Opinion
Civ 05-1394 PHX EHC (VAM).
November 16, 2005
REPORT AND RECOMMENDATION
TO THE HONORABLE EARL H. CARROLL, U.S. DISTRICT JUDGE.
Lawrence Eugene Greer ("petitioner") filed a pro se Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Petitioner raises four grounds for relief in the amended petition. (Doc. 4 at pp. 5-8). Respondents filed an answer opposing the granting of habeas relief. (Doc. 14, 15 and 16).
BACKGROUND
On September 26, 2001, petitioner was convicted in Maricopa County Superior Court on one count of aggravated assault-disfigurement. (Doc. 15, Exhibit A at 46). The prosecution also alleged petitioner had six prior felony convictions. (Id. at 7). On October 26, 2001, the trial court held a trial on the prior historical felony convictions and found the State had proved two. (Id., Exhibit B at 51). As a result of this finding, the Court sentenced petitioner to a prison term of 12 years. (Id., Exhibit B at 51; Exhibit E at 15-16, 21-25).
Petitioner appealed to the Arizona Court of Appeals. His attorney filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). (Doc. 15 at Exhibit F). Although, as noted by the Arizona Court of Appeals, petitioner's pro se appeal did not clearly raise any issue, reading his appeal brief liberally, it appears petitioner raised an allegation of "suppression of evidence" in violation of Brady v. Maryland, 373 U.S. 83 (1963) as well as a claim of coercing witnesses to commit perjury. (See Doc. 15, Exhibit G at pp. 2-3). In addition, the Arizona Court of Appeals addressed claims presented in a motion to dismiss that was attached to his appeal brief. In the motion to dismiss, petitioner alleged that certain evidence should be precluded at trial because the prosecution failed to respond to discovery requests in violation of Ariz.R.Crim.P. 15.1(a)(4) and that this failure also violated his speedy trial rights. (Id., Exhibit G, Motion to Dismiss at pp. 1-2).
In a memorandum opinion filed on January 9, 2003, the Arizona Court of Appeals affirmed petitioner's conviction and sentence. (Doc. 16, Exhibit H at p. 4). In affirming, the Arizona Court of Appeals denied on the merits his claim that evidence should have been precluded at trial due to the prosecutions failure to respond to discovery requests. The court stated that any claims petitioner raised alleging coersion of witnesses to give perjured testimony and failing to disclose exculpatory evidence in violation of Brady should be raised in a post-conviction relief petition where an evidentiary hearing may be held. (Id.).
Petitioner initiated a post-conviction relief petition pursuant to Ariz.R.Crim.P. 32.1 on January 23, 2003. (Doc. 15 at Exhibit I). Eventually, petitioner filed a pro se Rule 32 petition. Reading his rambling 20-plus page brief liberally, it appears he raises claims of both a Brady violation and prosecutorial use of perjured testimony, as well as a claim of ineffective assistance of counsel for failing to test the substance of the prosecution's case. (See Doc. 16 at Exhibit O).
The State sought dismissal of the petition arguing it did not comply with Ariz.R.Crim.P. 32.5 in that petitioner failed to certify he was raising "every ground known to him or her for vacating, reducing, correcting or otherwise changing all judgments or sentences imposed" and for failing to submit an affidavit attesting to the fact he had personal knowledge of all facts raised in the petition. (Doc. 16 at Exhibit P). The State asked that the petition be dismissed and that petitioner be given 30 days to file a new petition in compliance with Rule 32.5.
The trial court issued a minute order directing petitioner to address these deficiencies outlined by the State. Petitioner filed additional briefs which the State contended still failed to comply with Rule 32.5. (See Doc. 16 at Exhibits Q, R, S). Eventually, on March 17, 2004, the trial court entered a minute order dismissing the Rule 32 petition. (Doc. 16 at Exhibit AA). Petitioner filed what the trial court characterized as a motion to reconsider but the motion was denied. (Id. at Exhibits BB, DD and EE).
