Opinion
CV-21-00225-TUC-JAS (DTF)
02-27-2023
Ajelina Louise Roth Lewis, Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
HONORABLE D. THOMAS FERRARO, UNITED STATES MAGISTRATE JUDGE
Petitioner Ajelina Louise Roth Lewis (Lewis or Petitioner) presently incarcerated in Arizona State Prison Complex-Perryville in Goodyear, Arizona, filed a Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. (Doc. 1.) Respondents filed their limited answer on July 28, 2021. (Doc. 13.) The time to file a reply has passed without a reply or a motion to extend the deadline. This matter was referred to the undersigned United States Magistrate Judge for a Report and Recommendation. (Doc. 5 at 4.)
As more fully set forth below, this Court recommends the Petition be denied and this matter be dismissed.
I. BACKGROUND
a. Factual Background and Investigation
In March 2010, William Palmer was stabbed approximately twenty-five times, resulting in his death. (Doc. 13-1 at 192.) Palmer was found clutching hairs in his fist, one of which was long. Id. Palmer had been living with his uncle and Petitioner. Id. at 192-93. Palmer's uncle reported Petitioner and Palmer had been drinking heavily and arguing the night of Palmer's murder. Id. at 193. Shortly before Petitioner had moved in with Palmer, Palmer's girlfriend moved out. Id. at 192-93. She had dark long hair. Id. at 193.
b. Criminal Proceeding
In March 2010, Petitioner was charged with first-degree murder and tampering with physical evidence. Id. at 3. In 2011, a jury found her guilty as charged. State v. Lewis (Lewis II), No. 2 CA-CR 2014-0391, 2016 WL 3030138, ¶ 3 (Ariz. App. May 26, 2016). After sentencing, the trial court granted Petitioner's motion to vacate the judgment. State v. Lewis (Lewis I), No. 2 CA-CR 2011-0334, 2013 WL 440591, ¶¶ 3-4 (Ariz. App. Feb. 5, 2013). The Arizona Court of Appeals affirmed the trial court's ruling. Id. ¶¶ 1, 21.
The state elected to retry Petitioner, and in 2014, the jury convicted Petitioner of second-degree murder (a lesser-included offense) and tampering with physical evidence. (Doc. 13-1 at 8.) Neither party admitted the hairs found in Palmer's hand to the jury. Id. at 192. The trial court sentenced Petitioner to sixteen years' imprisonment for the murder conviction and 1.75 years' imprisonment for the tampering conviction, to run consecutively to the murder conviction. Id. at 13-14.
Petitioner appealed to the Arizona Court of Appeals. Id. at 18. She argued the sentencing court had deprived her of credit for presentence incarceration. Id. at 22, 25. On May 26, 2016, the appellate court affirmed the sentences. Lewis II, 2016 WL 3030138, ¶ 11. Petitioner did not file a petition for review, and the Clerk of the Court issued the mandate on July 13, 2016. (Doc. 13-1 at 58.)
c. Post-Conviction Relief Proceedings
On September 28, 2016, Petitioner filed a petition for post-conviction relief (PCR), which the post-conviction court considered as a notice of PCR. (Doc. 1-2 at 2; Doc. 13-1 at 62-66, 70.) The court found the notice of PCR was untimely under Arizona Rule of Criminal Procedure 32.4(a). Id. at 70. The court recognized that a claim for newly discovered evidence could still be raised. Id. On September 15, 2017, Petitioner filed her PCR petition. Id. at 73.
Lewis signed the petition on June 29, 2016. (Doc. 13-1 at 65.)
Effective January 1, 2020, the Arizona Supreme Court amended the post-conviction rules. Rule 32 now applies to defendants sentenced after a trial or contested probation violation hearing. Rules 33 contains the rules related to defendants who plead guilty or no contest. The amended rules apply to all cases pending on the effective date unless a court determines that "applying the rule or amendment would be infeasible or work an injustice." Ariz. Sup. Ct. Order R-19-0012 (Aug. 29, 2019). The Court cites to the current rules, as doing so is feasible and does not create an injustice.
