Opinion
CV-23-00632-PHX-DJH (DMF)
02-16-2024
Rudolph John Porter, Jr., Petitioner, v. Ryan Thornell, et al., Respondents.
TO THE HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
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. 9 at 4)
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-23-00632-PHX-DJH (DMF).
Petitioner Rudolph John Porter, Jr. (“Petitioner”), who is confined in the Arizona State Prison Complex in Florence, Arizona, filed a pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (“Petition”) on March 17, 2023. (Doc. 1) On June 30, 2023, the Court ordered Respondents to answer the Petition. (Doc. 9 at 3-4)
The Petition was docketed by the Clerk of Court on April 13, 2023. (Doc. 1) The Petition contains a declaration by Petitioner that he placed the Petition in the prison mailing system on March 17, 2023. (Id. at 11) This Report and Recommendation uses March 17, 2023, as the operative filing date of the Petition. Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (“A petition is considered to be filed on the date a prisoner hands the petition to prison officials for mailing.”); Melville v. Shinn, 68 F.4th 1154, 1159 (9th Cir. 2023) (affirming Also on December 11, 2019, the trial court held a change of plea hearing and advised that the prison mailbox rule “applies to pro se federal habeas petitions” on the date a petitioner signs, dates, and attests the petition was placed in the prison mailing system); see also Rule 3, Rules Governing Section 2254 Cases (petition is timely if deposited in prison mailing system on or before last day for filing, which may be shown by “declaration in compliance with 28 U.S.C. § 1746 or by a notarized statement”).
On September 6, 2023, Respondents filed their Limited Answer to the Petition. (Doc. 14) On September 26, 2023, Petitioner filed a reply. (Doc. 15)
For the reasons set forth below, it is recommended that these proceedings be dismissed with prejudice, that the Clerk of Court be directed to terminate this matter, and that a certificate of appealability be denied.
I. BACKGROUND
A. Charges, Plea, and Sentences
On December 11, 2019, in Maricopa County Superior Court case number CR2018-122699-001, Petitioner pleaded guilty to one count of sexual exploitation of a minor, a class two felony and a dangerous crime against children in the first degree (count 1), and to one count of attempted sexual exploitation of a minor, a class three felony and a dangerous crime against children in the second degree (count 10 as amended). (Doc. 14-1 at 3-6, 8-9, 102) In the plea agreement, Petitioner expressly acknowledged that he had read and understood the terms of the plea agreement, had discussed his rights and the charges against him with counsel, and understood the rights he was giving up by entering into the plea agreement. (Id. at 5-6) Petitioner initialed next to each term of the plea agreement and signed the plea agreement. (Id.) The plea agreement provided that Petitioner would be sentenced for 10.5 to 20 years' imprisonment as to count 1. (Id. at 3-4) As to count 10 as amended, the plea agreement provided that Petitioner would be placed on lifetime probation with sex offender and computer usage terms upon his release from imprisonment, would register as a sex offender, and would forfeit all computers and media seized pursuant to a search warrant. (Id. at 4) As a term of the plea agreement, the state agreed to dismiss eight remaining counts against Petitioner. (Id. at 4)
Also on December 11, 2019, the trial court held a change of plea hearing and advised Petitioner of the possible sentencing range, the availability of probation, and Petitioner's constitutional rights and rights of review. (Id. at 8-9) The trial court found that Petitioner knowingly, intelligently, and voluntarily waived his constitutional and appellate rights and entered a guilty plea. (See id. at 11) During pretrial proceedings, Petitioner was represented by appointed counsel Laura Anderson of the Maricopa County Office of the Public Defender (“trial counsel”). (See id. at 6, 8, 11, 31)
On January 28, 2020, the trial court sentenced Petitioner to a presumptive term of 13 years' imprisonment with 631 days credit for time served as to count 1 and supervised lifetime probation upon Petitioner's release from prison as to count 10 as amended. (Id. at 11-15)
B. Post-Conviction Relief (“PCR”) Proceedings
On February 10, 2020, Petitioner filed a pro se PCR notice in the superior court and requested appointment of counsel to represent him during PCR proceedings. (Id. at 1719) On February 25, 2020, the superior court appointed the Office of the Legal Advocate to represent Petitioner. (Id. at 21-23)
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 on February 10, 2020. (Doc. 14-1 at 19)
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)).