It appears that petitioner sought review before the Arizona Court of Appeals but his petition for review was denied as untimely, but noted that petitioner could return to the trial court and attempt to provide an excuse for the untimeliness which, if granted, would allow him to proceed with the petition for review. (Doc. 16 at Exhibit FF). On approximately July 21, 2004, petitioner did ask the trial court for permission to file an untimely petition for review, (see id. at Exhibit GG), but then on July 28, 2004, petitioner filed a petition for review in the Arizona Supreme Court. (Id. at Exhibit HH). The Arizona Supreme Court denied the petition for review without comment on November 8, 2004. (Id. at Exhibit LL).
On December 7, 2004, petitioner filed a paper entitled 28 USC 2254 in the trial court. (Doc. 16 at Exhibit MM). Petitioner appears to have raised the following claims in the second Rule 32: (1) the prosecution used perjured testimony at trial; (2) the state failed to disclose evidence favorable to petitioner in violation of Brady; and (3) appellate counsel rendered ineffective assistance. (See id.). On December 23, 2004, the trial court denied the petition finding that all claims were barred pursuant to Ariz.R.Crim.P. 32.2(a) because they could have been raised in petitioner's direct appeal or his first Rule 32 petition. (Doc. 16 at Exhibit NN). Petitioner filed a petition for review with the Arizona Court of Appeals but the court held that his February 1, 2005, petition for review was untimely. (Id. at Exhibit OO). On July 7, 2005, the Arizona Court of Appeals denied the petition for review without comment. (Doc. 11 at Attachment).
On May 11, 2005, petitioner filed for federal habeas relief. Subsequently, petitioner filed an amended petition. The amended petition makes no sense and does not coherently raise any issue. The Court interprets the issues as follows:
GROUND I: Ineffective Assistance of Counsel —
The prosecution introduced perjured testimony
GROUND II: Ineffective Assistance of Appellate Counsel —
"my counsel's functions vitiated my constitutional right to counsel, when he opposed my first direct appeal. . . ."
GROUND III: "In violation of due process clause of the Fifth Fourteenth Amendment [petitioner] states that he was denied due process of law when the jury was duly impanelled [sic] and sworned [sic] in I was judicially overreached."
GROUND IV: Ineffective Assistance of Counsel — counsel had a conflict of interest and ". . . mislead his client into believing that the trial judge dismissed the provisions . . ."
(Doc. 4 at pp. 5-8).
DISCUSSION
Respondents seek denial of the amended petition because they contend all claims have been procedurally defaulted.
A. Anti-Terrorism and Effective Death Penalty Act of 1996
Pursuant to 28 U.S.C. § 2254(d), the following standard for granting a federal habeas petition originating from a state court conviction applies:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable interpretation of the facts in light of the evidence presented in the State court proceedings.
The Act also codifies a presumption of correctness of state court findings of fact. 28 U.S.C. § 2254(e)(1) states that "a determination of a factual issue made by a State court shall be presumed to be correct" and the petitioner has the burden of proof to rebut the presumption by "clear and convincing evidence." As discussed more fully below, these provisions of the Act set the standard for the Court's evaluation of the merits.
The Act limits the district court's discretion to hold evidentiary hearings. 28 U.S.C. § 2254(e)(2) states:
If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that —
(A) the claim relies on —
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
A petition may be denied on the merits even though it contains unexhausted claims, and the state does not waive exhaustion except by an express waiver on the record. 28 U.S.C. § 2254(b)(2) and (3).
B. Exhaustion and Procedural Default1. Law Generally
A federal court has authority to review a federal constitutional claim presented by a state prisoner if available state remedies have been exhausted. Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (per curiam); McQueary v. Blodgett, 924 F.2d 829, 833 (9th Cir. 1991). The exhaustion doctrine, first developed in case law and codified at 28 U.S.C. § 2254, now states:
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that —
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available state corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
. . . . . . .
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.
