Ferguson v. Shinn

Full title: Charles Ferguson, Petitioner, v. David Shinn, et al., Respondents.

Court: United States District Court, District of Arizona

Date published: Oct 27, 2023

CV-22-02141-PHX-JJT (DMF) (D. Ariz. Oct. 27, 2023)

Opinion

CV-22-02141-PHX-JJT (DMF)

10-27-2023

Charles Ferguson, Petitioner, v. David Shinn, et al., Respondents.

Honorable Deborah M. Fine United States Magistrate Judge

HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT JUDGE

REPORT AND RECOMMENDATION

Honorable Deborah M. Fine United States Magistrate Judge

This matter is on referral to the undersigned for further proceedings and a report and recommendation pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure. (Doc. 6 at 5)¹

1 Citation to the record indicates documents as displayed in the official Court electronic document filing system maintained by the District of Arizona under Case No. CV-22-02141-PHX-JJT (DMF).

Petitioner Charles Ferguson (“Petitioner”), who is confined in the Arizona State Prison Complex - West in Phoenix, Arizona, filed a pro se Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody on December 7, 2022.² (Doc. 1) On January 20, 2023, the Court dismissed the Petition without prejudice for failure to allege a violation of the Constitution or the laws or treaties of the United States. (Doc. 3) The Court granted Petitioner leave to file an amended petition within 30 days of the Court's Order. (Id.)

2 The Petition was docketed by the Clerk of Court on December 19, 2022. (Doc. 1) The Petition contains a declaration by Petitioner that he placed the Petition in the prison mailing system on December 7, 2022. (Id. at 15) This Report and Recommendation uses December 7, 2022, 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).

On February 21, 2023,³ Petitioner filed an Amended Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (“Amended Petition”). (Doc. 5) On April 20, 2023, the Court ordered Respondents to answer the Amended Petition. (Doc. 6 at 4) In doing so, the Court ordered that:

3 See footnote 2, supra.

Respondents may file an answer that (a) is limited to relevant affirmative defenses, including, but not limited to, statute of limitations, procedural bar, or non-retroactivity; (b) raises affirmative defenses as to some claims and discusses the merits of others; or (c) discusses the merits of all claims. The failure to set forth an affirmative defense regarding a claim in an answer may be treated as a waiver of the defense as to that claim, Day v. McDonough, 547 U.S. 198, 209-11 (2006), but an answer that is limited to affirmative defenses on a particular claim does not waive any argument on the merits as to that claim. If the answer only raises affirmative defenses, only those portions of the record relevant to those defenses need be attached to the answer. If not, the answer must fully comply with all of the requirements of Rule 5 of the Rules Governing Section 2254 Cases.

(Id.)

On June 29, 2023, Respondents filed their Limited Answer to the Amended Petition. (Doc. 11) On July 25, 2023, Petitioner filed a reply. (Doc. 12)

On August 10, 2023, Abolish Private Prisons Incorporated (“APP”) filed a Motion for Leave to File Amicus Curiae Brief. (Doc. 13) In its motion for leave, APP states that Petitioner had no objection to APP's filing of an amicus curiae brief. (Id. at 1) On August 16, 2023, Respondents filed a response objecting to APP's motion for leave. (Doc. 14) No reply was filed.

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. It is further recommended that APP's Motion for Leave to File Amicus Curiae Brief (Doc. 13) be denied.

I. BACKGROUND

A. Petitioner's Charges, Convictions, Probation Revocation, and Sentences

The Amended Petition asserts challenges to Petitioner's conviction, probation revocation, and sentences in Maricopa County Superior Court case numbers CR2015-002242-002 and CR2008-009219-001. (Doc. 5 at 1)

1. Case Number CR2015-002242-002

In its memorandum decision affirming Petitioner's conviction and sentence in Maricopa County Superior Court case number CR2015-002242-002, the Arizona Court of Appeals summarized the facts leading to the charge against Petitioner:

[Petitioner's] nineteen-year old wife, Helen, was a prostitute. She advertised her services on Backpage.com. In January 2015, Sergeant George Gollihar began communicating with Helen, who used the alias “Gwen.” Gollihar also used an alias-“James.” Eventually Sergeant Gollihar set up a “date” with Helen. Prior to the date, Helen and Gollihar agreed that for $500 she would spend two hours with Gollihar at the condominium she shared with [Petitioner] and provide him with a “GFE,” or “girlfriend experience” which would include a bubble bath together, a massage, and anal sex. On the day of the “date,” Helen and [Petitioner] discussed the date. Helen sent [Petitioner] texts stating when the date was and that it was for a GFE. [Petitioner] sent Helen a text telling her to use a condom. When it was time for Helen's date, [Petitioner] waited in the condominium parking lot in his vehicle.

After Gollihar arrived at the condo, Helen let him in and he gave a predetermined bust signal to his fellow officers. Police searched the condo and seized several cell phones, an appointment book, a receipt book, and flyers listing various sex acts and their prices. The receipt book contained a receipt dated January 22, 2015 for Gollihar's date with Helen which stated, “Happy touch massage $500 for GF massage from James to Gwen.” Police seized $175 from [Petitioner's] wallet.

Police arrested Helen, [Petitioner], and a third individual. Police interviewed [Petitioner] at the police station. [Petitioner] admitted that he used the cash his wife made giving massages to pay rent on their condominium.

(Doc. 11-2 at 86)⁴

4 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 court, the factual findings of 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).

On June 26, 2015, a Maricopa County grand jury indicted Petitioner with one crime: receiving earnings of a prostitute, a class 5 felony. (Id. at 13-14) The state submitted an allegation of historical priors, including two counts of theft control of property committed in 2005 and 2009, each a class 2 felony, for which Petitioner was convicted in December 2009 in case numbers CR-2008-009219-001 and CR2009-005858-002. (Id. at 15-16) The state also submitted an allegation of offenses committed while Petitioner was released from confinement in case number CR2008-009219-001 (Id. at 17-18) and an allegation of aggravating circumstances (Id. at 19-20). During trial court proceedings, Petitioner was represented by appointed counsel Sheri Lauritano (“trial counsel”). (See id. at 10, 24, 29, 35-36)

Following a four-day jury trial in August 2017, the jury convicted Petitioner of the offense of receiving earnings of a prostitute and found that the state had proven the existence of aggravating factors. (Id. at 24-27) Petitioner was not present during the trial or the jury's verdict (Id. at 24, 48), and the trial court entered a bench warrant for Petitioner following the jury verdict (Id. at 26).

On December 15, 2017, the trial court held a sentencing hearing in case numbers CR2015-002242-002 and CR2008-009219-001, at which Petitioner was present. (Id. at 2933; Doc. 11-5 at 29-56) At the sentencing hearing, Petitioner admitted to two prior felony convictions in case numbers CR2008-009219-001 and CR2009-005858-001. (Doc. 11-2 at 30; Doc. 11-5 at 32-38) In doing so, Petitioner acknowledged that he understood that his admission would increase his sentence in case number CR2015-002242-002 and that he was giving up certain constitutional rights by admitting to the allegations of the two prior convictions. (Doc. 11-5 at 34-36) Due to Petitioner's conviction by jury trial in case number CR2015-002242-002, the trial court found Petitioner to be in violation of his probation in case number CR2008-009219-001. (Id. at 39)

During the sentencing hearing, the state requested a six-year term of imprisonment, highlighting Petitioner's prior convictions and the similarity between Petitioner's prior offenses and his conviction in case number CR2015-002242-002. (Id. at 40-41) Petitioner's trial counsel requested the presumptive term of five years for Petitioner's conviction in case number CR2015-002242-002 and stated that she had explained to Petitioner that “his floor is the presumptive” term due to his probation and that Petitioner's prior convictions were built into the sentencing categories. (Id. at 42-43) The trial court found that aggravating factors outweighed mitigating factors and that Petitioner's prior convictions would enhance his sentence but that the court was “not putting as much weight on them because they've already been used to put [Petitioner] in a different category.” (Id. at 4547) Ultimately, the trial court sentenced Petitioner to a maximum term of imprisonment of six years with 88 days of presentence credit for time served and a period of community supervision equal to one day per seven days of Petitioner's imprisonment sentence. (Id. at 47-48; Doc. 11-2 at 29-33) At the conclusion of the sentencing hearing in case numbers CR-2008-009219-001 and CR2009-005858-002, the trial court stated that Petitioner had the right to appeal within twenty days of sentencing. (Doc. 11-5 at 54)

2. Case Number CR2008-009219-001

On November 18, 2008, a Maricopa County grand jury indicted Petitioner with 29 crimes: two counts of fraudulent schemes and artifices, each a class 2 felony; one count of money laundering, a class 3 felony; five counts of forgery, each a class 4 felony; one count of aggravated taking the identity of another person, a class 4 felony; ten counts of theft, each a class 2 felony; seven counts of theft, each a class 3 felony; one count of sale of unregistered securities, a class 4 felony; one count of transactions by unregistered dealers and salesmen, a class 4 felony; and one count of securities fraud, a class 4 felony. (Doc. 11-1 at 3-13) On September 2, 2009, pursuant to a plea agreement, Petitioner plead guilty to one count of theft, a class 2 felony, and the state agreed to dismiss the remaining charges against Petitioner. (Id. at 15-21, 23-24) Pursuant to the terms of the plea agreement, on December 11, 2009, the trial court imposed a seven-year term of probation upon the completion of a term of imprisonment in case number CR2009-00585-001, and the trial court also ordered restitution. (Id. at 16, 26-31)

