in federal court if it was actually raised in state court but found by that court to be defaulted on state procedural grounds. Coleman, 501 U.S. at 729-30. This is called an express procedural bar. An express procedural bar exists if the state court denies or dismisses a claim based on a procedural bar “that is both ‘independent' of the merits of the federal claim and an ‘adequate' basis for the court's decision.” Harris v. Reed, 489 U.S. 255, 260 (1989); Stewart v. Smith, 536 U.S. 856, 860 (2002) (Arizona's “Rule 32.2(a)(3) determinations are independent of federal law because they do not depend upon a federal constitutional ruling on the merits”); Johnson v. Mississippi, 486 U.S. 578, 587 (1988) (“adequate” grounds exist when a state strictly or regularly follows its procedural rule).
Moreover, if a state court applies a procedural bar, but goes on to alternatively address the merits of the federal claim, the claim is still barred from federal review. See Harris, 489 U.S. at 264 n.10 (“[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law.... In this way, a state court may reach a federal question without sacrificing its interests in finality, federalism, and comity.”) (citations omitted); Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003) (“A state court's application of a procedural rule is not undermined where, as here, the state court simultaneously rejects the merits of the claim.”) (citing Harris, 489 U.S. at 264 n.10).
Second, the claim may be procedurally defaulted if the petitioner failed to present the claim in a necessary state court and “the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.” Coleman, 501 U.S. at 735 n.1; Boerckel, 526 U.S. at 848 (when time for filing state court petition has expired, petitioner's failure to timely present claims to state court results in a procedural default of those claims); Smith v. Baldwin, 510 F.3d 1127, 1138 (9th Cir. 2007) (failure to exhaust claims in state court resulted in procedural default of claims for federal habeas purposes when state's rules for filing petition for post- conviction relief barred petitioner from returning to state court to exhaust his claims). This is called an implied procedural bar. Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). This type of procedural default is often referred to as “technical” exhaustion because although the claim was not actually exhausted in state court, Petitioner no longer has an available state remedy. Coleman, 501 U.S. at 732 (“A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no state remedies any longer ‘available' to him.”).
In Arizona, claims not properly presented to the state courts are generally barred from federal review because an attempt to return to state court to present them is futile unless the claims fit in a narrow category of claims for which a successive petition is permitted. See former rules Ariz. R. Crim. P. 32.2(a) (precluding claims not raised on appeal or in prior petitions for post-conviction relief), 32.4(a) (time bar), 32.1(d)-(h), 32.9(c) (petition for review must be filed within thirty days of trial court's decision); see also current rules Ariz. R. Crim. P. 32.4(b)(3) (time bar); Ariz. R. Crim. P. 32.1(b) through (h) and 32.2(b) (permitting successive PCR proceedings on certain grounds and specified circumstances); 32.16(a)(1) (petition for review must be filed within thirty days of trial court's decision).
Effective January 1, 2020, former Arizona Rules of Criminal Procedure (“Rules”) 32 and 33 were abrogated, and new Rules 32 and 33 were adopted. See Arizona Supreme Court Order No. R-19-0012. As a general matter, the substance of former Rule 32 was divided among the two new rules based on whether a defendant was convicted at trial (new Rule 32) or had pled guilty or no contest (new Rule 33). See id.; Pet. to Amend (Jan. 10, 2019), at 4-5. New Rule 32 thus encompasses the rules applicable to a defendant's right to seek post-conviction relief when the defendant is convicted by trial. New Rule 32 and new Rule 33 apply to “all actions filed on or after January 1, 2020, and to “all other actions pending on January 1, 2020, except to the extent that the court in an affected action determines that applying the rule or amendment would be infeasible or work an injustice, in which event the former rule or procedure applies.” Arizona Supreme Court Order No. R-19-0012.
Arizona courts have consistently applied Arizona's procedural rules to bar further review of claims that were not properly raised on direct appeal or in prior Rule 32 postconviction proceedings. See, e.g., Stewart, 536 U.S. at 860 (determinations made under Arizona's procedural default rule are “independent” of federal law); Smith v. Stewart, 241 F.3d 1191, 1195 n.2 (9th Cir. 2000) (“We have held that Arizona's procedural default rule is regularly followed [or “adequate”] in several cases.”) (citations omitted), rev'd on other grounds, Stewart, 536 U.S. 856; State v. Mata, 185 Ariz. 319, 334-36, 916 P.2d 1035, 1050-52 (Ariz. 1996) (waiver and preclusion rules strictly applied in post-conviction proceedings). A petitioner who fails to follow a state's procedural requirements for presenting a valid claim deprives the state court of an opportunity to address the claim in much the same manner as a petitioner who completely fails to attempt to exhaust his state remedies.
