Opinion
CV-22-01072-PHX-MTL (MTM)
06-30-2023
Steve Nolte, Petitioner, v. David Shinn, et al., Respondents.
TO THE HONORABLE MICHAEL T. LIBURDI, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
Honorable Michael T. Morrissey United States Magistrate Judge
Petitioner Steve Nolte has filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Doc. 1.
I. SUMMARY OF CONCLUSION
Petitioner was convicted of one count of fraudulent schemes and artifices and five counts of theft. He was sentenced to concurrent terms of imprisonment, the longest of which was 9.25 years. On June 15, 2022, Petitioner filed a Petition for a Writ of Habeas Corpus. The Petition is untimely. In addition, Petitioner is not entitled to relief because his claims are procedurally defaulted, not cognizable and without merit. The Court will recommend the Petition be denied and dismissed with prejudice.
II. BACKGROUND
A. Conviction and Sentencing
In September 1997, Petitioner was indicted and charged with one count of fraudulent schemes and artifices, five counts of theft, and five counts of forgery, and issued a warrant for his arrest. Doc. 8-1 at 5-15. Petitioner was not arrested for sixteen years until he was apprehended by federal authorities in Las Vegas on September 3, 2013. Doc. 8-1 at 21.
In May 2016, Petitioner was tried by jury in Maricopa County. Doc. 8-1 at 101132; Doc. 8-2 at 2-7. The Arizona Court of Appeals summarized the underlying facts as follows:
The Court presumes the state court's recounting of the facts is correct. 28 U.S.C. § 2254(e)(1).
Nolte, through his company Etlon Communications, worked as a consultant for Fulton Homes in Tempe doing information technology work. In early May 1997, Fulton Homes discovered several company checks were missing. By May 16, 2017, Fulton Homes checks, purportedly signed by Fulton Homes' president, made payable to Etlon and totaling $571,649.17, had been deposited into an Etlon bank account. Fulton Homes had not signed or authorized any of those checks. Three wire transfers totaling $543,500 were made from Etlon's bank account to an account for Nolte's benefit in Costa Rica. Fulton Homes terminated Nolte's consultancy.
Nolte assumed the identity of George France, an individual who was born in February 1966 and died four days later. On May 13, 1997, Nolte obtained a copy of France's birth certificate and applied for, and obtained, a driver's license in the name of “George France.” Using a passport application showing planned travel to Costa Rica, Nolte also applied for, and obtained, a passport in the name of “George France.” After Nolte traveled to Costa Rica, he applied for, and obtained, a replacement passport in the name of “George France.” The pictures on the driver's license and passports were identified as Nolte. Other evidence, including DNA and fingerprint analysis, show that defendant is Nolte.Doc. 8-2 at 68-69. The jury convicted Petitioner of fraudulent schemes and artifices and theft. Id. at 4-7, 23-24. He was found not guilty of forgery. Id. On August 26, 2016, Petitioner was sentenced to concurrent prison terms, the longest of which was 9.25 years. Id. at 24-25.
B. Direct Appeal
On August 26, 2016, Petitioner filed a notice of appeal. Doc. 8-2 at 29. On November 2, 2017, the Arizona Court of Appeals affirmed his convictions and sentences. Doc. 8-2 at 68-72. Petitioner did not file a petition for review to the Arizona Supreme Court. The Arizona Court of Appeals issued its mandate on December 19, 2017. Id. at 74.
C. Post-Conviction Relief
On November 21, 2017, Petitioner mailed a notice of post-conviction relief (“PCR”). Doc. 8-2 at 76-78. Petitioner filed a PCR petition on May 20, 2019. Id. at 91107. On November 18, 2019, the PCR court dismissed the PCR petition for failure to present a colorable claim for relief. Id. at 132. On December 17, 2019, Petitioner filed a petition for review with the Arizona Court of Appeals. Id. at 137-54. On January 7, 2021, the Arizona Court of Appeals denied review. Id. at 156-58. On January 27, 2021, Petitioner filed a motion for reconsideration. Id. at 160-71. The Arizona Court of Appeals denied the motion for reconsideration. Id. at 173. Petitioner did not file a petition for review with the Arizona Supreme Court. The Arizona Court of Appeals issued its mandate on June 15, 2021. Id. at 176.