In November 2014, the state filed a petition to revoke Petitioner's probation. (Id. at 33) On January 13, 2015, Petitioner admitted that he violated his probation by failing to pay restitution as ordered, and the trial court continued Petitioner on probation with a revised expiration date of March 29, 2020. (Id. at 35-39)

In its memorandum decision affirming Petitioner's probation revocation and associated sentence in Maricopa County Superior Court case number CR2008-009219-001, the Arizona Court of Appeals described the petition to revoke probation resulting in the revocation of probation and associated sentence challenged in the Amended Petition:

In November 2016,⁵ the state filed a petition to revoke [Petitioner's] probation in CR2008-009219-001 DT. Among other allegations, the petition alleged that [Petitioner] had committed the offense of receiving the earnings of a prostitute. Following the determination of guilt in CR2015-002242-002, the trial court revoked [Petitioner's] probation in CR2008-009219-001 DT and sentenced him to five years in prison with three days of presentence incarceration credit, to be served consecutive to the sentence in CR2015-002242-002.

(Doc. 11-2 at 87)⁶ As stated above, Petitioner's sentencing hearing on his probation revocation proceedings in case number CR2008-009219-001 was held at the same time as Petitioner's sentencing in case number CR2015-002242-002, and Petitioner was present. (Doc. 11-2 at 5-8, 29-33) The five-year sentence of imprisonment upon probation revocation in case number CR2008-009219-001 was the presumptive term. (Doc. 11-5 at 53) Petitioner also received a period of community supervision equal to one day per seven days of his imprisonment sentence. (Id.) At the conclusion of the sentencing hearing, the trial court stated that Petitioner had the right to appeal within twenty days of sentencing. (Id. at 54)

5 The record before the Court contains a petition to revoke Petitioner's probation due to committing the offense of receiving the earnings of a prostitute, dated November 2015. (Doc. 11-1 at 41-44)

6 See footnote 4, supra.

B. Petitioner's Direct Appeals in Case Numbers CR2015-002242-002 and CR2008-009219-001

Petitioner timely commenced a direct appeal of his conviction and sentence in case number CR2015-002242-002 in the Arizona Court of Appeals. (Doc. 11-2 at 44-60) Through counsel Stephen Duncan (“appellate counsel”), Petitioner filed an opening brief in which he raised only one ground for relief: that the trial court abused its discretion in denying a mistrial due to an improper reference during trial of Petitioner previously “getting out of ‘DOC [Department of Corrections.]'” (Id.) The state filed a response. (Id. at 62-83)

Through trial counsel, Petitioner timely filed a notice of appeal in case number CR2008-009219-001. (Id. at 10-11)

The court of appeals consolidated Petitioner's appeals in case numbers CR2015-002242-002 and CR2008-009219-001. (Id. at 42) In evaluating the appeal, the court of appeals determined that the trial court did not abuse its discretion in denying Petitioner's motion for a mistrial in case number CR2015-002242-002 because Petitioner did not demonstrate that he was prejudiced at trial by the reference to DOC. (Id. at 88-89) On February 5, 2019, the court of appeals affirmed Petitioner's conviction and sentence in case number CR2015-002242-002 as well as Petitioner's probation revocation and associated sentence in case number CR2008-009219-001. (Id. at 85-90)

Petitioner did not file a motion for reconsideration in the Arizona Court of Appeals or a petition for review to the Arizona Supreme Court. (Id. at 92) On March 20, 2019, the Arizona Court of Appeals issued its mandate. (Id.)

C. Petitioner's Post-Conviction Relief (“PCR”) Proceedings Case Numbers CR2015-002242-002 and CR2008-009219-001

1. First PCR Proceedings

On April 19, 2019,⁷ Petitioner filed a pro se PCR notice in the superior court in case numbers CR2015-002242-002 and CR2008-009219-001. (Id. at 94-97) With Petitioner's PCR notice, Petitioner included a copy of an envelope mailed from Petitioner's appellate counsel, stamped received on April 8, 2019, with a handwritten note that Petitioner's appellate counsel did not inform Petitioner of the mandate for 18 days. (Id. at 97) Petitioner checked a box on the PCR notice that he did not want the court to appoint PCR counsel. (Id. at 95) The superior court entered procedural orders in response to the PCR notice. (Id. at 99-100)

7 The prison mailbox rule applies to Petitioner's PCR notice. Melville, 68 F.4th at 1159 (“‘We assume that [Melville] ‘turned his petition over to prison authorities on the same day he signed it and apply the mailbox rule.' Butler v. Long, 752 F.3d 1177, 1178 n.1 (9th Cir. 2014) (per curiam).”). Petitioner's PCR notice was signed and dated on April 19, 2019. (Doc. 11-2 at 96)

On November 19, 2019,⁸ Petitioner filed a pro se PCR petition (“first PCR petition”) in the superior court, titled “Petition for Writ of Habeas Corpus and Affidavit,” in which he asserted that the filing was “not within the scope of [Arizona Rules of Criminal Procedure,] Rule 32.1[.]” (Id. at 102-69) In his first PCR petition, Petitioner asserted that the state court lacked jurisdiction in case numbers CR2008-009219-001 and CR2015-002242-002, that Petitioner had “obliterated and extinguished any debt, duty, and obligation” in his cases, that federal statutes not disclosed to Petitioner “would have altered Petitioner's life had they been known,” and that the state court “had a pecuniary gain which violates Petitioner's constitutional rights, civil rights, and federal statutes[.]” (Id. at 10405, 107-11)

8 See footnote 7, supra.

Construing Petitioner's November 2019 filing as an Arizona Rules of Criminal Procedure, Rule 32 PCR petition, the state filed a response in opposition. (Doc. 11-3 at 310). Petitioner filed a reply (See id. at 12). On August 7, 2020,⁹ the superior court summarily dismissed Petitioner's first PCR petition:

9 The filing date is the operative date of the superior court's ruling. See Ariz. R. Crim. P. 1.10(c) (see former Ariz. R. Crim. P. 1.3(c)).

The Court notes that [Petitioner's] conviction was affirmed on appeal by the Court of Appeals (see COA Mandate, dated 3/20/19).

In short, the Court finds that [Petitioner's] current petition raises issues that he likely should have raised in his appeal. [Petitioner] is precluded from raising these issues in the current petition. See Rule 32.2(a)(2), Arizona Rules of Criminal Procedure; see also Stewart v. Smith, 202 Ariz. 446, 450 (2002).

The Court further agrees with the additional arguments set forth in the State's response. In short, there are no colorable claims that might warrant the intervention of this Court. See, e.g., State v. Jenkins, 193 Ariz. 115, 120, 970 P.2d 947, 952 (App. 1998).

(Id. at 12-13)¹⁰

10 The month before the first PCR notice, Petitioner had filed a motion to modify sentence in case numbers CR2015-002242-002 and CR2008-009219-001. (Doc. 11-2 at 38-40) The motion argued that Petitioner was not credited for time served in custody in Clark County, Nevada; that his convictions in case numbers CR2008-009219-001 and CR2009-005858-001 were “functionally consolidated” by Petitioner's plea agreement; and that the trial court should have sentenced Petitioner to a three-year term of imprisonment based on only one prior conviction. (Id.) At the same time as dismissing the first PCR petition, the superior court granted Petitioner's motion to modify sentence as to Petitioner's credit for time served, determining that in case number CR2015-002242-002, Petitioner was entitled to an additional 84 days of credit for time served in Clark County, Nevada. (Doc. 11-3 at 13-14) In doing so, the superior court stated that Petitioner could not receive time-served credit for his sentences in both case numbers CR2015-002242-002 and CR2008-009219-001 because Petitioner received consecutive sentences for both cases. (Id.) The superior court denied the remaining relief requested in Petitioner's motion. (Id. at 14).

In August 2020, Petitioner filed a motion for reconsideration in the superior court. (Id. at 16-18) On August 31, 2020, the superior court denied Petitioner's motion for reconsideration, determining that Petitioner provided no legal or factual basis for reconsideration. (Id. at 20)

On September 30, 2020, Petitioner signed a petition for review which was received by the Arizona Court of Appeals on October 1, 2020. (Id. at 22-24) In the petition for review, Petitioner asserted that the superior court abused its discretion and violated his due process rights because his “Petition for Writ of Habeas Corpus” was not intended to be Petitioner's PCR petition and because the superior court allowed the state to file a response to Petitioner's PCR petition one day late. (Id. at 22-23) Petitioner requested a stay for Petitioner to file a PCR petition. (Id.)