The exhaustion requirement can be satisfied in one of two ways. First, a petitioner can fairly present his or her claims to the Arizona Court of Appeals by properly pursuing them through either the state's direct appeal process or through appropriate post-conviction relief. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999). Only one of these avenues of relief must be exhausted before bringing a habeas petition in federal court. This is true even where alternative avenues of reviewing constitutional issues are still available in state court. Brown v. Easter, 68 F.3d 1209, 1211 (9th Cir. 1995); Turner v. Compoy, 827 F.2d 526, 528 (9th Cir. 1987), cert. denied, 489 U.S. 1059 (1989).
Claims presented in habeas petitions are considered exhausted if they have been ruled upon by the Arizona Court of Appeals. However, if the sentence received is life imprisonment, the claims must be presented to the Arizona Supreme Court. Swoopes, 196 F.3d at 1010. Although a federal habeas petitioner may reformulate somewhat the claims made in state court, Tamapua v. Shimoda, 796 F.2d 261, 262 (9th Cir. 1986), rev'd in part on other grounds by Duncan v. Henry, 513 U.S. 364 1995), the substance of the federal claim must have been "fairly presented" in state court. Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam); Picard v. Connor, 404 U.S. 270, 278 (1971). While the petitioner need not recite "book and verse on the federal constitution," Picard, 404 U.S. at 277-78 (quoting Daugherty v. Gladden, 257 F.2d 750, 758 (9th Cir. 1958)), it is not enough 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, 459 U.S. at 6.
As an alternative to presenting his claims to the highest state court, a petitioner can satisfy the exhaustion requirement by demonstrating that no state remedies remained available at the time the federal habeas petition was filed. Engle v. Isaac, 456 U.S. 107, 125 (n. 28) (1982); White v. Lewis, 874 F.2d 599, 602 (9th Cir. 1989). However, this path is fraught with danger:
If state remedies are not available because the petitioner failed to comply with state procedures and thereby prevented the highest state court from reaching the merits of his claim, then a federal court may refuse to reach the merits of that claim as a matter of comity.Buffalo v. Sunn, 854 F.2d 1158, 1163 (9th Cir. 1988); see also Swoopes, 196 F.3d at 1010 (determining that the exhaustion requirement is satisfied if a petitioner presented a claim to the Arizona Court of Appeals either on direct review or via a petition for post-conviction relief). This failure to comply with reasonable state procedures is usually characterized as "procedural default," "procedural bar," or a "waiver." As discussed, exhausting state remedies by means of a procedural default is risky. The burden is on the petitioner to show that he or she has properly exhausted each claim. Dismissal of the petition is proper when the record does not show that the exhaustion requirement is met. Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981) (per curiam), cert. denied, 455 U.S. 1023 (1982). If the unavailability of state remedies is in no way the fault of the petitioner or his or her counsel, the exhaustion requirement will likely be satisfied and a federal court may reach the merits of the petitioner's habeas claims.
In many cases, however, the lack of available state remedies is a direct result of the petitioner's failure to avail himself of the state remedies in a timely or procedurally correct manner. In such instances, the petitioner has procedurally defaulted, and may not obtain federal habeas review of that claim absent a showing of "cause and prejudice" sufficient to excuse the default. Reed v. Ross, 468 U.S. 1, 11 (1984); Wainwright v. Sykes, 433 U.S. 72, 90-91 (1977); see also Teague v. Lane, 489 U.S. 288, 298 (1989); Tacho v. Martinez, 862 F.2d 1376, 1380 (9th Cir. 1988). "Cause" is the legitimate excuse for the default. Thomas v. Lewis, 945 F.2d 1119, 1123 (9th Cir. 1991). "Prejudice" is actual harm resulting from the alleged constitutional violation. Id.
Appellate defaults are examined under the same standards that apply when a defendant fails to preserve a claim during trial. Smith v. Murray, 477 U.S. 527, 533 (1986).