III. PETITION FOR A WRIT OF HABEAS CORPUS
On June 15, 2022, Petitioner filed a Petition for a Writ of Habeas Corpus raising four grounds for relief. Doc. 1. As stated in the Court's Order, Petitioner argues the following:
(1) the 18-year delay between his indictment and trial violated his Sixth Amendment right to a speedy trial;
(2) his Fourteenth Amendment right to due process was violated because there was insufficient evidence and he is actually innocent;
(3) he was denied a meaningful opportunity to present a complete defense, in violation of the Sixth Amendment and the Due Process Clause; and
(4) he was denied his rights to due process, equal protection, and access to the courts because the prison library is “deficient of legal materials” and, as a result, the Arizona Court of Appeals declined to review the denial of his petition for post-conviction relief because he “did not follow case law . . . that modifies [Arizona Rule of Criminal Procedure] 32.16(c)(2)(D).”Doc. 5 at 1-2.
Federal habeas claims are governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which permits this Court to review petitions for a writ of habeas corpus from individuals held in custody under a state-court judgment on the ground the person is in custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a). The AEDPA which provides that a habeas petition on behalf of a person in state custody shall not be granted with respect to any claim that was “adjudicated on the merits” unless the state court's decision was (1) contrary to, or an unreasonable application of, clearly established federal law as determined by the United States Supreme Court, or (2) based on an unreasonable determination of the facts in light of the evidence presented in state court. 28 U.S.C. § 2254(d); see Williams v. Taylor, 529 U.S. 362, 412-13 (2000). The AEDPA “reflects the view that habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979)).
IV. TIMELINESS
A. Statute of Limitations
The AEDPA imposes a one-year statute of limitations for state prisoners to file habeas petitions. 28 U.S.C. § 2244(d); Bryant v. Ariz. Atty. Gen., 499 F.3d 1056, 1059 (9th Cir. 2007). The timeliness of a habeas petition is a threshold issue for the Court to resolve. White v. Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2002). Under AEDPA, the one-year limitation runs from “the latest of . . . the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A).
B. Statutory Tolling
The AEDPA one-year limitations period is statutorily tolled for the period “during which a properly filed application for State post-conviction or other collateral review . . . is pending.” 28 U.S.C. § 2244(d)(2). An untimely post-conviction petition is not “properly filed” and does not toll the statute of limitations. Pace v. DiGuglielmo, 544 U.S. 408, 410, 414 (2005) (“When a postconviction petition is untimely under state law, that is the end of the matter for purposes of § 2244(d)(2).”) (citations and internal quotation marks omitted); Allen v. Siebert, 552 U.S. 3, 6 (2007) (finding that inmate's untimely state post-conviction petition was not “properly filed” under the AEDPA's tolling provision).
C. The Petition is Untimely Without Excuse
Petitioner was sentenced on August 16, 2016, and timely filed a notice of appeal the same day. Doc. 8-2 at 24-29. The Arizona Court of Appeals affirmed his conviction on November 2, 2017. Id. at 68. Petitioner had 35 days to file a petition for review to the Arizona Supreme Court, or until December 7, 2017. See Ariz. R. Crim. P. 31.21(b)(2)(A) (stating a party must file a petition for review no later than 30 days after the Court of Appeals enters its decision); Ariz. R. Crim. P. 1.3(a) (stating that where a party has the right or is required to take some action within a prescribed period after service of a notice or other paper and such service is allowed and made by mail, 5 days shall be added to the prescribed period). Petitioner did not file a petition for review, and therefore Petitioner's conviction would have become final on December 7, 2017, absent statutory tolling.
Petitioner is entitled to statutory tolling because he timely filed a PCR notice on November 21, 2017, before his conviction became final after direct review. Doc. 8-2 at 76-78. The PCR notice was timely filed because Petitioner filed it before the Arizona Court of Appeals issued its mandate in the direct appeal on December 19, 2017. Id. at 74; see Ariz. R. Crim. P. 32.4(b)(3)(A) (“A defendant must file the [PCR] notice for a claim under Rule 32.1(a) within 90 days after the oral pronouncement of sentence or within 30 days after the issuance of the mandate in the direct appeal, whichever is later.”); see also Pace, 544 U.S. at 410, 414 (stating a properly-filed PCR petition must be timely under state law). Petitioner is therefore entitled to statutory tolling for the duration that his PCR proceeding was pending. See 28 U.S.C. § 2244(d)(2).