Petitioner claimed she was actually innocent of the murder. Id. at 76. She suggested Theodore Ramos had committed the offense because of similarities to a murder which Ramos had been convicted. Id. at 77. Petitioner requested Ramos's DNA be collected and tested against hair found attached to Palmer's hand. Id. at 78. The court granted Petitioner's request for DNA testing and comparison. Id. at 155.
On July 18, 2019, Petitioner filed a supplemental petition for PCR. Id. at 158. Petitioner argued she was entitled to relief based on the newly discovered evidence. Id. at 159. A lab had tested three samples of hair that "were found clutched in William Palmer's hand after the murder." Id. at 159, 168. One hair matched Petitioner's mitochondrial DNA. Id. at 168. Mitochondrial DNA is pasted along the maternal lineage, which means "every individual in the same maternal lineage will (except in rare cases of mutation) have the identical mitochondrial DNA sequence." Id. at 167. Petitioner was excluded as a match from the other two samples. Id. at 168. None of the samples matched the samples of Palmer, Ramos, or Palmer's uncle (with whom Palmer and Petitioner had lived). Id. at 74, 196.
On November 6, 2019, the post-conviction court found Petitioner had failed "to present a colorable claim." Id. at 197-99. The court particularly noted that the samples and procedures were available during her trials; thus, it concluded Petitioner had not been diligent in discovering facts and bringing them to the court's attention. Id. at 197-98. The court denied the petition for PCR. Id. at 200.
Petitioner filed a petition for review with the Arizona Court of Appeals. (Doc. 13-2 at 3.) She repeated many of her arguments from her PCR petitions, arguing the post-conviction court had abused its discretion in denying relief. (Compare Doc. 13-1 at 73-79, 159-62 with Doc. 13-2 at 3-10.) The appellate court granted review and denied relief. State v. Lewis (Lewis III), No. 2 CA-CR 2019-0287-PR, 2020 WL 3442638, ¶ 12 (Ariz. App. June 23, 2020). It explained that the post-conviction court had "correctly resolved [Petitioner's claims] on their merits" and adopted its analysis. Id. ¶ 9. The appellate court also noted Petitioner had failed to explain why she had not raised these issues in a timely manner, as Arizona Rule of Criminal Procedure 32.2(b) requires. Id. ¶ 11.
As pertinent here, Rule 32.2(b) requires "However, when a defendant raises a claim that falls under Rule 32.l(b) through (h) in a successive or untimely post-conviction notice, the defendant must explain the reasons for not raising the claim in a previous notice or petition, or for not raising the claim in a timely manner."
Petitioner did not request review from the Arizona Supreme Court. (Doc. 13-3 at 9.) On November 18, 2020, the Clerk of the Court for the Arizona Court of Appeals issued the mandate. Id.
d. Current Habeas Proceeding
Petitioner certifies she placed the present habeas petition in the prison mailing system on March 29, 2021. (Doc. 1 at 13.) It was filed on the docket on May 26, 2021. (Doc. 1.) She raises three grounds for relief in her petition. Id. at 6-11. First, she contends she was denied due process because her trial counsel was ineffective in failing to exercise due diligence in discovering and testing hair evidence. Id. at 6-7. Second, Petitioner claims she was denied due process because her trial counsel was ineffective in failing to defend against the state's expert witness. Id. at 8. Finally, she asserts she was denied due process because her trial counsel was ineffective in failing to investigate evidence of blood and fingerprint evidence on Petitioner's vehicle. Id. at 9-10. On June 11, 2021, the District Court screened the petition and ordered a response. (Doc. 5.)