On April 6, 2021, the Arizona Court of Appeals granted review but denied relief, finding that Petitioner had not established that the superior court abused its discretion. (Id. at 26-27) The record does not reflect that Petitioner filed a motion for reconsideration in the Arizona Court of Appeals or a petition for review to the Arizona Supreme Court.¹¹

11 Further, the Maricopa County Superior Court electronic docket system does not reflect a motion for reconsideration or a petition for review: see https://perma.cc/S8FT-ES5B (case number CR2015-002242-002) and https://perma.cc/2X6L-3MHC~ (case number CR2008-009219-001) (last accessed September 27, 2023).

2. Second PCR Proceedings

While his petition for review in the first PCR proceedings was pending, on October 12, 2020, Petitioner filed a second pro se PCR notice in the superior court in case numbers CR2015-002242-002 and CR2008-009219-001. (Id. at 29-31) Like in the first PCR proceedings, Petitioner did not request appointment of PCR counsel in his second PCR notice. (Id. at 31) The superior court entered procedural orders in response to the second PCR notice. (Id. at 33-34)

On June 16, 2021, Petitioner filed his second pro se PCR petition in the superior court. (Doc. 11-4 at 3-106) Petitioner asserted claims challenging “1) determination of prior felony convictions, 2) timing of searches and the issuance of search warrants, 3) lack of authorized search warrants, 4) dismissal based on a lack of factual response to prior filings, 5) a conflict of interest by the judge and prosecutor, 6) a resulting lack of subjectmatter jurisdiction, and 7) inappropriate post-conviction mail review and tampering.” (Doc. 11-5 at 16) On July 29, 2021, Petitioner filed a prose supplement to his second PCR petition. (Id. at 3-14) In the supplement, Petitioner asserted newly discovered evidence that case numbers CR2008-009219-001 and CR2015-002242-002 were void due to the state courts having an unconstitutional financial interest in the outcome of Petitioner's cases. (Id.)

On December 1, 2021, the superior court summarily dismissed Petitioner's second PCR petition, finding that Petitioner's claims were precluded because they could have been raised to the court of appeals on direct appeal. (Id. at 16-17) In doing so, the superior court stated:

A Rule 32 claim is precluded if it can or could have been, but was not, raised on direct appeal, or if the claim was previously adjudicated in a Rule 32 proceeding. [Petitioner] could have, but did not, raise his concern about the determination of prior felony convictions to the Court of Appeals. The same is true of his concerns regarding the timing of the search conducted by Sergeant Gollihar and the authorization of the search conducted by Detective Quan. [Petitioner's] concerns about prior facts submitted were addressed in prior rulings by this Court, as were his concerns about financial interests creating an inappropriate conflict for the judge and prosecutor. Any conflict-of-interest claim could have been presented on appeal. As a result, all of these claims are precluded and not appropriate for review under Rule 32.

Even if they were not precluded, [Petitioner] has not established any colorable claim. He is legally incorrect as to the determination of prior felony convictions and factually incorrect regarding the search issues. Any facts that were “established” in prior hearings would not affect the outcome here. And [Petitioner's] claim about conflicts of interest is not sufficient to establish any such conflict.

As a result, [Petitioner's] argument that the Court lacks subject-matter jurisdiction also fails. The Court had jurisdiction at the time the indictment was filed.

Finally, the Court agrees with the State that the complaints regarding alleged mail tampering are not appropriate for Rule 32 relief.

(Id.)

In December 2021, Petitioner filed a petition for review in the court of appeals. (Id. at 19-24)

On July 26, 2022, the court of appeals granted review but denied relief, finding that Petitioner had not established that the superior court abused its discretion by denying Petitioner's second PCR petition. (Id. at 26-27) The record does not reflect that Petitioner filed a motion for reconsideration in the Arizona Court of Appeals or a petition for review to the Arizona Supreme Court.¹²

12 The record before the Court does not include a motion for reconsideration or petition to review to the Arizona Supreme Court, nor does it reflect a mandate from the court of appeals. Respondents cite Petitioner's representation in the Amended Petition that Petitioner did not file a petition for review in the Arizona Supreme Court. (Doc. 11 at 8) Further, the electronic docketing system maintained by the Maricopa County Superior Court does not reflect a motion for reconsideration or a petition for review, but the electronic docketing system does reflect a mandate filed September 6, 2022: see https://perma.cc/S8FT-ES5B (case number CR2015-002242-002) and https://perma.cc/2X6L-3MHC (case number CR2008-009219-001) (last accessed September 27, 2023).

II. PETITIONER'S HABEAS CLAIMS

In his Amended Petition, Petitioner asserts four grounds for relief. In Ground One, Petitioner asserts that a search warrant in case number CR2015-002242-002 was issued after the search was conducted, violating Petitioner's Fourth, Fifth, and Fourteenth Amendment rights. (Doc. 5 at 5-6, 15) In Ground Two, Petitioner asserts that he was erroneously sentenced in case number CR2015-002242-002 due to the trial court's failure to consolidate Petitioner's two prior felonies in case numbers CR2008-009219-001 and CR2009-005858-001 pursuant to Buford v. United States, 532 U.S. 59 (2001). (Id. at 7-8, 16) Petitioner argues that if the trial court had consolidated Petitioner's prior felonies, Petitioner would have been sentenced based on only one prior conviction. (Id.) Petitioner asserts that his erroneous sentence violates his Fifth, Eighth, and Fourteenth Amendment rights. (Id.) In Ground Three, Petitioner asserts that no search warrant was issued for the contents of cell phones or computers, in violation of the Fourth, Fifth, and Fourteenth Amendments. (Id. at 8-9, 17) In Ground Four, Petitioner asserts that Arizona state judges “receive extrajudicial pecuniary interest in the outcome of” Petitioner's cases, violating Petitioner's Fifth and Fourteenth Amendment rights. (Id. at 10-11, 18) In support of his Ground Four argument, Petitioner asserts that Arizona state judges' retirement plans are invested in private prison corporations that operate in Arizona and that Arizona state judges receive “delayed compensation” through these investments. (Id. at 18)

In their Limited Answer, Respondents argue that these proceedings are untimely filed without excuse. (Doc. 11 at 8-11) Respondents further argue that each of Petitioner's claims in the Amended Petition are procedurally defaulted without excuse, that Ground Two of the Amended Petition is non-cognizable in these proceedings, and that Grounds One and Three of the Amended Petition are non-cognizable in these proceedings insofar as Petitioner asserts Fourth Amendment violations. (Id. at 11-17)

In his reply in support of the Amended Petition, Petitioner asserts that these proceedings are not time-barred because they are based on newly discovered evidence and that each ground of the Amended Petition demonstrates a fundamental miscarriage of justice, thereby allowing this Court to review Petitioner's procedurally defaulted claims. (Doc. 12 at 1-14)

On August 10, 2023, Abolish Private Prisons Incorporated (“APP”) filed a Motion for Leave to File Amicus Curiae Brief. (Doc. 13) In its motion for leave, APP states that Petitioner had no objection to APP's filing of an amicus curiae brief. (Id. at 1) On August 16, 2023, Respondents filed a response objecting to APP's motion for leave. (Doc. 14) No reply was filed.

III. TIMELINESS

Because Respondents raised the affirmative defense of untimeliness, a threshold issue for the Court is whether these habeas proceedings are time-barred by the statute of limitations. The time-bar issue must be resolved before considering other procedural issues or the merits of any habeas claim. See White v. Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2022).

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs Petitioner's habeas proceedings because he filed his Petition after April 24, 1996, the effective date of AEDPA. Patterson v. Stewart, 251 F.3d 1243 (9th Cir. 2001) (citing Smith v. Robbins, 528 U.S. 259, 267 n.3 (2000)). AEDPA provides a one-year statute of limitations period. See 28 U.S.C. § 2244(d)(1).

A. Filing Date of the Amended Petition

Petitioner filed the Petition initiating these proceedings on December 7, 2022, the date Petitioner placed the Petition in the prison mailing system.¹³ (Doc. 1) The Petition raised four grounds for relief: (1) a search warrant was issued after a search was conducted, (2) Petitioner was erroneously sentenced in case number CR2015-002242-002 because Petitioner's prior felonies in case numbers CR2008-009219-001 and CR2009-005858-001 were not consolidated for sentencing consideration, (3) no search warrant was issued for the contents of cellphones or computers, and (4) the state court lacked subject matter jurisdiction because Arizona state judges have an “[e]xtrajudicial pecuniary interest in the outcome of” Petitioner's cases due to the investment of Arizona judicial retirement plans in private prisons. (Doc. 1 at 5-11)

13 See footnote 2, supra.

In dismissing the Petition with leave to amend, this Court determined that Petitioner had not raised any ground for relief that Petitioner was in custody in violation of the Constitution or United States law. (Doc. 3 at 2) The Court warned Petitioner that if he filed an amended petition, he must “specifically allege in each ground the particular federal constitutional right allegedly violated, with supporting facts.” (Id.)