Petitioner filed a PCR petition in May 2019. Doc. 8-2 at 107. The PCR Court dismissed the PCR proceeding for failure to state a colorable claim. Id. at 131-32. Petitioner timely filed a petition for review with the Arizona Court of Appeals. Id. at 13754. The Arizona Court of Appeals denied review, finding that “although Nolte has filed what purports to be a petition for review of the trial court's ruling, it is essentially a verbatim copy of his petition for post-conviction relief . . . [and] Nolte does not state why he believes the court improperly dismissed his petition, much less explain how it abused its discretion by doing so.” Id. at 157-58. The Arizona Court of Appeals cited Arizona Rule of Criminal Procedure 32.16(c)(2)(D), which provides that a petition for review must contain “reasons why the appellate court should grant the petition.”
Respondents contend that because the Arizona Court of Appeals applied a procedural bar to relief, the petition for review was not “properly filed” to warrant statutory tolling. Doc. 8 at 10. Respondents thus assert Petitioner's conviction became final on December 19, 2019, the conclusion of the period Petitioner had to properly file a petition for review from the PCR Court's decision dated November 19, 2019. Id. The Court disagrees. Indeed, “the question 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, 8-11 (2000) (explaining that a state procedural bar against claims previously determined on the merits is a “condition to obtaining relief,” as opposed to a “condition to filing” and thus a petition denied on that basis is “properly filed” under AEDPA).
Even considering Petitioner's petition for review as properly filed, however, the habeas petition is nevertheless untimely. The Arizona Court of Appeals denied the petition for review on January 7, 2021. Doc. 8-2 at 156. Petitioner then timely filed a reconsideration motion on January 27, 2021.2 Doc. 8-2 at 163, 169, 173. The Arizona Court of Appeals denied the motion on February 8, 2021. Doc. 8-2 at 173. Petitioner did not file a petition for review to the Arizona Supreme Court. The time for filing a petition for review to the Arizona Supreme Court began on February 9, 2021, and expired twenty days later, on March 1, 2021. See Ariz. R. Crim. P. 31.21(b)(2)(A) (stating a petition for review of the denial of a motion for reconsideration is due within fifteen days); Ariz. R. Crim. P. 1.3(a) (adding five days to the time calculation to act on a filing served by mail); Ariz. R. Crim. P. 1.3(a)(1) (stating the day starting the time period is excluded from time calculation). The Arizona Court of Appeals issued its mandate on June 15, 2021. Doc. 82 at 176. Petitioner filed the instant habeas petition one year later, on June 15, 2022. Doc. 1.
Respondents assert Petitioner's reconsideration motion was untimely filed because Respondents fail to account for the rule adding five days to the prescribed period when service is made by mail. Petitioner had twenty days, until January 27, 2021, with which to file the reconsideration motion. See Ariz. R. Crim. P. 31.20 (stating a reconsideration motion must be filed within fifteen days of entry of the decision); Ariz. R. Crim. P. 1.3(a) (stating that where a party has the right or is required to take some action within a prescribed period after service of a notice or other paper and such service is allowed and made by mail, 5 days shall be added to the prescribed period.); Ariz. R. Crim. P. 1.3(a)(1) (stating the day starting the time period is excluded from time calculation); see also Houston v. Lack, 487 U.S. 266, 276 (1988) (holding for pro se prisoners, a filing is deemed filed when it is delivered to prison authorities for mailing).