II. TIMELINESS
Whether a petition is time-barred by the statute of limitations is a threshold issue that must be resolved before considering other procedural issues or the merits of the individual's claim. See White v. Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2002). The Anti-Terrorism and Effective Death Penalty Act's (AEDPA) one-year statute of limitations applies here. See 28 U.S.C. § 2244(d)(1); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). As potentially applicable here, the limitations period begins to run on the date when "the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review" or "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence," whichever is later. § 2244(d)(1)(A, D).
"The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." § 2244(d)(2). An PCR application is properly filed if its "delivery and acceptance are in compliance with the [state's] applicable laws and rules governing filings." Bonner v. Carey, 425 F.3d 1145, 1148 (9th Cir. 2005), amended, 439 F.3d 993 (9th Cir. 2006) (quoting Artuz v. Bennett, 531 U.S. 4, 8 (2000)). Put another way, applications must comply with provisions setting forth a condition to filing, as opposed to a condition to obtain relief. Artuz, 531 U.S. at 11. Not every state procedural bar prevents an application from being properly filed for statutory tolling. Id. at 10-11. State courts may consider the merits of an application without indicating a conclusion on the application's timeliness. Carey v. Saffold, 536 U.S. 214, 225-26 (2002).
In Arizona, an application for PCR commences when a notice of post-conviction relief is filed. Isley v. Ariz. Dep't of Corr., 383 F.3d 1054, 1056 (9th Cir. 2004). "State review ends when the state courts have finally resolved an application for state postconviction relief." Lawrence v. Florida, 549 U.S. 327, 332 (2007). Thus, once the state's "highest court has issued its mandate or denied review, no other state avenues for relief remain open," then the application is final and statutory tolling ends. Id. If the petitioner appeals to the Arizona Supreme Court, then the application is no longer pending once the court denies relief. Isley, 383 F.3d at 1055.
Here, Petitioner's sentence became final on June 27, 2016. See Hemmerle v. Schriro, 495 F.3d 1069, 1073-74 (9th Cir. 2007) (direct appeal final when time to seek review of decision expires); see also Ariz. R. Crim. P. 1.3 (computation of time), 31.21(b)(2)(A) ("A party must file a petition for review no later than 30 days after the Court of Appeals enters its decision, unless a party files a timely motion for reconsideration in the Court of Appeals . . . ."). Because the claims all challenge trial counsel's reaction to evidence known during trial, the date the factual predicate of the claims could have been discovered through due diligent effort is before when the sentence became final. (See Doc. 1 at 6-10.)
Absent tolling, Petitioner's petition is untimely. Respondents argue Petitioner's Rule 32 petition was not properly filed because she filed it past the ordinary deadline and did not present a valid newly-discovered-evidence claim. (Doc. 13 at 6.) Respondents are conflating the conditions to obtain relief into the conditions to file. Respondents argue Petitioner's claim did not meet the requirements under Rule 32.1(e) of the Arizona Rules of Criminal Procedure and the case law. Id. These are requirements for merits-not timeliness.
However, the Arizona Court of Appeals noted that Petitioner's petition did not comply with Rule 32.2(b) because it did not explain why Petitioner failed to raise the claim in a timely manner. Lewis III, 2020 WL 3442638, ¶ 11. For further context here, Rule 32.2 is titled "Preclusion of Remedy." It also notes that "when a defendant raises a claim that falls under Rule 32.1(b) through (h) in a successive or untimely post-conviction notice, the defendant must explain the reasons for not raising the claim in a previous notice or petition, or for not raising the claim in a timely manner." Rule 32.2(b). Rule 32.4 is titled "Filing a Notice of Requesting Post-Conviction Relief." It explains when a claim is timely or not. Ariz. R. Crim. P. 32.4(b)(3). It explains that for claims, such as Petitioner's, that are brought under Rule 32.1(b-h), the defendant must file the notice for claim "within a reasonable time after discovering the basis of the claim."