"Because of the wide variety of contexts in which a procedural default can occur, the Supreme Court `has not given the term "cause" precise content.'" Harmon v. Barton, 894 F.2d 1268, 1274 (11th Cir.) (quoting Reed, 468 U.S. at 13), cert. denied, 498 U.S. 832 (1990). The Supreme Court has suggested, however, that cause should ordinarily turn on some objective factor external to petitioner, for instance:
. . . a showing that the factual or legal basis for a claim was not reasonably available to counsel, (citation omitted), or that "some interference by officials," (citation omitted), made compliance impracticable, would constitute cause under this standard.Murray v. Carrier, 477 U.S. 478, 488 (1986); see also Harmon, 894 F.2d at 1275; Allen v. Risley, 817 F.2d 68, 69 (9th Cir. 1987). The standard is one of discretion intended to be flexible and yielding to exceptional circumstances. Hughes v. Idaho State Board of Corrections, 800 F.2d 905, 909 (9th Cir. 1986). The "cause and prejudice" standard is equally applicable to pro se litigants, Harmon, 894 F.2d at 1274;Hughes, 800 F.2d at 908, whether literate and assisted by "jailhouse lawyers," Tacho, 862 F.2d at 1381; illiterate and unaided, Hughes, 800 F.2d at 909, or non-English speaking.Vasquez v. Lockhart, 867 F.2d 1056, 1058 (9th Cir. 1988),cert. denied, 490 U.S. 1100 (1989).
Finally, if a claim has been found to be procedurally defaulted, the failure to establish cause for the default may be excused under exceptional circumstances. For instance:
. . . in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of showing cause for the procedural default.Murray, 477 U.S. at 496; see also Schlup v. Delo, 513 U.S. 298, 327 (1995) (to meet the Murray standard, "the 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").
2. Application of Law to Facts of the Case
Respondents contend that petitioner's habeas claims were not properly exhausted in state court and are now procedurally barred from consideration on federal habeas review. The record clearly shows that petitioner never properly exhausted his habeas claims in state court. In his direct appeal petitioner did raise a claim of failing to disclose exculpatory evidence and use of perjured testimony. However, the Arizona Court of Appeals declined to address these issues on the merits because "[t]hese kinds of issues can only be fully addressed after an evidentiary hearing . . . due to the lack of a record. The proper procedure is a Rule 32 motion . . ." (Doc. 15, Exhibit H at p. 4).
Petitioner never properly exhausted these issues, or any other issues he raised in his amended habeas petition during his two Rule 32 proceedings. Both proceedings were dismissed by the state courts as procedurally infirm. (See Doc. 16 at Exhibits AA, FF, LL, NN and OO). For this reason the claims were not properly exhausted. Moreover, the time to return to state court and raise these issues in a new Rule 32 proceeding has long since passed. Petitioner has not shown that his claims fall within any of the narrow exceptions provided under Arizona law for filing successive petitions. See Ariz.R.Crim.P. 32.4(a). As a result, petitioner has no remaining state remedies with respect to any of the claims presented in his amended habeas petition and these claims are technically exhausted. Technical exhaustion is not proper exhaustion. See Reed, 468 U.S. at 11. Unless petitioner can present cause and prejudice for failing to exhaust these claims properly, his claims are procedurally barred from consideration in a federal habeas petition.
Petitioner has not demonstrated cause for failing to present these claims in a procedurally proper manner in state court. As a result these claims are procedurally defaulted. However, the Court may ignore the procedural default if petitioner can show evidence of actual innocence such that it is more likely than not that no reasonable juror would have convicted him. Murray, 477 U.S. at 496; Schlup, 513 U.S. at 327. Petitioner has made no such showing.
IT IS THEREFORE RECOMMENDED that the Amended Petition for Writ of Habeas Corpus be denied.
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal filed pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's order and judgment. The parties shall have ten (10) days from the date of service of this Report and Recommendation within which to file specific written objections with the Court. Thereafter, the parties shall have ten (10) days within which to file a response to the objections. Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's Report and Recommendation.