As Respondents acknowledge, there is authority in this jurisdiction suggesting the relevant date marking the end of the pendency of a PCR proceeding and the start of the AEDPA statute of limitations is the date of the Arizona Court of Appeals' mandate. See Celaya v. Stewart, 691 F.Supp.2d 1046, 1053-54 (D. Ariz. 2010), aff'd 497 Fed.Appx. 744 (9th Cir. 2012); see also Wells v. Ryan, 2015 WL 9918159, at *8-9 (D. Ariz. Aug. 13, 2015) (“when the Arizona Court of Appeals grants review of the trial court's decision on a petition for post-conviction relief but denies relief, and the petitioner does not seek further review, the post-conviction proceeding is pending until the date the appellate court issues its mandate.”). However, the Ninth Circuit clarified in Melville v. Shinn, 68 F.4th 1154, 1161 (9th Cir. 2023), the relevant date is when “no other state avenues for relief remain open.” Melville v. Shinn, 68 F.4th 1154, 1161 (9th Cir. 2023) (quoting Lawrence v. Florida, 549 U.S. 327, 332 (2007)). The Ninth Circuit noted the Arizona Court of Appeals issued its mandate in Melville's PCR proceeding six days after the last state avenue for relief expired on June 1, 2017, “but the mandate did not extend the time for Melville to file a motion for reconsideration.” Id. The court thus concluded the PCR proceeding “ceased to be pending on June 1, 2017.” Id.
Applying the Ninth Circuit's analysis in Melville, the Petition is untimely. 68 F.4th at 1161. The AEDPA limitations period began upon the conclusion of Petitioner's time to seek further review by filing a petition for review to the Arizona Supreme Court, on March 1, 2021. The Arizona Court of Appeals' mandate over three months later did not extend the time for seeking review. See Melville, 68 F.4th at 1161. The AEDPA limitations expired one year later, on March 1, 2022. See 28 U.S.C. §2255(f)(1). Therefore, the Petition filed June 15, 2022, is untimely by three and a half months.
D. Equitable Tolling
Courts have equitably tolled AEDPA's statute of limitations in certain circumstances. Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006). Equitable tolling applies if a petitioner shows: “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Ford v. Gonzalez, 683 F.3d 1230, 1237 (9th Cir. 2012) (internal quotations and citations omitted). “[Extraordinary circumstances beyond a prisoner's control [must] make it impossible to file a petition on time and the extraordinary circumstances [must be] the cause of the prisoner's untimeliness.” Id. (citation omitted). Petitioner bears the burden of establishing equitable tolling's requirements. Pace, 544 U.S. at 418.
Petitioner does not argue he is entitled to equitable tolling. He has not shown that an extraordinary circumstance existed which prevented him from filing the habeas petition earlier. Petitioner is therefore not entitled to equitable tolling. See Ford, 683 F.3d at 1237.
Petitioner has also not stated a credible claim of actual innocence. “Actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar . . . or expiration of the AEPA statute of limitations.” McQuiggin v. Perkins, 569 U.S. 383, 383-84 (2012). “Actual innocence means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 615 (1998). “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 v. Delo, 513 U.S. 298, 324 (1995). Liberally construing the Petition, Petitioner argues he is actually innocent. In Ground Two, Petitioner alleges he is innocent because his convictions for theft and fraudulent schemes and artifices cannot stand after he was acquitted of forgery, which he contends is an element of theft and fraud. Doc. 1 at 7. He also argues the state has not proved he “used an alternative identity to defraud alleged victim,” forged the checks, or deposited the checks. Id. Petitioner has not supported his innocence claim with new, credible evidence. See Schlup, 513 U.S. at 324. Petitioner also only alleges legal insufficiency, rather than factual innocence, which cannot support a claim of actual innocence to warrant consideration of an untimely petition. See Bousley, 523 U.S. at 615. The Petition is therefore untimely without excuse.
V. ANALYSIS
A. Grounds One and Three are Procedurally Defaulted
Respondents argue Ground One and Ground Three of the Petition are procedurally defaulted. To seek federal habeas review, a state prisoner must first exhaust the available state remedies. 28 U.S.C. § 2254(b)(1)(A). “To exhaust one's state court remedies in Arizona, a petitioner must first raise the claim in a direct appeal or collaterally attack his conviction in a petition for post-conviction relief.” Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). In non-capital cases, claims of Arizona prisoners “are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.” Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); see also Crowell v. Knowles, 483 F.Supp.2d 925, 933 (D. Ariz. 2007). Exhaustion requires the petitioner to “fairly present” his claim to the state court by “clearly stat[ing] the federal basis and federal nature of the claim, along with relevant facts.” Cooper v. Neven, 641 F.3d 322, 326 (9th Cir. 2011) (citations omitted). The petitioner must also provide the state courts with one full opportunity to rule on his federal habeas claims before presenting those claims to the federal courts. See O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999) (requiring petitioners to give state courts “a fair opportunity to act on their claims,” that is, “one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process”).