On February 21, 2023, Petitioner filed his Amended Petition and asserted four grounds for relief: (1) a search warrant was issued after a search was conducted, in violation of the Fourth, Fifth, and Fourteenth Amendments, (2) Petitioner was erroneously sentenced in case number CR2015-002242-002 in violation of the Fifth, Eighth, and Fourteenth Amendments because Petitioner's two prior felonies in case numbers CR2008-009219-001 and CR2009-005858-001 were not consolidated for sentencing consideration, (3) no search warrant was issued for the contents of cellphones or computers, in violation of the Fourth, Fifth, and Fourteenth Amendments, and (4) that Arizona state judges “receive extrajudicial pecuniary interest in the outcome of” Petitioner's cases in violation of the Fifth and Fourteenth Amendments. (Doc. 5 at 5-11, 15-18)

A habeas petitioner may amend or supplement a petition “as provided in the rules of procedure applicable to civil actions.” 28 U.S.C. § 2242. Pursuant to Fed.R.Civ.P. 15(c), an amended petition will relate back to the date of the original petition when “the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading[.]” The filing date of an amended petition will not relate back to the filing date of the initial petition “when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth.” Mayle v. Felix, 545 U.S. 644, 650 (2005). Relation back is “ordinarily allowed ‘when the new claim is based on the same facts as the original pleading and only changes the legal theory[.]'” Id. at 664 n.7 (quoting 3 J. Moore, et al., Moore's Federal Practice § 15.19[2], p. 15-82 (3d ed. 2004)).

The Amended Petition asserts claims arising out of the same events and occurrences raised in the original Petition. The Amended Petition claims are nearly identical to Petitioner's claims in the original Petition, with the addition of federal constitutional language and expanded factual support. The asserted facts in the Amended Petition do not differ in time or type from the facts asserted in the original Petition. The additions to Petitioner's claims in the Amended Petition regard the underlying legal theories for the claims by providing federal constitutional bases for each claim.

Because Petitioner's grounds for relief in the Amended Petition are supported by and arise out of the same facts and events as Petitioner's grounds for relief in the original Petition, the filing date of the Amended Petition relates back to the date of filing of the Petition. Therefore, this Report and Recommendation uses December 7, 2022, the date Petitioner placed the Petition in the prison mailing system, as the applicable filing date for the Amended Petition.

B. Starting Date of AEDPA's One-Year Limitations Period

Under AEDPA, there are four possible starting dates for the beginning of its one-year statute of limitations period:

(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 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). The latest of the applicable possible starting dates is the operative start date. Id.

Because the Amended Petition's claims arise from final judgments and sentences, AEDPA's one-year statute of limitations start date is determined by 28 U.S.C. § 2244(d)(1)(A) unless a later start date applies under 28 U.S.C. § 2244(d)(1)(B), (C), or (D). Here, the record does not present any basis for a later start date pursuant to 28 U.S.C. § 2244(d)(1)(B), (C), or (D). Under 28 U.S.C. § 2244(d)(1)(A), AEDPA's one-year statute of limitations period runs from when the judgment and sentence became “final by the conclusion of direct review or the expiration of the time for seeking such review.”

On December 15, 2017, Petitioner was sentenced for the conviction in case number CR2015-002242-002 and for probation revocation in case number CR2008-009219-001. (Doc. 11-2 at 3-8; Doc. 11-5 at 29-56) Petitioner commenced a timely direct appeal of his conviction, probation revocation, and sentences in case numbers CR2015-002242-002 and CR2008-009219-001. (Doc. 11-2 at 87) On February 5, 2019, the court of appeals affirmed Petitioner's conviction and sentence in case number CR2015-002242-002 as well as Petitioner's probation revocation and sentence in case number CR2008-009219-001. (Id. at 85-90) Petitioner did not file a motion for reconsideration in the Arizona Court of Appeals or a petition for review to the Arizona Supreme Court. (Id. at 92) Petitioner's conviction, probation revocation, and sentences thereon became final on March 7, 2019, when the time to file a petition for review expired. See Ariz. R. Crim. P. 31.19(a) (2008) (providing that a petition for review must be filed within 30 days, unless a motion for reconsideration is filed). Therefore, AEDPA's one-year statute of limitations began to run on March 8, 2019.

C. Statutory Tolling

AEDPA expressly provides for statutory tolling of the limitations period when a “properly filed application for State post-conviction or other collateral relief with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). A collateral review petition is “properly filed” when its delivery and acceptance are in compliance with state rules governing filings. Artuz v. Bennett, 531 U.S. 4, 8 (2000). This includes compliance with filing deadlines. A state post-conviction relief petition not filed within the state's required time limit is not “properly filed,” and the petitioner is not entitled to statutory tolling during those proceedings. Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (“When a post-conviction petition is untimely under state law, ‘that [is] the end of the matter' for purposes of § 2244(d)(2).”); Allen v. Siebert, 552 U.S. 3, 6 (2007) (finding that inmate's untimely state post-conviction petition was not “properly filed” under AEDPA's tolling provision, and reiterating its holding in Pace, 544 U.S. at 414). Once the statute of limitations has run, subsequent collateral review petitions do not “restart” the clock. Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003).

Petitioner's conviction, probation revocation, and sentences thereon became final on March 7, 2019, when the time for Petitioner to file a petition for review expired. On April 19, 2019, Petitioner filed his first PCR notice in case numbers CR2015-002242-002 and CR2008-009219-001. (Doc. 11-2 at 96) Thus, AEDPA's statute of limitations ran for 43 days between when Petitioner's conviction and probation revocation judgments became final and the date on which Petitioner filed his first PCR notice. The court of appeals denied relief in Petitioner's first PCR proceedings on April 6, 2021. (Doc. 11-3 at 26-27) Petitioner had thirty days to file a petition for review to the Arizona Supreme Court but did not do so. See Ariz. R. Crim. P. 32.16(a)(1). Petitioner's first PCR proceedings ceased pending for statutory tolling purposes on May 6, 2021, when no other state avenues for relief remained open to Petitioner.¹⁴ Melville, 68 F.4th at 1159-61. Without further tolling, AEDPA's limitations period recommenced on May 7, 2021, and expired 322 days later on March 24, 2022, over eight months prior to Petitioner initiating these habeas proceedings on December 7, 2022.

14 Respondents state that the court of appeals denied relief on October 6, 2021, and consequently use an erroneous date for the conclusion of Petitioner's PCR proceedings. (Doc. 11 at 10)

During the pendency of his first PCR proceedings, Petitioner filed a second PCR notice on October 12, 2020.¹⁵ (Doc. 11-3 at 29-31) On December 1, 2021, the superior court dismissed Petitioner's second PCR petition, finding that Petitioner's claims were precluded, not colorable, or inapplicable in a Rule 32 petition. (Doc. 11-5 at 16-17) The superior court did not expressly state that Petitioner's second PCR petition was untimely filed, but did refer to Petitioner having filed a direct appeal and having filed a previously denied first PCR petition. (Id.)

15 Petitioner's first PCR petition for review was pending in the Arizona Court of Appeals.

Respondents assert that Petitioner's second PCR proceedings did not toll the limitations period because Petitioner's second PCR petition raised precluded claims and was not properly filed. (Doc. 11 at 10) Although untimely filed PCR applications are not properly filed, “whether an application has been ‘properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar.” Artuz v. Bennett, 531 U.S. 4, 9 (2000). In Evans v. Chavis, 546 U.S. 189, 198 (2006), the United States Supreme Court found that where the state court did not clearly rule that a PCR petition was untimely, this Court “must itself examine the delay in each case and determine what the state courts would have held in respect to timeliness.”

Petitioner's PCR notice in case numbers CR2015-002242-002 and CR2008-009219-001 was due within 90 days of the oral pronouncement of sentence or within 30 days after the issuance of a mandate in his direct appeal, whichever was later, unless Petitioner raised claims pursuant to Ariz. R. Crim. P. 32.1(b) through (h). Ariz. R. Crim. P. 32.4(a)(2)(D) (now Ariz. R. Crim. P. 32.4(b)(3)). The court of appeals issued its mandate in Petitioner's direct appeal on March 20, 2019, and Petitioner's PCR petition was due thirty days later on April 19, 2019.¹⁶ Petitioner's second PCR notice, filed on October 12, 2020, was untimely filed. Petitioner's second PCR petition did not raise a claim pursuant to Ariz. R. Crim. P. 32.1(b) through (h) that would excuse the untimely filing of Petitioner's second PCR proceedings. Accordingly, Respondents are correct that Petitioner's second PCR petition was not “properly filed” under 28 U.S.C. § 2244(d). See Quinerly v. Attorney General of Arizona, 2021 WL 3775169, at *3-4 (D. Ariz. July 29, 2021) (adopted at 2021 WL 3773767, at *1 (D. Ariz. Aug. 25, 2021)) (second PCR not timely where superior court summarily dismissed PCR petition).

16 If the deadline for Petitioner's PCR notice was calculated from Petitioner's sentencing in case numbers CR2015-002242-002 and CR2008-009219-001 on December 15, 2017, Petitioner's PCR notice would have been due ninety days later on March 15, 2018.