3. Excuse for Procedural Default
The Court may review a procedurally defaulted claim if the petitioner can demonstrate either: (1) cause for the default and actual prejudice to excuse the default, or (2) a miscarriage of justice/actual innocence. 28 U.S.C. § 2254(c)(2)(B); Schlup v. Delo, 513 U.S. 298, 321 (1995); Coleman, 501 U.S. at 750; Murray v. Carrier, 477 U.S. 478, 495-96 (1986). “Cause” is something that “cannot be fairly attributable” to a petitioner, and a petitioner must show that this “objective factor external to the defense impeded [his] efforts to comply with the State's procedural rule.” Coleman, 501 U.S. at 753 (citation and internal quotation marks omitted). To establish prejudice a “habeas petitioner must show ‘not merely that the errors at ... trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'” Murray, 477 U.S. at 494 (quoting United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original)). “Such a showing of pervasive actual prejudice can hardly be thought to constitute anything other than a showing that the prisoner was denied ‘fundamental fairness' at trial.” Id.
The miscarriage of justice exception to procedural default “is limited to those extraordinary cases where the petitioner asserts his [actual] innocence and establishes that the court cannot have confidence in the contrary finding of guilt.” Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir. 2008) (emphasis in original). To pass through the actual innocence/Schlup gateway, a petitioner must establish his or her factual innocence of the crime and not mere legal insufficiency. See Bousley v. United States, 523 U.S.614, 623 (1998); Jaramillo, 340 F.3d at 882-83. Significantly, “[t]o be credible, [a claim of actual innocence] requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence.” Schlup, 513 U.S. at 324. See also Lee, 653 F.3d at 945; McQuiggin, 569 U.S. at 399 (explaining the significance of an “[u]nexplained delay in presenting new evidence”). A petitioner “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” McQuiggin, 569 U.S. at 399 (quoting Schlup, 513 U.S. at 327)). Because of “the rarity of such evidence, in virtually every case, the allegation of actual innocence has been summarily rejected.” Shumway, 223 F.3d at 990 (citing Calderon, 523 U.S. at 559).
B. Amended Petition Ground Three is Unexhausted
In Ground Three of the Amended Petition, Petitioner asserts that he was improperly profiled as a criminal and/or a drug smuggler due to: Petitioner's Oklahoma license plates; an Oklahoma Highway Patrol bumper sticker; a “short stay”; a spider web tattoo on Petitioner's elbow; and Petitioner's nervousness during the traffic stop. (Doc. 6 at 8) Petitioner asserts that the state trooper followed Petition for 22 miles with the intent to stop Petitioner and “[r]an a background check that has nothing to do with a minor traffic violation[.]” (Id.)
Petitioner did not raise his Ground Three claim in his direct appeal of his conviction and sentence in the Arizona Court of Appeals, where he was required to raise such. Swoopes, 196 F.3d at 1010. In his Amended Petition, Petitioner concedes that he did not raise his Ground Three claim in the Arizona Court of Appeals. (Doc. 6 at 8) Regarding Petitioner's failure to raise the claim in his direct appeal, the Amended Petition that his “attorney said this would not be enough and she wanted to concentrate on the illegal stop and seizure.” Neither did Petitioner raise his Ground Three claim in his petition for review to the Arizona Supreme Court. Moreover, Petitioner did not raise his Ground Three claim or any claim during his PCR proceedings; Petitioner did not file a PCR petition in the superior court, despite leave to do so pro se after his counsel's review of the record revealed no colorable claim for post-conviction relief.
Because Petitioner did not properly present his Ground Three claim to the state courts, Petitioner's Ground Three claim was not properly exhausted for purposes of federal habeas review.