If the petitioner failed to exhaust his claim and is now procedurally barred from returning to state court to present his claim, then his claim is procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); see also Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002) (“If [petitioner] has any unexhausted claims, he has procedurally defaulted them, because he is now time-barred under Arizona law from going back to state court.”). The procedural default doctrine is rooted in “the adequate and independent state ground doctrine.” Franklin v. Johnson, 290 F.3d 1223, 1230 (9th Cir. 2002) (citations and internal quotation marks omitted). Procedurally defaulted claims are not reviewable absent a showing of cause and resulting prejudice or a fundamental miscarriage of justice. Moormann v. Schriro, 426 F.3d 1044, 1058 (9th Cir. 2005) (citing Coleman, 501 U.S. at 750); see also Schlup, 513 U.S. at 327 (holding a petitioner must claim actual innocence to argue a fundamental miscarriage of justice).
In addition, a claim is technically exhausted but procedurally defaulted where the petitioner raised the claim in state court, but the state court expressly applied a procedural bar resting “on an ‘independent and adequate' state law ground.” Insyxiengmay v. Morgan, 403 F.3d 657, 665 (9th Cir. 2005) (quoting Coleman, 501 U.S. at 729). The last state court rendering a judgment in the case must have clearly and expressly relied on a procedural bar. Thomas v. Goldsmith, 979 F.2d 746, 749 (9th Cir. 1992) (citing Harris v. Reed, 489 U.S. 255, 263 (1989)).
Although Petitioner raised the claims in Grounds One and Three in a petition for post-conviction relief, the Arizona Court of Appeals applied a procedural bar and declined to decide the claims on the merits. The court found Petitioner failed to state why he believed the PCR court improperly dismissed his petition or explain how the PCR court abused its discretion as required by Arizona Rule of Civil Procedure 32.16. Doc. 82 at 158. The court thus applied an express procedural bar to Petitioner's claims. See Thomas, 979 F.2d at 749. At this point, Petitioner is barred from returning to state court to raise these claims. See Ariz. R. Crim. P. 32.2(a)(3) (precluding post-conviction relief 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”); Stewart v. Smith, 202 Ariz. 446, 450 (2002) (stating unless the right involved requires a knowing and voluntary waiver, like the right to counsel or jury trial, a defendant waives a claim by not raising it in a previous post-conviction proceeding); see also Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014) (“Arizona's waiver rules are independent and adequate bases for denying relief.”). Because the appellate court expressly applied a procedural bar to decline to review Petitioner's claims on the merits, and Petitioner is time-barred from raising the claims now, Grounds One and Three are procedurally defaulted unless Petitioner can show cause and resulting prejudice or a fundamental miscarriage of justice. See Thomas, 979 F.2d at 749; Moormann, 426 F.3d at 1058.
Petitioner has not shown cause and prejudice to excuse the procedural default in the circumstances presented here. To demonstrate cause, the petitioner must establish some external and objective factor impeded efforts to comply with the state's procedural rule. Coleman, 501 U.S. at 753. “For example, a showing that the factual or legal basis for a claim was not reasonably available to counsel . . . or that some interference by officials . . . made compliance impracticable, would constitute cause under this standard.” Id. (citations and internal quotations omitted). “[T]o establish prejudice, [a petitioner] must show not merely a substantial federal claim, such that the errors . . . at trial created a possibility of prejudice, but rather that the constitutional violation worked to his actual and substantial disadvantage.” Shinn v. Ramirez, 142 S.Ct. 1718, 1732 (2022) (citing Murray v. Carrier, 477 U.S. 478, 494 (1986)) (internal quotations omitted).