Accordingly, Petitioner's first PCR proceedings tolled AEDPA's limitations period from April 19, 2019, when Petitioner filed his first PCR notice, through May 6, 2021, when no other state avenues for relief remained open to Petitioner. AEDPA's limitations period expired 322 days later on March 24, 2022. These proceedings, which Petitioner initiated on December 7, 2022, over eight months after the expiration of AEDPA's limitations period, are untimely unless Petitioner demonstrates that equitable tolling or the actual innocence gateway applies to render these proceedings timely filed.

D. Equitable Tolling

The U.S. Supreme Court has held “that § 2244(d) is subject to equitable tolling in appropriate cases.” Holland v. Florida, 560 U.S. 631, 645 (2010). AEDPA's limitations period may be equitably tolled because it is a statute of limitations, not a jurisdictional bar. Id. at 645-46. Petitioner bears the burden of establishing that equitable tolling is warranted. Pace, 544 U.S. at 418; Rasberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir. 2006) (“Our precedent permits equitable tolling of the one-year statute of limitations on habeas petitions, but the petitioner bears the burden of showing that equitable tolling is appropriate.”).

The Ninth Circuit Court of Appeals will permit equitable tolling of AEDPA's limitations period “only when an extraordinary circumstance prevented a petitioner acting with reasonable diligence from making a timely filing.” Smith v. Davis, 953 F.3d 582, 600 (9th Cir. 2020) (en banc). Put another way, for equitable tolling to apply, Petitioner must show “(1) that he has been pursuing his rights diligently and (2) that some extraordinary circumstances stood in his way” to prevent him from timely filing a federal habeas petition. Holland, 560 U.S. at 649 (quoting Pace, 544 U.S. at 418). To meet the first prong, Petitioner “must show that he has been reasonably diligent in pursuing his rights not only while an impediment to filing caused by an extraordinary circumstance existed, but before and after as well, up to the time of filing his claim in federal court.” Smith, 953 F.3d at 59899 (expressly rejecting the “stop-clock” approach to equitable tolling). The second prong is met “only when an extraordinary circumstance prevented a petitioner acting with reasonable diligence from making a timely filing.” Id. at 600.

“The diligence required for equitable tolling purposes is reasonable diligence, not maximum feasible diligence.” Id. at 653 (internal citations and quotations omitted). Whether to apply the doctrine of equitable tolling “‘is highly fact-dependent,' and [the petitioner] ‘bears the burden of showing that equitable tolling is appropriate.'” EspinozaMatthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005) (internal citations omitted); see also Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (stating that equitable tolling is “unavailable in most cases,” and “the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule”) (citations and internal emphasis omitted).

In addition, there must be a causal link between the extraordinary circumstance and the inability to timely file the petition. Sossa v. Diaz, 729 F.3d 1225, 1229 (9th Cir. 2013) (“[E]quitable tolling is available only when extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time and the extraordinary circumstances were the cause of the prisoner's untimeliness.”). A literal impossibility to file, however, is not required. Grant v. Swarthout, 862 F.3d 914, 918 (9th Cir. 2017) (stating that equitable tolling is appropriate even where “it would have technically been possible for a prisoner to file a petition,” so long as the prisoner “would have likely been unable to do so.”).

A petitioner's pro se status, indigence, limited legal resources, ignorance of the law, or lack of representation during the applicable filing period do not constitute extraordinary circumstances justifying equitable tolling. See, e.g., Rasberry, 448 F.3d at 1154 (“[A] pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling.”); see also Ballesteros v. Schriro, 2007 WL 666927, at *5 (D. Ariz. Feb. 26, 2007) (a petitioner's pro se status, ignorance of the law, lack of representation during the applicable filing period, and temporary incapacity do not constitute extraordinary circumstances). A prisoner's “proceeding pro se is not a ‘rare and exceptional' circumstance because it is typical of those bringing a § 2254 claim.” Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000).

Although Petitioner does not expressly argue that he is entitled to equitable tolling, in his reply in support of the Amended Petition, Petitioner asserts that his Petition is not time-barred because his claims as asserted in the Amended Petition and as previously asserted in his second PCR petition are a result of newly discovered evidence. (Doc. 12 at 1) Petitioner does not assert what constitutes such newly discovered evidence, nor when he discovered such evidence. Petitioner states that such new evidence was not discovered in time for his direct appeal, but Petitioner does not assert that he discovered such evidence following the conclusion of his first and second PCR proceedings and prior to filing this habeas action.

Moreover, Petitioner asserted in his March 2019 motion to modify his sentence that the trial court improperly failed to consolidate his prior convictions for sentencing purposes. (Doc. 11-2 at 38-39) Further, in November 2019, Petitioner asserted in his first PCR petition that the state court judges received an improper financial gain from Petitioner's cases. (Id. at 102, 109) Petitioner's assertions in his March 2019 motion to modify his sentence and his subsequent first PCR petition demonstrate that Petitioner knew the factual bases for his Grounds Two and Four claims at the time of his first PCR proceedings, yet Petitioner did not file a timely federal habeas action following the April 2021 conclusion of his first PCR proceedings.

In his reply in support of the Amended Petition, Petitioner merely asserts that this Court should “review the evidence in this case hidden or ignored by the State” and that he believes “that the lower courts did not even review the issues or evidence before ruling[.]” (Doc. 12 at 2) Petitioner's assertions do not establish that any extraordinary circumstance prevented him from filing a timely habeas Petition following the discovery of alleged newly discovered evidence. Further, Petitioner does not show that he was “pursuing his rights diligently” both prior to and following the alleged discovery of new evidence, nor that he filed this habeas action timely after such discovery. Holland, 560 U.S. at 649.

Because Petitioner has not met his burden of demonstrating that equitable tolling applies, these proceedings were untimely filed unless the actual innocence gateway applies to render these proceedings timely filed.

E. Actual Innocence

In McQuiggin v. Perkins, 569 U.S. 383, 391-396 (2013), the Supreme Court held that the “actual innocence gateway” to federal habeas review that applies to procedural bars in Schlup v. Delo, 513 U.S. 298, 327 (1995), and House v. Bell, 547 U.S. 518 (2006), extends to petitions that are time-barred under AEDPA. See Schlup, 513 U.S. at 329 (petitioner must make a credible showing of “actual innocence” by “persuad[ing] the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.”).

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. U.S., 523 U.S. 614, 623 (1998); Jaramillo v. Stewart, 340 F.3d 877, 882-83 (9th Cir. 2003). 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 v. Perkins, 569 U.S. 383, 399 (2013) (quoting Schlup, 513 U.S. at 327). “To be credible, such a claim 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 v. Lampert, 653 F.3d 929, 945 (9th Cir. 2011); McQuiggin, 569 U.S. at 399 (explaining the significance of an “[u]nexplained delay in presenting new evidence”). Because of “the rarity of such evidence, in virtually every case, the allegation of actual innocence has been summarily rejected.” Shumway v. Payne, 223 F.3d 982, 990 (9th Cir. 2000) (citing Calderon v. Thompson, 523 U.S. 538, 559 (1998)).

Petitioner does not argue in his Amended Petition or reply in support that he is actually innocent of his conviction in case number CR2015-002242-002 or his probation violation in case number CR2008-009219-001. To his Amended Petition, Petitioner attaches the court of appeals' memorandum decision granting review but denying relief on his second PCR petition for review and the superior court's order dismissing Petitioner's second PCR petition. (Doc. 5 at 19-22) To his reply in support of the Amended Petition, Petitioner attaches an excerpt from the transcript of trial court proceedings on August 16, 2017, in case number CR2015-002242-002 (Doc. 12-1 at 3-5), a Scottsdale Police Department incident report dated January 22, 2015 (Id. at 7), a special warrant issued January 22, 2015, and a February 2015 warrant return (Id. at 9-11), a February 2015 Scottsdale Police Department Electronic Date Forensic Analysis Request Form for the contents of a computer, cell phones, and thumb drive (Doc. 12-2 at 2), Petitioner's September 2009 plea agreement in case number CR2008-009219-001 (Doc. 12-3 at 2-8), the 2020 Comprehensive Annual Financial Report for public safety personnel, elected officials, and corrections officers' retirement plans (Id. at 10-12), “ESMA Compliance Quarterly Membership Weights” (Id. at 14-15), an undated Form 13F Information Table from the United States Securities and Exchange Commission (Id. at 17-19), and a per curiam opinion from the United States Supreme Court in Rippo v. Baker, 580 U.S. 285, 137 S.Ct. 905 (2017) (Id. at 21-22). The majority of Petitioner's attachments are legal documents or existed at the time of Petitioner's conviction, probation revocation, and sentences. The 2020 Comprehensive Annual Financial Report, the “ESMA Compliance Quarterly Membership Weights[,]” and the Form 13F are not new reliable evidence that would likely prevent a jury from convicting Petitioner, nor does Petitioner argue such. Petitioner argues that such documents demonstrate that the evidence in his case is “fruit from the poisonous tree” and that his convictions and sentences are unconstitutional (Doc. 12 at 8-11), but he does not argue that he is factually innocent of the crime of his conviction and probation violation that led to probation revocation.