On July 9, 2020, appointed PCR counsel Michelle DeWaelsche of the Office of the Legal Advocate (“PCR counsel”) filed a notice of completion of PCR review and stated that she was unable to find any colorable claims for relief to be raised in a PCR petition. (Id. at 25-33) Petitioner's PCR counsel requested an extension of time for Petitioner to file a pro se PCR petition (Id. at 32), which the superior court granted (Id. at 35-36).
On September 10, 2020, Petitioner filed a pro se PCR petition in the superior court. (Id. at 38-51) In his PCR petition, Petitioner challenged the sentence he received, but did not request a new trial or release from custody and discharge. (Id. at 40). Petitioner argued that he received an excessive and unjust sentence as to count 1, that his counsel did not adequately represent him due to defense counsel's heavy workload as a Maricopa County Public Defender, that he was the subject of vindictive prosecution, and that the trial court did not consider mitigating circumstances for Petitioner's sentences. ((Id. at 38-51) The state filed a response (Id. at 53-61), and Petitioner filed a reply (Id. at 63-66).
On January 27, 2021, the superior court dismissed Petitioner's PCR petition, finding that Petitioner had not presented a colorable claim for PCR relief. (Id. at 68-71) In doing so, the superior court stated:
1. Vindictive prosecution
The State is entitled to make any offer or no plea offer at all. Even though the State is not required to make an offer, they did so in this case. [Petitioner] had 2 settlement conferences during which the Court and the prosecutor discussed the potential consequences at trial and the pertinent information relative to the pleas available at the time. The State made it clear it considered mitigation provided by [Petitioner's] attorneys. The State explained that it assessed mitigation in determining the appropriate plea offer. Ultimately, [Petitioner] rejected all offers made and desired to proceed to trial.
On the day of trial, as the parties and the Court awaited the jurors, [Petitioner] decided to accept a plea. The plea changed again, as is the authority of the State. [Petitioner] chose to accept the plea and the plea colloquy was provided. [Petitioner] answered all appropriate questions and showed no signs of duress or coercion and answered in the negative when asked if threats or force were used to get him to plead guilty.
The Court notes [Petitioner] does not cite any law or to any place in the record to support his claims.
[Petitioner's] petition contains no information that would call for a different result. [Petitioner] does not offer any specifics to support his claims. [Petitioner] fails to establish his burden to show vindictiveness on the part of the State. State v. Tsosie, 171 Ariz. 683 (App. 1982).
2. Other Allegations:
The remaining portions of [Petitioner's] Petition are unclear as to his claims.
a. Ineffective Assistance
[Petitioner] appears to claim in part that because public defenders have a lot of cases and are overworked, his attorney was ineffective in assisting him.
To prove ineffective assistance of counsel, [Petitioner] must affirmatively show:
(1) that counsel's performance fell below an objective standard of reasonableness as defined by prevailing professional norms (the deficient performance prong); and
(2) that but for counsel's error(s), there is a reasonable probability that the outcome of the case would have been different (the actual prejudice prong). Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Rosario, 195 Ariz. 264, 987 P.2d 226 (App. 1999).
Again, [Petitioner] fails to cite to any specifics in the record or to law to support his claims. He does not offer information on any prejudice of such claims his attorney has a high caseload.
b. Failure to consider mitigation
[Petitioner] again fails to provide any specific information to support his claims that mitigation was not presented and/or considered.
Without question there was significant mitigation presented regarding [Petitioner], considered both by the State for the purpose of the plea and by the Court for sentencing. The Court outlined during sentencing the mitigation and aggravation that applied to the case. Ultimately, the Court could have sentenced [Petitioner] up to 20 years. The Court reviewed [Petitioner's] Sentencing Memorandum with mitigation information prior to sentencing, and as identified on the record.