Petitioner argues in Ground Four that the prison library was “deficient of legal materials” and, as a result, the Arizona Court of Appeals declined to review the denial of his petition for post-conviction relief because he “did not follow case law . . . that modifies [Arizona Rule of Criminal Procedure] 32.16(c)(2)(D).” Doc. 1 at 10. Liberally construed, Petitioner argues that cause and resulting prejudice exist to excuse the procedural default of his claims. However, Petitioner has not met his burden to show that a lack of access to the prison library was the cause of his procedural default. He has not alleged he was personally denied access to the library, and he has not explained what additional materials were needed that were denied to him that would have helped him avoid the procedural bar applied in the state appellate court. See Thomas v. Lewis, 945 F.2d 1119, 1123 (9th Cir. 1991) (affirming the District Court's determination that “Thomas could not rely on poor access to the prison law library as cause because he failed to demonstrate that he, himself, had been denied access to the library . . . [and] Thomas' pro se pleadings reflected adequate access to and use of legal material”); see also James v. Mauldin, 2010 WL 366722, at *15 (D. Ariz. Jan. 27, 2010) (“Petitioner was aware of the claim and raised it in his PCR Petition, thus Petitioner's assertions of lack of access to legal materials is insufficient to establish cause to excuse his failure to present the issue to the appellate court when seeking review during the post-conviction relief proceeding.”). Accordingly, Petitioner has not shown cause to excuse the procedural default.
Petitioner also argues his counsel for his direct appeal was ineffective for not raising the claims in Ground One and Ground Three on direct appeal. Doc. 1 at 6. Petitioner does not support this assertion with facts or argument, and he has thus not met his burden to show cause or prejudice based on ineffective assistance of counsel to excuse the procedural default. Moreover, in general, “[a]ttorney ignorance or inadvertence” cannot excuse procedural default. Coleman, 501 U.S. at 753 (“[T]he attorney is the petitioner's agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must bear the risk of attorney error.”).
In addition, Petitioner has not argued a fundamental miscarriage of justice would result from a denial of review of his procedurally defaulted claims. As explained above, Petitioner has not raised a credible claim of actual innocence. He has thus not shown a fundamental miscarriage of justice to warrant review of his procedurally defaulted claims. See Schlup, 513 U.S. at 327. Because Petitioner has not shown cause and prejudice, or a fundamental miscarriage of justice, Grounds One and Three are procedurally defaulted without excuse.
B. Ground Four is Not Cognizable
In Ground Four, Petitioner alleges he “was denied Due Process, Equal Protection and Access to the Court” because “the prison library is deficient of legal materials . . . [and] Arizona Court of Appeals inappropriately denied to grant review of Defendant's Petitioner for Post Conviction relief because Defendant did not follow case law.” Doc. 1 at 10.
Ground Four does not present a claim that is cognizable on federal habeas review. “In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991); Engle v. Isaac, 456 U.S. 107, 119 (1982) (“A state prisoner is entitled to relief under 28 U.S.C. § 2254 only if he is held ‘in custody in violation of the Constitution or laws or treaties of the United States.'”). It is well-settled that claims relating to the conditions of a prisoner's confinement are not cognizable on federal habeas review. See, e.g., Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 2003) (“[H]abeas jurisdiction is proper where a challenge to prison conditions would, if successful, necessarily accelerate the prisoner's release . . . [H]abeas jurisdiction is absent . . . where a successful challenge to a prison condition will not necessarily shorten the prisoner's sentence.”). Because Petitioner's claim relates only to prison conditions, Ground Four is not cognizable. See id. Moreover, Petitioner does not explain how he was deprived of a right under the Constitution or laws of the United States. A simple reference to due process or equal protection does not transform a claim into one that is cognizable on federal habeas review. See Langfordv. Day, 110 F.3d 1380, 1389 (9th Cir. 1996).
C. Ground Two Is Procedurally Default and Does Not Entitle Petitioner to Relief
In Ground Two, Petitioner argues “[insufficient evidence denied Defendant of Due Process Clause of the Fourteenth Amendment.” Doc. 1 at 7. He contends:
All accomplice theory was dismissed by prosecution before trial. Defendant was acquitted of forging five checks. Without the element of forgery there can be no theft or fraud . . . the State's case is made of innuendo, that Defendant used an alternate identity . . . No proof exists to show: Defendant used an alternative identity to defraud alleged victim, checks were forged, nor Defendant deposited them because the police did not bother to go to the bank and check the videos. Even worse the evidence that defendant was working twelve thousand miles away across the Pacific Ocean in 1997 was ignored. Defendant is actually innocent.Doc. 1 at 7. In response to Petitioner's argument on direct appeal, the Arizona Court of Appeals held as follows:
The trial evidence properly would allow a reasonable jury to conclude Nolte acted pursuant to a scheme or artifice to defraud and obtained a benefit by false or fraudulent pretenses, representations or material omissions. On various dates, unauthorized checks from Fulton Homes, totaling $571,649.17, were deposited into a bank account of Etlon, Nolte's company. Subsequently, $543,500 was wired from that account to Nolte to a Costa Rican bank. On this record, a reasonable jury could conclude Nolte acted pursuant to a scheme or artifice to defraud Fulton Homes and knowingly obtained a benefit.