Rule 32.2(b) presents an obstacle to relief-not filing. First, the title references preclusion, while Rule 32.4 considers filing a notice. Second, the timeliness requirements are also outlined in Rule 32.4(b)(3) without reference to Rule 32.2(b). Third, this claim could fall within the exception provided in Rule 32.4(b)(3). Fourth, the provisions of Rule 32.2 are similar to those in Artuz, which the Supreme Court stated did not render the application "[im]properly filed." See 531 U.S. at 11 (alteration in Artuz). Fifth, the state court could have found the petition to be untimely if it had stated Petitioner has not filed within a reasonable time after discovering the basis of the claim. See Ariz. R. Crim. P. 32.4(b)(3)(B); see Carey, 536 U.S. at 225-27 (remanding for consideration on if delay was unreasonable).
Thus, ninety-two days passed between when Petitioner's conviction and sentences became final and when she filed the notice of PCR. This leaves 273 days in the statute of limitations remaining. Respondents assert without citation that the state review ended the day the Arizona Court of Appeals issued its ruling. (Doc. 13 at 6.) When a petitioner appeals to the Arizona Supreme Court, the state post-conviction review ends when the Arizona Supreme Court determines the matter. Hemmerle, 495 F.3d at 1077. However, when the Arizona Court of Appeals grants review and the petitioner does not file a motion for reconsideration or a petition for review, then the decision is final when the Arizona Court of Appeals issues its mandate. See Celaya v. Stewart, 691 F.Supp.2d 1046, 1054-55 (D. Ariz. 2010), aff'd 497 Fed.Appx. 744 (9th Cir. 2012); see also Hawkins v. Shinn, No. No. CV-21-01299-PHX-DLR-DMF, 2022 WL 3636749, at *8-9 (D. Ariz. July 5, 2022), R. + R. adopted, No. CV-21-01299-PHX-DLR, 2022 WL 3598248 (D. Ariz. Aug. 23, 2022). Thus, here the clock was tolled until November 18, 2020. (Doc. 13-3 at 9.) One hundred and eighty-eight days passed after the mandate was issued and before Petitioner filed her present petition. (Doc. 1). Thus, only 280 day passed in total.
Thus, the Court recommend finding this petition is timely.
III. EXHAUSTION/PROCEDURAL DEFAULT
Respondents urge that all of Petitioner's claims are technically exhausted but procedurally defaulted without excuse. (Doc. 13 at 11.) As set forth below, this Court agrees.
Legal Principles
A district court may consider a petitioner's application for a writ of habeas corpus only if they have "exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement prevents federal courts from unnecessarily adjudicating an issue and affords states the opportunity to correct a constitutional violation. Rose v. Lundy, 455 U.S. 509, 518 (1982).
To exhaust a claim, the petitioner must "fairly present" it in each appropriate state court, alerting the courts to its federal nature. Baldwin v. Reese, 541 U.S. 27, 29 (2004). Simply presenting the claim to the state's highest court on discretionary review is insufficient. Casey v. Moore, 386 F.3d 896, 918 (9th Cir. 2004). In Arizona, a claim not involving a life sentence or death penalty is exhausted if it is presented to the Arizona Court of Appeals; it need not be appealed to the Arizona Supreme Court. Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999).
For a claim to be fairly presented, the petitioner must have clearly stated its federal basis and nature, along with relevant facts, and the claim must be the "substantial equivalent" to the one presented to the state. Picard v. Connor, 404 U.S. 270, 278 (1971); Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011); Castillo v. McFadden, 399 F.3d 993, 998-99 (9th Cir. 2005). It is insufficient to merely present a state law claim that is "largely coextensive" with the federal claim. Fields v. Washington, 401 F.3d 1018, 1022-23 (9th Cir. 2005). If a state law claim is identical with the federal claim, then raising only the state law claim may be sufficient to exhaust the federal clam. Sanders v. Ryder, 342 F.3d 991, 1000 (9th Cir. 2003). The state must have an opportunity to examine a claim in which the evidence creates a significantly different legal or evidentiary posture. Dickens v. Ryan, 740 F.3d 1302, 1318 (9th Cir. 2014).