The Court sentenced [Petitioner] ¶ 13 years, 4 years less than presumptive and stated on the record that the mitigation outweighed the aggravation to support a sentence that was less than the presumptive. The Court is not required to reweigh the mitigation, as [Petitioner] seems to suggest the Court should do.
[Petitioner] acknowledged the excellent work of his mitigation specialist during the settlement conference with Judge Como. The Court let [Petitioner] add significant information to the discussion, setting forth mitigation from his perspective as it related to the plea offer. (RT 10-15, Settlement Conference 1)
[Petitioner] seems to request a “correction of sentence.” He does not seek a change based on Ariz.R.Crim.P. 33.1 (a)-(c). [Petitioner] appears to reflect his displeasure with the sentence he lawfully received under the agreement into which he entered knowingly, intelligently, and voluntarily. The claim asserted by [Petitioner] is not a basis for relief and therefore, his request must be denied.
c. Federal and Equal Justice claims
[Petitioner] alluded to Federal and Equal Justice claims but failed to provide any follow up on such issues.
[...]
A Defendant bears the burden of proving his or her claims for postconviction relief by a preponderance of the evidence. Ariz. R. Crim. P. 33.13(c).
[Petitioner's] Petition fails to make any claim for relief under Ariz. R. Crim. P. 33.1 [Petitioner's] assertions are unsupported. He fails to provide citations to the record and fails to set forth any legal arguments to support his position. Nothing raised by [Petitioner] rises to the level of any colorable claim.
Furthermore, [Petitioner] entered into the plea knowingly, intelligently, and voluntarily and therefore certain of [Petitioner's] claims are waived under Rule 33.(Id. at 69-71)
On February 9, 2021, Petitioner filed a letter in the superior court, asserting that he was denied his right to a fair trial due to minimum mandatory sentencing, that he received an excessive sentence as to count 1, and that his sentences demonstrated a “lack of mercy[.]” (Id. at 73-76) On April 7, 2021, the superior court construed Petitioner's letter as a motion for rehearing and denied Petitioner's motion, finding that Petitioner had not “provide[d] a sufficient factual or legal basis to support rehearing of the dismissal of his Rule 32 proceeding.” (Id. at 78)
On February 12, 2021, Petitioner filed a petition for review in the Arizona Court of Appeals. (Id. at 80-99) In his petition for review, Petitioner argued that his right to trial was denied due to Arizona's minimum mandatory sentencing, that the appeals process was “rigged,” that the prosecutor in his case was not impartial, and that his sentences indicated “a lack of mercy on the part of the court and its officers.” (Id.)
On August 12, 2021, the Arizona Court of Appeals granted review of Petitioner's petition for review but denied relief. (Id. at 101-04) In doing so, the court of appeals determined:
On review, [Petitioner] reasserts only his claims that he was prosecuted vindictively and received an excessive sentence. Because [Petitioner] does not challenge the superior court's dismissals of the IAC and constitutional claims he raised in the petition, he has waived review of those issues. See Ariz. R. Crim. P. 33.16(c)(4) (“A party's failure to raise any issue that could be raised in the petition for review or cross-petition for review constitutes a waiver of appellate review of that issue.”); State v. Rodriguez, 227 Ariz. 58, 1, ¶ 12, n.4 (App. 2010) (declining to address an argument not raised in a review petition).
For the first time on review, [Petitioner] asserts that his “right to trial was denied because of Arizona's policy of a ‘minimum mandatory sentencing'” statutory scheme. He also protests “the fact that a jury is not aware of the amount of time a ‘guilty' verdict would entail,” arguing such circumstances produce a “recipe for prosecutorial overreach.” But we need not address these arguments because he did not present them to the superior court. See Ariz. R. Crim. P. 33.16(c)(2)(B) (limiting review to “issues the trial court decided”); State v. Ramirez, 126 Ariz. 464, 468 (App. 1980) (precluding defendant from raising PCR issues for the first time on review). Moreover, he neither cites relevant authority nor meaningfully develops his arguments
on those issues, thereby waiving the claim's review. See Ariz. R. Crim. P. 33.16(c)(2)(B)-(D) (requiring a review petition to include, inter alia, specific references to the record, reasons why the petition should be granted, and citations to any supporting legal authority); State v. Stefanovich, 232 Ariz. 154, 158, ¶ 16 (App. 2013) (failing in a review petition to cite relevant authority and develop an argument in a meaningful way waives the claim).