. . . There is [also] sufficient evidence supporting the jury's conclusion that Nolte knowingly controlled Fulton Homes' property with the intent to deprive Fulton Homes of that property, even if the jury concluded the State did not prove Nolte himself forged the checks.Doc. 8-2 at 71.
Importantly, Petitioner did not present this claim as a federal claim on direct appeal. Petitioner cited only state law to support his argument (see doc. 8-2 at 32-51) and the Arizona Court of Appeals relied on Arizona law to decide Petitioner's claim. Id. at 71. Petitioner did not fairly present his claim because he did not “clearly state the federal basis and federal nature of th[is] claim” in state court. See Cooper v. Neven, 641 F.3d 327 (9th Cir. 2011) (citations omitted). His state law claim of insufficient evidence did not fairly present a federal claim on direct appeal. See Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), opinion amended and superseded, 247 F.3d 904 (9th Cir. 2001) (“the petitioner must make the federal basis of the claim explicit either by citing federal law or the decisions of federal courts, even if the federal basis is ‘self-evident.'”) (citations omitted); see also Casey v. Moore, 386 F.3d 896, 913 (9th Cir. 2004) (“Even where a petitioner argues that an error deprived him of a ‘fair trial' or the ‘right to present a defense,' unless the petitioner clearly alerts the court that he is alleging a specific federal constitutional violation, the petitioner has not fairly presented the claim.”). Because Petitioner would be time-barred from returning to state court to raise the federal claim now, Petitioner's claim in Ground One is procedurally defaulted. See Ariz. R. Crim. P. 32.2(a)(3); see also Hurles, 752 F.3d at 780 (“Arizona's waiver rules are independent and adequate bases for denying relief.”) Petitioner has not argued or shown that cause and prejudice or a fundamental miscarriage of justice would excuse the procedural default. See Coleman, 501 U.S. at 750.
Moreover, Petitioner has not shown he is entitled to federal habeas relief on his claim. To be granted habeas relief, Petitioner must show the state court's adjudication of his 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 determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). Ordinary errors or even “circumstances where the petitioner offers ‘a strong case for relief”” do not meet the unreasonableness standard. Mays v. Hines, 141 S.Ct. 1145, 1149 (2021) (citation omitted). A petitioner must demonstrate “a decision was so lacking in justification beyond any possibility for fairminded disagreement.” Id.
In deciding Petitioner's sufficiency of the evidence claim, the Arizona Court of Appeals summarized the evidence presented at trial, including that “[o]n various dates, unauthorized checks from Fulton Homes, totaling $571,649.17, were deposited into a bank account of Etlon, Nolte's company . . . [and] $543,500 was wired from that account to Nolte.” Doc. 8-2 at 71. Although Petitioner argues insufficient evidence supports his convictions, he has not argued or shown the Arizona Court of Appeals made an unreasonable factual determination. Petitioner is therefore not entitled to relief on Ground Two.
VI. CONCLUSION
The Petition is untimely without excuse. In addition, Grounds One and Three are procedurally defaulted. Ground Four does not present a cognizable claim. Ground One is procedurally defaulted and lacks merit. The record is sufficiently developed, and the Court finds an evidentiary hearing is unnecessary for resolving this matter. See Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 2011). Accordingly, IT IS RECOMMENDED that the Petition for a Writ of Habeas Corpus (doc. 1) be denied and dismissed with prejudice.
IT IS FURTHER RECOMMENDED that a certificate of appealability and leave to proceed in forma pauperis on appeal be denied. Petitioner has not demonstrated reasonable jurists could find the ruling debatable or jurists could conclude the issues presented are adequate to deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have 14 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. Thereafter, the parties have 14 days within which to file a response to the 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 determinations 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.