C. Amended Petition Ground Three is Procedurally Defaulted
As set forth above, Amended Petitioner Ground Three is unexhausted. Amended Petition Ground Three is also implicitly procedurally defaulted because it is too late under Arizona procedure for Petitioner to return to state court to properly exhaust the claim. See Ariz. R. Crim. P. 32.2(a)(3) (defendant precluded from relief pursuant to Rule 32.1(a) based on any ground waived at trial or on appeal); Ariz. R. Crim. P. 32.4(b)(3)(A) (claims filed under Rule 32.1(a) must be filed within 90 days after oral pronouncement of sentence or 30 days after issuance of mandate in direct appeal); Ariz. R. Crim. P. 32.4(b)(3)(B) (claims filed under Rule 32.1(b) through (h) must be filed “within a reasonable time after discovering the basis of the claim”). Petitioner does not argue he is able to return to state court to properly exhaust his Ground Three claim, nor does the record support such an argument. Accordingly, Petitioner's Ground Three claim is procedurally defaulted.
Arizona Rule of Criminal Procedure 32.2(a)(3) provides that PCR relief is precluded on any claim “waived at trial or on appeal, or in any previous post-conviction proceeding, except when the claim raises a violation of a constitutional right that can only be waived knowingly, voluntarily, and personally by the defendant.” (emphasis supplied). The italicized language was added to the rules in January 2020, but even under the prior rule, Arizona courts limited an exception to preclusion only in circumstances where “an asserted claim is of sufficient constitutional magnitude.” Stewart v. Smith, 202 Ariz. 446, 449 (2002). The Arizona Supreme Court has instructed that examples encompassed by this phrase include the right to counsel, the right to a jury trial, and the right to a twelve-person jury. See id. Petitioner has not shown that his procedurally defaulted claim at issue in this matter alleges a violation of a constitutional right that can only be waived knowingly, voluntarily, and personally by a defendant.
D. Petitioner Fails to Establish Cause and Prejudice or Miscarriage of Justice/Actual Innocence to Excuse the Procedural Default of Ground Three
To excuse the procedural default of Ground Three, Petitioner bears the burden of establishing either: (1) both cause and actual prejudice, or (2) a miscarriage of justice/actual innocence. Coleman, 501 U.S. at 750.
1. Cause and Prejudice
In his Amended Petition, Petitioner asserts that he did not raise his Ground Three claim to the state courts because his “attorney said this wouldn't be enough and she wanted to concentrate on the illegal stop and seizure.” (Doc. 6 at 8) A petitioner cannot establish cause to excuse procedural default where his counsel made a tactical decision not to raise the claim and where the constitutional basis of a claim was reasonably available to counsel. Amadeo v. Zant, 486 U.S. 214, 221-222 (1988). The legal and factual basis for Petitioner's Ground Three claim was available to Petitioner's trial and appellate counsel at the time of Petitioner's direct appeal of his conviction and sentence. Petitioner has not shown that the factual or legal basis for his Ground Three claim was reasonably unavailable to his trial or appellate counsel at the time of his direct appeal and indeed states that he asked counsel to raise his Ground Three claim during his direct appeal. As Petitioner himself further states, Petitioner's appellate counsel made a decision not to raise Petitioner's Ground Three claim in Petitioner's direct appeal, in favor of focusing on Petitioner's Grounds One and Two claims.
Further, Petitioner does not argue or establish prejudice resulting from the actions of his trial or appellate counsel. Accordingly, Petitioner has not established cause and prejudice to excuse his procedural default of Ground Three.
2. Miscarriage of Justice/Actual Innocence
As set forth above, the miscarriage of justice exception to procedural default “is limited to those extraordinary cases where the petitioner asserts his [actual] innocence and establishes that the court cannot have confidence in the contrary finding of guilt.” Johnson, 541 F.3d at 937. To meet the miscarriage of justice/actual innocence exception to procedural default, Petitioner must “support his allegations of constitutional error with new reliable evidence[,]” Schlup, 513 U.S. at 324, and “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” McQuiggin, 569 U.S. at 399 (quoting Schlup, 513 U.S. at 327). Petitioner fails to meet this burden.
To his Amended Petition, Petitioner attached his opening brief in his direct appeal of his conviction and sentence (Doc. 6-1 at 1-50), an undated and uncaptioned photograph of a truck (Id. at 51), the Arizona Court of Appeals' memorandum decision affirming his conviction and sentence (Id. at 52-61), and his petition for review to the Arizona Supreme Court in his direct appeal (Doc. 6-2 at 1-16). Petitioner's briefs in his direct appeal and the state court opinions attached to the Amended Petition are not new, reliable evidence that would likely prevent a jury from convicting Petitioner of the offense underlying his claims in the Amended Petition. Petitioner also does not explain how the attached photograph of a truck constitutes new, reliable evidence. Petitioner does not explain the significance of the photograph, or whether the photograph displays the truck involved in the events that led to Petitioner's conviction. Even if the attached photograph displays the truck involved in the events leading to Petitioner's conviction, such photographic evidence would have existed at the time of Petitioner's conviction and sentence, and Petitioner does not assert otherwise.