[Petitioner] fails to establish he is entitled to relief on the remaining claims. First, the superior court correctly rejected his vindictive-prosecution claim because he cited no evidence or relevant authority to support his assertions and thus had not carried his initial burden to show “the appearance of vindictiveness.” State v. Tsosie, 171 Ariz. 683, 685 (App. 1992). On review, [Petitioner] argues only that the prosecutor mistreated him because “[she] was at least six months pregnant.. .and should not have been assigned a DCAC case.” We reject his unfounded conclusory assertion. See Stefanovich, 232 Ariz. at 158, ¶ 16; see also State v. Rosario, 195 Ariz. 264, 268, ¶ 23 (App. 1999) (stating a PCR claim must be based on “provable reality, not mere speculation”).
Second, [Petitioner's] complaint that he received an unfair sentence is similarly meritless. Under the plea agreement, [Petitioner] agreed on Count 1 to “be sentenced to the Arizona Department of Corrections for [10.5] ¶ 20 calendar years,” terms within the statutory range for such a conviction and the sentencing judge ultimately imposed a prison term that was four years less than the presumptive term of seventeen years. See A.R.S. §§ 13-3553, -705(D). Nonetheless, on review, [Petitioner] cites his age, lack of criminal history, and purported medical conditions as mitigating circumstances to argue “the sentence indicates a lack of mercy on the part of the court.” Yet the record shows the sentencing judge expressly considered the cited mitigating factors in concluding the mitigating circumstances outweighed the aggravators. Thus, to the extent that Porter asks us to reweigh his proffered mitigation, we will not do so. The sentencing court alone determines the weight given to mitigating evidence. State v. Cazares, 205 Ariz. 425, 427, ¶ 8 (App. 2003).
Nor does [Petitioner] challenge the validity of his plea, nor does he suggest he was improperly advised of the potential sentences. Thus, to state a colorable claim, [Petitioner] must do more than just express general displeasure with the lawful sentence he received under a plea agreement he voluntarily entered. See State v. Donald, 198 Ariz. 406, 414, ¶ 21 (App. 2000) (“To mandate an evidentiary hearing, [a] defendant's challenge must consist of more than conclusory assertions and be supported by more than regret.”). [Petitioner] has therefore shown no error.(Id. at 102-04)
On December 5, 2021, Petitioner filed a petition for review in the Arizona Supreme Court. (Id. at 106-21) In his petition for review, Petitioner argued that Arizona's “minimum mandatory sentencing structure” denied Petitioner his “day in court,” that the prosecutor in his case could not be unbiased, that the state did not consider mitigating factors in sentencing, that Petitioner's trial counsel was ineffective by failing to object to Petitioner's sentences, that Petitioner's sentences violated his Eighth Amendment right against cruel and unusual punishment, that Petitioner was denied mental health treatment, and that Petitioner was “intimidated out of [his] right to trial.” (Id. at 108-19)
On April 6, 2022, the Arizona Supreme Court denied Petitioner's petition for review. (Id. at 123)
II. PETITIONER'S HABEAS CLAIMS