Because Petitioner does not even argue, let alone establish, that his attachments demonstrate actual innocence or that his attachments are new reliable evidence that would more likely than not prevent a jury from convicting him, the actual innocence gateway does not apply.

F. These Proceedings Are Untimely Under AEDPA

As explained above, these habeas proceedings were untimely filed, and neither statutory tolling, equitable tolling, nor the actual innocence gateway render this action timely filed. These untimely proceedings should be dismissed with prejudice and terminated.

IV. PROCEDURAL DEFAULT

In addition to asserting that these proceedings were untimely filed, Respondents assert that Petitioner's claims in the Amended Petition are procedurally defaulted without excuse. (Doc. 11 at 11-17)

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 postconviction relief barred petitioner from returning to state court to exhaust his claims). This is called an implied procedural bar. Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). This type of procedural default is often referred to as “technical” exhaustion because although the claim was not actually exhausted in state court, Petitioner no longer has an available state remedy. Coleman, 501 U.S. at 732 (“A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no remedies any longer ‘available' to him.”).

In Arizona, claims not properly presented to the state courts are generally barred from federal review because an attempt to return to state court to present them is futile unless the claims fit in a narrow category of claims for which a successive petition is permitted. See former rules Ariz. R. Crim. P. 32.2(a) (precluding claims not raised on appeal or in prior petitions for post-conviction relief), 32.4(a) (time bar), 32.1(d)-(h), 32.9(c) (petition for review must be filed within thirty days of trial court's decision); see also current rules Ariz. R. Crim. P. 32.4(b)(3) (time bar); Ariz. R. Crim. P. 32.1(b) through (h) and 32.2(b) (permitting successive PCR proceedings on certain grounds and specified circumstances); 32.16(a)(1) (petition for review must be filed within thirty days of trial court's decision).¹⁷

17 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 Grounds One Through Four are Unexhausted

As set forth below, all of the Amended Petition grounds are unexhausted.

1. Ground One

In Ground One of the Amended Petition, Petitioner asserts that a search warrant in case number CR2015-002242-002 was issued after the search was conducted, violating Petitioner's Fourth, Fifth, and Fourteenth Amendment rights. (Doc. 5 at 5-6, 15)

Petitioner did not raise his Ground One claim in his direct appeal of his conviction, probation revocation, and sentences, where he was required to raise such. Swoopes, 196 F.3d at 1010. Petitioner did not raise his Ground One claim in his first PCR petition in the superior court or in his first petition for review in the court of appeals. Petitioner did not raise his Ground One claim to the state court until his second PCR petition for review in the superior court. (Doc. 11-4 at 5-6, 17-18)

Although Petitioner raised his Ground One claim during his second PCR proceedings, Petitioner's Ground One claim was not properly exhausted because Petitioner did not present his Ground One claim to the court of appeals in a procedurally appropriate manner. A petitioner “is precluded from relief under Rule 32.1(a) based on any ground [] 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.” Ariz. R. Crim. P. 32.2(a)(3). A petitioner may file a successive PCR petition where a claim falls within the exceptions of Rule 32.1(b) through (h) and a petitioner can explain why the claim was not previously raised or presented in a timely manner. Ariz. R. Crim. P. 32.2(b). Petitioner's Ground One claim does not fall within the exceptions of Rule 32.1(b) through (h), nor does Petitioner's Ground One raise “a violation of a constitutional right that can only be waived knowingly, voluntarily, and personally by the defendant.” Ariz. R. Crim. P. 32.2(a)(3).

Because Petitioner did not properly present his Ground One claim to the state courts in his direct appeal, where he was required to raise such, Petitioner's Ground One claim was not properly exhausted for purposes of federal habeas review.

2. Ground Two

In Ground Two of the Amended Petition, Petitioner asserts that he was erroneously sentenced in case number CR2015-002242-002 because the trial court did not consolidate Petitioner's two prior felonies in case numbers CR2008-009219-001 and CR2009-005858-001. (Doc. 5 at 7-8, 16) Petitioner argues that if the trial court had consolidated Petitioner's prior felonies, Petitioner would have been sentenced based on only one prior conviction. (Id.) Petitioner argues that his erroneous sentence violates his Fifth, Eighth, and Fourteenth Amendment rights. (Id.)

Petitioner did not raise his Ground Two claim in his direct appeal of his conviction, probation revocation, and sentences, where he was required to raise such. Swoopes, 196 F.3d at 1010. Although Petitioner asserted in his March 13, 2019, motion to modify his sentence that the trial court should have sentenced Petitioner based on one consolidated prior felony (Doc. 11-2 at 38-39), Petitioner did not raise his Ground Two claim in his first PCR petition in the superior court. Even if Petitioner had properly raised his Ground Two claim in his motion to modify his sentence, Petitioner did not raise his Ground Two claim in his first petition for review in the court of appeals. Petitioner did not raise his Ground Two claim to the state court until his second PCR petition for review in the superior court. (Doc. 11-4 at 5, 16-17)

Although Petitioner raised his Ground Two claim during his second PCR proceedings, Petitioner's Ground Two claim was not properly exhausted because Petitioner did not present his Ground Two claim to the state courts in a procedurally appropriate manner. A petitioner “is precluded from relief under Rule 32.1(a) based on any ground [...] 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.” Ariz. R. Crim. P. 32.2(a)(3). A petitioner may file a successive PCR petition where a claim falls within the exceptions of Rule 32.1(b) through (h) and a petitioner can explain why the claim was not previously raised or presented in a timely manner. Ariz. R. Crim. P. 32.2(b). Petitioner's Ground Two claim does not fall within the exceptions of Rule 32.1(b) through (h), nor does Petitioner's Ground Two claim raise “a violation of a constitutional right that can only be waived knowingly, voluntarily, and personally by the defendant.” Ariz. R. Crim. P. 32.2(a)(3).

Because Petitioner did not properly present his Ground Two claim to the state courts during his direct appeal, where he was required to raise such, Petitioner's Ground Two claim was not properly exhausted for purposes of federal habeas review.

3. Ground Three

In Ground Three of the Amended Petition, Petitioner asserts that no search warrant was issued for the contents of cell phones or computers, in violation of the Fourth, Fifth, and Fourteenth Amendments. (Doc. 5 at 8-9, 17)

Petitioner did not raise his Ground Three claim in his direct appeal of his conviction, probation revocation, and sentences, where he was required to raise such. Swoopes, 196 F.3d at 1010. Petitioner did not raise his Ground Three claim in his first PCR petition in the superior court or in his first petition for review in the court of appeals. Petitioner did not raise his Ground Three claim in state court until his second PCR petition for review in the superior court. (Doc. 11-4 at 5-6, 17-18)

Although Petitioner raised his Ground Three claim during his second PCR proceedings, Petitioner's Ground Three claim was not properly exhausted because Petitioner did not present his Ground Three claim to the state courts in a procedurally appropriate manner. A petitioner “is precluded from relief under Rule 32.1(a) based on any ground [...] 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.” Ariz. R. Crim. P. 32.2(a)(3). A petitioner may file a successive PCR petition where a claim falls within the exceptions of Rule 32.1(b) through (h) and a petitioner can explain why the claim was not previously raised or presented in a timely manner. Ariz. R. Crim. P. 32.2(b). Petitioner's Ground Three claim does not raise “a violation of a constitutional right that can only be waived knowingly, voluntarily, and personally by the defendant.” Ariz. R. Crim. P. 32.2(a)(3). Petitioner's Ground Three claim does not fall within the exceptions of Rule 32.1(b) through (h).

Because Petitioner did not properly present his Ground Three claim to the state courts during his direct appeal, where he was required to raise such, Petitioner's Ground Three claim was not properly exhausted for purposes of federal habeas review.