A petitioner who fails to follow a state's procedural requirements for presenting a claim deprives the state court of an opportunity to address the claim, in much the same manner as a petitioner who fails to exhaust his state remedies. Thus, to prevent a petitioner from subverting the exhaustion requirement by failing to follow state procedures, a claim not presented to the state courts in a procedurally correct manner is deemed procedurally defaulted and is generally barred from habeas relief. See Coleman v. Thompson, 501 U.S. 722, 731-32 (1991).
Claims may be procedurally barred from federal habeas review based upon either an express or implied bar. See Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). If a state court expressly applied a procedural bar when a petitioner attempted to raise a claim in state court, and the procedural bar is both independent and adequate, review of the merits of the claim by a federal habeas court is generally barred. See Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) ("When a state-law default prevents the state court from reaching the merits of a federal claim, that claim can ordinarily not be reviewed in federal court."). An implied procedural bar may be applied to unexhausted claims where state procedural rules make a return to state court futile. Coleman, 501 U.S. at 735 n.1 (claims are barred from habeas review when not first raised before state courts and those courts "would now find the claims procedurally barred"); Franklin v. Johnson, 290 F.3d 1223, 1230-31 (9th Cir. 2002) ("[T]he procedural default rule barring consideration of a federal claim 'applies . . . if it is clear that the state court would hold the claim procedurally barred.'" (quoting Harris v. Reed, 489 U.S. 255, 263 n.9 (1989))). The implied procedural bar is often referred to as "technical" exhaustion because even though the claim was not actually exhausted, the petitioner no longer has an available state remedy. Coleman, 501 U.S. at 732.
In Arizona, claims not previously presented to state courts on either direct appeal or collateral review are generally barred from federal review because an attempt to present them to the state court would be futile unless they fit in a narrow category of claims for which a successive or untimely petition is permitted. See Ariz. R. Crim. P. 32.2(a) (precluding claims not raised on appeal or in prior petitions for post-conviction relief, except for narrow exceptions), 32.4(b)(3) (time bar). Because Arizona's preclusion rules are both independent and adequate, their application to a claim by an Arizona court or their operation precluding a return to state courts to exhaust a claim will procedurally bar subsequent review of the merits of that claim by a federal habeas court. See Stewart v. Smith, 536 U.S. 856, 860 (2002) (determinations made under Arizona's procedural default rule are independent of federal law); see also Carriger v. Lewis, 971 F.2d 329, 333 (9th Cir. 1992) (rejecting assertion that Arizona courts' application of procedural default rules were "unpredictable and irregular"); State v. Mata, 916 P.2d 1035, 1050-52 (Ariz. 1996) (waiver and preclusion rules are strictly applied in post-conviction proceedings). Arizona's time bar under Rules 32.4 is an additional bar that would make a return to state court fruitless. See, e.g., Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002) (holding that if Arizona habeas petitioner "has any unexhausted claims" they are "procedurally defaulted . . . because he is now time-barred under Arizona law from going back to state court"); Moreno v. Gonzalez, 116 F.3d 409, 410 (9th Cir. 1997) (observing timeliness under Rule 32.4 as grounds for dismissal of PCR petition, distinct from preclusion under Rule 32.2(a)).
Procedural Status of Petitioner's Claims
Here, Petitioner states three grounds for relief. (Doc. 1 at 6-10.) Each ground asserts that Petitioner was denied due process because her trial counsel was ineffective. Id.