In his March 17, 2023, Petition, Petitioner raises four grounds for relief. (Doc. 1) In Ground One, Petitioner asserts that “minimum mandatory sentencing denied [Petitioner's] right to trial.” (Id. at 6) Petitioner asserts that he faced a potential lifetime sentence if convicted at trial and that risking such a sentence “was not plausible.” (Id.) In Ground Two, Petitioner asserts that he received ineffective assistance of counsel (“IAC”) because Petitioner (a) was classified as a violent sex offender and (b) believed he should have received a lesser sentence as to count 1. (Id. at 7) In support of his Ground Two (b) claim, Petitioner asserts that his trial counsel failed to object to Petitioner's 13-year sentence of imprisonment. (Id.) In Ground Three, Petitioner asserts that he was the subject of vindictive prosecution because the prosecutor in his case was visibly pregnant and, therefore, could not be impartial toward an alleged sex offender. (Id. at 8) In Ground Four, Petitioner asserts that his “mitigating circumstances were not acknowledged[,]” including that Petitioner was a victim of childhood sexual abuse, that Petitioner was previously hospitalized for mental health treatment, and that Petitioner received psychiatric care in the military, leading to his eventual discharge. (Id. at 9)
In their Limited Answer to the Petition, Respondents assert that each of the Petition's claims were waived by Petitioner's guilty plea and that each of Petitioner's claims are procedurally defaulted without excuse. (Doc. 14 at 3-13) Respondents also request that a certificate of appealability be denied. (Id. at 13)
In his reply in support of the Petition, Petitioner asserts that he was denied legal assistance regarding his sentences, that he was denied his constitutional right to a jury trial and subsequently received an excessive sentence, and that mitigating circumstances existed. (Doc. 15 at 1-4) In his reply in support of the Petition, Petitioner makes new arguments that may be construed as an attempt to raise four new claims: (A) that his sentences are a violation of his civil rights; (B) that his sentence as to count 1 is in violation of the Ninth Circuit's Autery decision; (C) that his sentence of lifetime probation as to count 2 violates double jeopardy; and (D) that he accepted a plea offer under duress. (Doc. 15 at 1-3)
United States v. Autery, 555 F.3d 864 (9th Cir. 2009).
III. PROCEDURAL DEFAULT
In their Limited Answer to the Petition, Respondents assert that each of Petitioner's claims in the Petition are procedurally defaulted without excuse. (Doc. 14 at 4-13) As discussed below, Respondents are correct.
A. Legal Framework of Procedural Default
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).
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. In Arizona, “ineffective assistance of counsel claims should be raised in postconviction relief proceedings pursuant to rule 32, Arizona Rules of Criminal Procedure.” Lambright v. Stewart, 241 F.3d 1201, 1203 (9th Cir. 2001) (quoting State v. Atwood, 171 Ariz. 576 (1992)) (finding that failure to raise ineffective assistance of counsel claims on direct appeal did not bar federal habeas review).
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 v. Lampert, 653 F.3d 929, 945 (9th Cir. 2011); McQuiggin v. Perkins, 569 U.S. 383, 399 (2013) (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 v. Payne, 223 F.3d 982, 990 (9th Cir. 2000) (citing Calderon v. Thompson, 523 U.S. 538, 559 (1998)).
B. Exhaustion
1. Ground One
In Ground One, Petitioner asserts that “minimum mandatory sentencing denied [Petitioner's] right to trial.” (Id. at 6) Petitioner asserts that he faced a potential lifetime sentence if convicted at trial and that risking such a sentence “was not plausible.” (Id.) In support of the claim, Petitioner argues that he “might have appealed to [a] jury for leniency” if he had proceeded to a jury trial. (Id.)