4. Ground Four

In Ground Four of the Amended Petition, Petitioner asserts that Arizona state judges “receive extrajudicial pecuniary interest in the outcome of the case[,]” violating Petitioner's Fifth and Fourteenth Amendment rights. (Doc. 5 at 10-11, 18) In support of his Ground Four argument, Petitioner asserts that Arizona state judges' retirement plans are invested in private prison corporations that operate in Arizona and that Arizona state judges receive “delayed compensation” through these investments. (Id. at 18)

Petitioner did not raise his Ground Four claim in his direct appeal of his conviction, probation revocation, and sentences, where he was required to raise such. Swoopes, 196 F.3d at 1010. Although Petitioner stated in his first PCR petition that “all judges have a bias due [sic] the fact that all judges have a pecuniary interest in all cases[,]” Petitioner did not present a federal legal theory for his Ground Four claim in his first PCR petition, nor did he provide further factual support for such a claim. Even if Petitioner could have first raised his Ground Four claim in his first PCR proceedings, Petitioner did not fairly present his Ground Four claim in his first PCR proceedings. McFadden, 399 F.3d at 999 (claim not fairly presented where petitioner did not present factual basis or federal legal theory). Petitioner did not raise his Ground Four claim until his second PCR petition in the superior court. (Doc. 11-4 at 7-13, 15-16, 19-30)

Although Petitioner raised his Ground Four claim during his second PCR proceedings, Petitioner's Ground Four claim was not properly exhausted because Petitioner did not present his Ground Four claim to the state courts in a procedurally appropriate manner. A petitioner “is precluded from relief under Rule 32.1(a) based on any ground [...] 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.” Ariz. R. Crim. P. 32.2(a)(3). A petitioner may file a successive PCR petition where a claim falls within the exceptions of Rule 32.1(b) through (h) and a petitioner can explain why the claim was not previously raised or presented in a timely manner. Ariz. R. Crim. P. 32.2(b). Petitioner's Ground Four claim does not assert “a violation of a constitutional right that can only be waived knowingly, voluntarily, and personally by the defendant.” Ariz. R. Crim. P. 32.2(a)(3). Petitioner's Ground Four claim does not fall within the exceptions of Rule 32.1(b) through (h).

Because Petitioner did not fairly present his Ground Four claim to the state courts during his direct appeal, where he was required to raise such,¹⁸ Petitioner's Ground Four claim was not properly exhausted for purposes of federal habeas review.

18 And Petitioner did not fairly present Ground Four in his first PCR proceedings.

C. Amended Petition Grounds One Through Four are Procedurally Defaulted

As set forth above, Amended Petition Grounds One Through Four were not properly exhausted. In addition, Amended Petition Grounds One Through Four are expressly procedurally defaulted because the state courts applied a plain procedural bar to these claims. See Ariz. R. Crim. P. 32.2(a)(2) (defendant precluded from relief pursuant to Rule 32.1(a) on ground finally adjudicated on the merits in an appeal or previous PCR proceeding); Ariz. R. Crim. P. 32.2(a)(3) (defendant precluded from relief pursuant to Rule 32.1(a) on ground that was waived at trial, on appeal, or in previous PCR proceeding).

In Petitioner's second PCR proceedings, Petitioner raised his Grounds One through Four claims. The superior court found that Petitioner's Grounds One through Four claims were precluded pursuant to Ariz. R. Crim. P. 32, which precludes claims which could have been raised on direct appeal or were previously adjudicated in Rule 32 proceedings.¹⁹ (Doc. 11-5 at 16-17) The court of appeals determined that the superior court had not abused its discretion in denying Petitioner's second PCR petition claims as precluded. (Id. at 27) The application of a procedural bar was adequate and independent of federal law. See Stewart, 536 U.S. at 860 (determinations made under Arizona's procedural default rule are “independent” of federal law); Smith, 241 F.3d at 1195 n.2 (Arizona's procedural default rule is regularly followed, i.e., adequate). Further, Petitioner does not argue that he is able to return to state court to exhaust his claims, nor does the record support such an argument.

19 Even if the state court record is construed that Petitioner fairly presented his Grounds Two and Four claims in his first PCR proceedings, the superior court determined that Petitioner's claims were precluded under Ariz. R. Crim. P. 32.2 for failure to be raised in Petitioner's direct appeal. (Doc. 11-3 at 12-14)

Accordingly, Petitioner's Grounds One through Four claims are procedurally defaulted.

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

To excuse the procedural default of Grounds One through Four, Petitioner bears the burden of establishing either (1) both cause and actual prejudice, or (2) a miscarriage of justice/actual innocence. Coleman, 501 U.S. at 750.

1. Cause and Prejudice Not Established

In his Amended Petition and reply in support, Petitioner does not assert that any “objective factor external to the defense” prevented him from asserting his Grounds One through Four claims in state court. Coleman, 501 U.S. at 753. Petitioner has not sufficiently explained his failure to present his Grounds One through Four claims to the state courts during his direct appeal. Although Petitioner states in his reply in support of the Amended Petition that he did not raise his Grounds One through Four claims until his second PCR proceedings because the supporting evidence for such claims was newly discovered by Petitioner's investigator (Doc. 12 at 1-2), Petitioner provides no timeline for the discovery of such evidence, nor does he assert how such evidence was previously unobtainable. Petitioner has not made a sufficient “showing that the factual or legal basis for a claim was not reasonably available[.]” Murray v. Carrier, 477 U.S. 478, 488 (1986). Moreover, although he failed to present the factual and federal legal basis for his Ground Four claim in his first PCR proceedings, Petitioner stated in his first PCR petition that the state judges had a pecuniary interest in his case, demonstrating that Petitioner was able to raise his Ground Four claim prior to his second PCR proceedings and prior to these habeas proceedings. As for Petitioner's Grounds One, Two, and Three claims regarding Petitioner's sentencing and search warrants executed in case number CR2015-002242-002, the factual basis for each claim existed at the time of Petitioner's direct appeal and first PCR proceedings. Petitioner has not shown that such factual bases of these claims were not reasonably available to him.

Even if Petitioner could establish cause to excuse his procedural default of Grounds One through Four, Petitioner has not shown that he suffered prejudice. Petitioner asserts that each claim in the Amended Petition demonstrates a fundamental miscarriage of justice and that the state courts failed to review Petitioner's claims and evidence before ruling on Petitioner's claims. (Doc. 12 at 1-2) However, in merely arguing that the state courts should have heard his claims, Petitioner has not shown that the state courts would find his claims to have merit. Nor has Petitioner shown that any alleged constitutional violation “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982).

Accordingly, Petitioner has not established cause and prejudice to excuse his procedural default of Amended Petition Grounds One through Four.

2. Miscarriage of Justice/Actual Innocence Standard Not Met

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.

In his reply in support of the Amended Petition, Petitioner asserts that this Court can review his procedurally defaulted claims because he has established a fundamental miscarriage of justice pertaining to each claim. (Doc. 12 at 2-11) Petitioner asserts that the state courts caused a miscarriage of justice by dismissing Petitioner's PCR proceedings and finding Petitioner's claims precluded. (Id. at 1-2) As to Grounds One and Three, Petitioner asserts a miscarriage of justice because evidence was not legally obtained, resulting in Petitioner receiving a six-year term of imprisonment. (Doc. 12 at 6-7) As to Ground Two, Petitioner asserts a miscarriage of justice because the trial court did not consolidate his two prior convictions pursuant to Buford, 532 U.S. at 59, resulting in Petitioner receiving an extended sentence based on both prior convictions. (Doc. 12 at 7) As to Ground Four, Petitioner asserts a miscarriage of justice because the state court judges had a direct financial interest in convicting Petitioner. (Doc. 12 at 8-11) Petitioner also asserts that the search warrants in case numbers CR2015-002242-002 and CR2008-009219 were invalid because they were authorized by a biased judge and that all evidence in both cases is void as fruit of the poisonous tree. (Id. at 11)

In support of his arguments, Petitioner repeats the factual and legal background of his Grounds One through Four claims. Petitioner does not assert actual innocence, nor does he establish that his case is an extraordinary case where this Court “cannot have confidence in the contrary finding of guilt.” Johnson, 541 F.3d at 937. As discussed in section III(E), supra, Petitioner has not demonstrated “new reliable evidence” that would likely prevent a jury from convicting him. Schlup, 513 U.S. at 324, 327. Petitioner's attachments to his Amended Petition and reply in support of the Amended Petition primarily existed at the time of Petitioner's conviction and sentence, and Petitioner's attachments regarding the state court retirement plans' investment in private prison corporations are not new, reliable evidence that would likely prevent a jury from convicting Petitioner of the offenses underlying his claims in the Amended Petition.

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 Grounds One through Four claims in the Amended Petition are procedurally defaulted without excuse.

V. NON-COGNIZABLE CLAIMS

A. Grounds One and Three

In Ground One of the Amended Petition, Petitioner asserts that his Fourth, Fifth, and Fourteenth Amendment rights were violated due to a search warrant being issued after a search was conducted. (Doc. 5 at 5-6, 15) In Ground Three, Petitioner asserts that his Fourth, Fifth, and Fourteenth Amendment rights were violated because no search warrant was issued for the contents of cell phones or computers. (Id. at 8-9, 17) Respondents correctly assert that Petitioner's Grounds One and Three claims are non-cognizable insofar as Petitioner asserts Fourth Amendment violations. (Doc. 11 at 15)

If the state “has provided an opportunity for a 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.” Stone v. Powell, 42 U.S. 465, 481-82 (1976). 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)).

Petitioner does not assert in his Amended Petition or reply in support of the Amended Petition that an obstacle prevented “opportunity for a full and fair litigation of”' his Fourth Amendment claims in his state court proceedings. Accordingly, insofar as Petitioner asserts a violation of the Fourth Amendment in Amended Petition Grounds One and Three, such claims are not cognizable on habeas review.