On direct appeal, Petitioner argued she was entitled to credit for presentence incarceration credits and claims. Lewis II, 2016 WL 3030138, ¶ 1. She did not make any constitutional claims related to the habeas before this Court. In her petition for post-conviction relief, Petitioner claimed relief under 32.1(e) and presumably 32.1(h)-newly discovered evidence and actual innocence, respectively. Lewis III, 2020 WL 3442638, ¶¶ 3, 5. In her Petition for Review to the Arizona Court of Appeals, Petitioner only argued that she presented a colorable claim of newly discovered evidence. (Doc. 13-2 at 3-10.) Petitioner did not present a federal constitutional claim to the state court in her state petition. (Doc. 13-1 at 73-78, 158-62, Doc. 13-2 at 3-10.) As such, Petitioner did not exhaust her claims in the state court.
Further, Petitioner cannot return to the state court to exhaust her claims because Arizona's procedural rules would bar her. Her notice requesting post-conviction relief would be untimely because constitutional claims must be brought within 30 days after the mandate in the direct appeal. See Ariz. R. Crim. P. 32.4(b)(3)(A). It appears this failure to timely challenge this issue would be considered Petitioner's fault, such she would not have relief under Rule 32.1(f) (providing ground for relief if "the failure to timely file a notice of appeal was not the defendant's fault."). Hence, Petitioner's claims are technically exhausted but procedurally defaulted.
The Procedural Default Cannot be Excused
Federal habeas review of a procedurally defaulted claim is barred unless the default is excused. A procedural default may be excused if a habeas petitioner establishes either (1) "cause" and "prejudice," or (2) that a fundamental miscarriage of justice has occurred. Sawyer v. Whitley, 505 U.S. 333, 338-39 (1992). "Cause" that is sufficient to excuse a procedural default is "some objective factor external to the defense" which precludes a petitioner's ability to pursue the claim in state court. Murray v. Carrier, 477 U.S. 478, 488 (1986). "Prejudice" in the habeas context means actual, objective harm resulting from the alleged error. United States v. Frady, 456 U.S. 152, 170 (1982) (habeas petitioners "shoulder the burden of showing, not merely that the errors . . . created a possibility of prejudice, but that they worked to his actual and substantial disadvantage" and infected state proceedings with errors of constitutional dimension). A fundamental miscarriage of justice may occur where a constitutional violation has probably resulted in the conviction of an innocent petitioner. Murray, 477 U.S. at 496 (merits of defaulted claim could be reached "in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent"). "[A] petitioner does not meet the threshold requirement [of establishing actual innocence] unless he persuades 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." Schlup v. Delo, 513 U.S. 298, 329 (1995). The actual innocence gateway requires that a petitioner present new evidence that is not merely cumulative or speculative. Larsen v. Soto, 742 F.3d 1083, 1096 (9th Cir. 2013).
Petitioner fails to recognize or argue there was "cause" and "prejudice" that precluded her ability to pursue the claim in state court. (Doc. 1 at 6, 8, 9.) Instead, Petitioner states she was advised to file a federal habeas petition. Id. Further, Petitioner does not put forth an actual innocence claim. Id. at 13. While she states she did not kill Palmer. (Doc. 1-1 at 1), an actual innocence claim requires that "in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." McQuiggin v. Perkins, 569 U.S. 383, 386, 399 (2013) (quoting Schlup, 513 U.S. at 327, 329). Even if the Court were to read in an actual innocence claim, Petitioner has not satisfied that high bar, as recognized in the attachment to her petition, which was her supplemental petition for PCR. (Doc. 1-1 at 2-4; Doc. 13-1 at 159-70.) Therefore, the procedural default should not be excused.
IV. RECOMMENDATION
Petitioner's claims are technically exhausted but procedurally defaulted, and she has not made any argument to the contrary. Accordingly, it is recommended that the district court, after its independent review, deny and dismiss the Petition.
Pursuant to 28 U.S.C. § 636(b)(1) and 72(b)(2), Fed. R. Civ. P., any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the district court. If objections are not timely filed, they may be deemed waived. The Clerk of Court is directed to terminate the referral of this matter. Filed objections should bear the following case number: 4:21-cv-00225-TUC-JAS.