Petitioner has not met his burden of establishing new, reliable evidence that more likely than not would have prevented a jury from convicting him. Accordingly, Petitioner's Ground Three claim is procedurally defaulted without excuse.
IV. NON-COGNIZABLE CLAIMS
Respondents assert that Petitioner's Grounds One and Two claims are non-cognizable in these proceedings because Petitioner's Grounds One and Two claims allege violations of Petitioner's Fourth Amendment rights. (Doc. 12 at 4) Respondents assert that Petitioner had a full and fair opportunity to litigate his Grounds One and Two claims in state court. (Id.) As discussed below, Respondents are correct.
In Ground One of the Amended Petition, Petitioner asserts that the state trooper conducted an illegal traffic stop, that the state trooper testified as to contradictory reasons for stopping Petitioner, that the state trooper's testimony at the evidentiary hearing was not credible, that the state trooper did not have reasonable suspicion of a traffic violation, and that the trial court improperly found the state trooper's testimony to be “good faith law.” (Doc. 6 at 6; see also Doc. 15 at 1-2) Accordingly, Petitioner asserts a violation of his Fourth and Fourteenth Amendment rights. (Id.) In Ground Two of the Amended Petition asserts a similar claim, a claim that is reasonably read to have the same constitutional basis. (Id. at 7) In Ground Two, Petitioner asserts that the trial court should have granted Petitioner's motion to suppress “based on an illegal detention which lasted beyond the purpose of the traffic stop and without consent or reasonable suspicion.” (Id.) Petitioner argues that his prolonged detention by the state trooper was not consensual. (Id.)
As Petitioner recognizes in citing the Fourteenth Amendment in Ground One of the Amended Petition, the Fourth Amendment is applicable to the states through the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655 (1961). Nevertheless, as stated in Stone v. Powell, if the state “has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” 428 U.S. at 481-82. A reviewing court must only consider “‘whether petitioner had the opportunity to litigate his claim, not whether he did in fact do so or even whether the claim was correctly decided.'” Newman v. Wengler, 790 F.3d 876, 880 (9th Cir. 2015) (quoting Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996)).
During pretrial proceedings, Petitioner had an opportunity to litigate his Grounds One and Two claims that the state trooper did not have reasonable suspicion to justify a traffic stop and that the state trooper unlawfully prolonged the duration of the traffic stop. (See Doc. 12-1 at 4-6) The trial court held a pretrial evidentiary hearing on Petitioner's Grounds One and Two claims and denied Petitioner's motion to suppress drug evidence found during the traffic stop. (Id.) Petitioner further raised his Grounds One and Two claims in his direct appeal of his conviction and sentence, as well as in this petition for review to the Arizona Supreme Court. (Id. at 6, 25-74, 108-125) Petitioner does not assert in his Amended Petition that any obstacle prevented an “opportunity for full and fair litigation of' his Fourth Amendment claims in his state court proceedings, nor does the record support such a conclusion. Stone, 428 U.S. at 481. Accordingly, Amended Petition Grounds One and Two are not cognizable on habeas review.
V. CONCLUSION
Amended Petition Ground Three is procedurally defaulted without excuse. Amended Petition Grounds One and Two are non-cognizable because Petitioner asserts Fourth Amendment violations for which he had a full and fair opportunity to litigate in the state courts, and he did so. Therefore, it is recommended that the Amended Petition be dismissed and denied with prejudice and that the Clerk of Court be directed to terminate this matter.
Assuming the recommendations herein are followed in the District Judge's judgment, the undersigned recommends that a certificate of appealability be denied because dismissal is justified by a plain procedural bar and reasonable jurists would not find the procedural ruling debatable, and because Petitioner has not “made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
IT IS THEREFORE RECOMMENDED that Petitioner Kristopher William Douglas' Amended Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 6) be denied and dismissed with prejudice and that this matter be terminated.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability be denied.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. The parties shall have fourteen days within which to file responses to any objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determination of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.