B. Ground Two

In Ground Two of the Amended Petition, Petitioner asserts that he was erroneously sentenced in case number CR2015-002242-002 because Petitioner's two prior felonies in case numbers CR2008-009219-001 and CR2009-005858-001 were not consolidated for sentencing purposes in case number CR2015-002242-002. (Doc. 5 at 7-8, 16) Petitioner asserts that the trial court's error “violated Petitioner's right to Due Process of Law granted under the 5th and 14th Amendments as well as infringing [sic] on his liberty under the same which violated his 8th Amendment protection against ‘unusual punishments inflicted.'” (Id. at 16) Petitioner relies on Buford, 532 U.S. at 59, for his Ground Two claim. (Doc. 12 at 4)

In their Limited Answer, Respondents assert that Petitioner's Ground Two claim is non-cognizable because Petitioner's Ground Two claim actually asserts a violation of state law and is not a federal constitutional claim. (Doc. 11 at 15-17) As discussed below, Respondents are correct.

This Court may only consider a habeas petition if the petitioner alleges that he “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A petitioner cannot assert an error in the state court's application of sentencing laws because such a claim does not challenge the petitioner's detention as a violation of the Constitution, a federal statute, or a treaty. See Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994) (“Absent 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) (no federal habeas relief under 28 U.S.C. § 2254 for claims of violation of state sentencing laws). Federal habeas review of a state court error is only available where “the state court's finding was so arbitrary or capricious as to constitute an independent due process or Eighth Amendment violation.” Lewis v. Jeffers, 497 U.S. 764, 780 (1990).

Although Petitioner asserts that the state court violated his Fifth and Fourteenth Amendment due process rights, as well as his Eighth Amendment right against unusual punishment, Petitioner does not argue that the state court's error was so “arbitrary or capricious as to constitute an independent due process or Eighth Amendment violation.” Id. Petitioner cannot “transform a state law issue into a federal one by merely asserting a violation of due process.” Poland v. Stewart, 169 F.3d 573, 584 (9th Cir. 1998). Further, while Petitioner asserts that his prior convictions should have been consolidated for sentencing pursuant to Buford, 532 U.S. at 59, the United States Supreme Court in Buford considered the functional consolidation of previous convictions under the United States Sentencing Guidelines applicable in federal criminal prosecutions and sentencings. Buford is inapplicable to Petitioner's state court sentencing at issue in these habeas proceedings.

Accordingly, Amended Petition Ground Two is not cognizable on habeas review.

VI. MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF (Doc. 13)

On August 10, 2023, Abolish Private Prisons Incorporated (“APP”) filed a Motion for Leave to File Amicus Curiae Brief. (Doc. 13) In its motion for leave, APP states that it “proposes to highlight the widespread investment of Arizona officials into private prison corporations and the ethical concerns such investment implicate. In particular, the proposed amicus brief uses current events, data from Arizona, and the framework of model rules of judicial ethics to show how private prison investment creates an appearance of impropriety.” (Id. at 2) In its proposed amicus curiae brief, APP self describes as:

a tax-exempt Arizona nonprofit corporation and a public interest law firm based in Phoenix. Along with other criminal justice work, APP provides legal services to people incarcerated in private for-profit prisons. APP contends that private incarceration is unlawful and that criminal justice should not be influenced by profit.

(Doc. 13-1 at 3) In its proposed amicus curiae brief, APP asserts that Petitioner “is incarcerated by the Arizona Department of Corrections, Rehabilitation & Reentry (ADCRR) in ASP Phoenix West, a for-profit private prison operated by The GEO Group” and that the Amended Petition raises a claim regarding the state court retirement plan's investments in private prison corporations: “Petitioner Ferguson's petition asserts a due process violation in his trial and/or sentencing based on actual and/or structural bias as the result of the trial's court's retirement plan investments.” (Id.) Through the amicus curiae brief, APP “seeks to provide the Court with more background regarding such investments.” (Id.)

In its motion for leave, APP states that Petitioner had no objection to APP's filing of an amicus curiae brief. (Doc. 13 at 1) Respondents filed a response in opposition to APP's motion for leave, opposing the motion for two reasons:

First, the procedural posture of [Petitioner's] case is not amenable to briefing on the merits. Ferguson's claim is time-barred under 28 U.S.C. § 2244(d)(1)(A), see dkt. 11 at 8-11, precluding habeas review. Pace v. DeGuglielmo, 544 U.S. 408, 419 (2005). Furthermore, [Petitioner]'s claim is procedurally barred without excuse. Dkt. 11 at 17. It has not been and cannot be adjudicated on its merits by the state courts in a procedurally appropriate manner as required by 28 U.S.C. § 2254(b)(1)(A). See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Coleman v. Thompson, 501 U.S. 722, 731 (1991); Wooten v. Kirkland, 540 F.3d 1019, 1023, 1025 (9th Cir. 2008).

Second, federal habeas review is limited to the state-court record. Shinn v. Ramirez, 142 S.Ct. 1718, 1732 (2022); Cullen v. Pinholster, 563 U.S. 170, 180 (2011). AAP's proposed brief “uses current events” and “data from Arizona” in support of its argument, none of which appears in the state court record. Dkt. 13 at 3; Dkt. 13-1 at 3-4, 6-9. Therefore, this case is not a proper vehicle for the advancement of APP's position[.]

(Doc. 14 at 2)

A district court has broad discretion as to the filing of amicus curiae briefs. Hoptowit v. Ray, 682 F.2d 1237, 1260 (9th Cir. 1982) (abrogated on other grounds by Sandin v. Conner, 515 U.S. 472 (1995)). A court might allow an amicus curiae brief “when a party is not represented competently or is not represented at all, when the amicus has an interest in some other case that may be affected by the decision in the present case (though not enough affected to entitle the amicus to intervene and become a party in the present case), or when the amicus has unique information or perspective that can help the court beyond the help that the lawyers for the parties are able to provide.” Ryan v. Commodity Futures Trading Comm'n, 125 F.3d 1062, 1063 (7th Cir. 1997) (citing Miller-Wohl Co., Inc. v. Comm'r of Lab. & Indus. State of Mont., 694 F.2d 203 (9th Cir. 1982)).

This case does not present an appropriate forum to litigate the issues raised in APP's proposed amicus curiae brief. Although Petitioner is not represented in this case, Petitioner has no constitutional right to counsel in federal habeas proceedings. See Earls v. Hernandez, 403 F.Supp.2d 985, 990 (C.D. Cal. 2005) (citing Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (no “constitutional right to counsel when mounting collateral attacks upon their convictions”)). APP does not show that it has an interest in this case that would affect APP's interests in another case. Further, as discussed supra and as Respondents correctly assert, Petitioner's Amended Petition was untimely filed, and Petitioner's claims in the Amended Petition, including Ground Four which the proposed amicus curiae brief concerns, are procedurally barred without excuse. APP's arguments in the proposed amicus curiae brief pertain to the merits of Petitioner's Ground Four claim, not to the timeliness or procedural default of Petitioner's claim. Because Petitioner's claims, including Ground Four, are procedurally barred and Petitioner has not shown cause and prejudice, a fundamental miscarriage of justice, or actual innocence to excuse the procedural bars, this Court cannot review the merits of Petitioner's claims. APP's proposed amicus curiae brief would not aid the Court in its determination regarding the Amended Petition and cannot excuse Petitioner's untimely filing of these proceedings or the procedural default of the claims in the Amended Petition.

Even if Petitioner had properly exhausted the four grounds asserted in the Amended Petition, this Court would be limited to the state court record in these habeas proceedings. Shinn v. Ramirez, 596 U.S. 366, 378 (2022) (when claim is exhausted, “the federal court may review the claim based solely on the state-court record”). As APP states in its motion for leave, APP's proposed amicus curiae brief “uses current events, data from Arizona, and the framework of model rules of judicial ethics[,]” none of which appear in the portions of the state court record Respondents filed with their Limited Answer or in the state court record more generally. (Doc. 13 at 2) Similarly, even if Petitioner had shown sufficient cause and prejudice or a miscarriage of justice to excuse his procedural default, Petitioner would have to “show that factual development in federal court is appropriate.” Id. at 379. Neither Petitioner nor APP has done so.

Accordingly, APP's Motion for Leave to File Amicus Curiae Brief (Doc. 13) should be denied.

VII. CONCLUSION

For the reasons set forth above, these proceedings were untimely filed, Amended Petition Grounds One through Four are procedurally defaulted without excuse, Amended Petition Ground Two is non-cognizable in these proceedings, and Amended Petition Grounds One and Three are non-cognizable insofar as Petitioner asserts Fourth Amendment violations. 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. Also as set forth above, it is further recommended that APP's Motion for Leave to File Amicus Curiae Brief (Doc. 13) be denied.

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).

Accordingly, IT IS RECOMMENDED that Petitioner Charles Ferguson's Amended Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Doc. 5) be dismissed and denied with prejudice and that the Clerk of Court be directed to terminate this matter.

IT IS FURTHER RECOMMENDED that the Motion for Leave to File Amicus Curiae Brief (Doc. 13) filed by Abolish Private Prisons Incorporated (“APP”) be denied.

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.