Petitioner did not raise his Ground One claim in his PCR petition in the superior court. (Doc. 14-1 at 38-51) In his petition for review in the Arizona Court of Appeals, Petitioner raised his Ground One claim. (Id. at 80-81) As the Arizona Court of Appeals observed:
In his reply in support of his PCR petition, Petitioner did refer to Arizona's “minimum mandatory sentencing” in arguing that he was “forced to accept a sentence under duress” due to the long sentence Petitioner allegedly would have received if convicted by a jury. (Id. at 63)
For the first time on review, [Petitioner] asserts that his “right to trial was denied because of Arizona's policy of a ‘minimum mandatory sentencing'” statutory scheme. He also protests “the fact that a jury is not aware of the amount of time a ‘guilty' verdict would entail,” arguing such circumstances produce a “recipe for prosecutorial overreach.” But we need not address these arguments because he did not present them to the superior court. See Ariz. R. Crim. P. 33.16(c)(2)(B) (limiting review to “issues the trial court decided”); State v. Ramirez, 126 Ariz. 464, 468 (App. 1980) (precluding defendant from raising PCR issues for the first time on review). Moreover, he neither cites relevant authority nor meaningfully develops his arguments on those issues, thereby waiving the claim's review. See Ariz. R. Crim. P. 33.16(c)(2)(B)-(D) (requiring a review petition to include, inter alia, specific references to the record, reasons why the petition should be granted, and citations to any supporting legal authority); State v. Stefanovich, 232 Ariz. 154, 158, ¶ 16 (App. 2013) (failing in a review petition to cite relevant authority and develop an argument in a meaningful way waives the claim).(Id. at 102-103) Likewise, for habeas purposes, Petitioner's failure to raise his Ground One claim in the superior court renders his Ground One claim not properly exhausted. Castille, 489 U.S. at 351.
Further, Petitioner did not assert a federal constitutional or legal basis for his Ground One claim even when he raised such in a procedurally inappropriate manner. See Baldwin, 541 U.S. at 32-33 (must assert factual and federal legal bases to fairly present claim). Although Petitioner asserted in his petition for review in the Arizona Supreme Court that minimum mandatory sentencing violated the “18 USCS ‘Booker' decision” (Doc. 14-1 at 109), Petitioner did not cite “18 USCS ‘Booker'” in his PCR petition in the superior court or his subsequent petition for review in the Arizona Court of Appeals. See Castillo, 399 F.3d at 1000 (for exhaustion, petitioner must present federal constitutional issue to court of appeals). A claim presented for the first time in a discretionary petition for review to the Arizona Supreme Court is not fairly presented. Casey, 386 F.3d at 918.
In his Ground One claim, Petitioner also notes that he recently noticed that video evidence provided to him belonged to a different defendant's case (State v. Donofrio) and that he never saw the videos leading to the charges against him. (Doc. 14-1 at 6) Because Petitioner did not raise the video evidence issue noted in Ground One in his superior court PCR petition or in his petition for review in the court of appeals, this issue was not properly exhausted. Swoopes, 196 F.3d at 1010.
Because Petitioner did not fairly present his Ground One claim to the state courts during his PCR proceedings, Petitioner's Ground One claim was not properly exhausted.
2. Ground Two
In Ground Two of the Petition, Petitioner asserts that he received ineffective assistance of counsel (“IAC”) because Petitioner (a) was classified as a violent sex offender and (b) believed he should have received a lesser sentence as to count 1. (Doc. 1 at 7) Petitioner states that he “agreed verbally” to a 10.5-year term of imprisonment yet received a 13-year sentence, and that his trial counsel did not object when Petitioner received a 13-year sentence. (Id.)
a. Ground Two (a)
In his PCR petition in the superior court, Petitioner did not raise his Ground Two (a) claim that he received IAC due to classification as a violent sex offender. Neither did Petitioner raise his Ground Two (a) claim in his petition for review in the Arizona Court of Appeals. Because Petitioner did not fairly present his Ground Two (a) claim to the state courts during his PCR proceedings, where he was required to raise such, Petitioner's Ground Two (a) claim was not properly exhausted. Swoopes, 196 F.3d at 1010.
b. Ground Two (b)
As for Petitioner's Ground Two (b) IAC claim regarding sentence length, Petitioner raised his Ground Two (b) claim in his PCR petition in the superior court, asserting that his trial counsel did not provide sufficient representation “due to the overwhelming workload of a Maricopa County public defender” and that Petitioner would have received a decreased sentence if Petitioner had retained counsel. (Doc. 14-1 at 43-44) Petitioner did not raise his Ground Two (b) claim in his petition for review in the Arizona Court of Appeals. Indeed, as the Arizona Court of Appeals observed, Petitioner did not raise any ineffective assistance of counsel claim in the Arizona Court of Appeals:
On review, [Petitioner] reasserts only his claims that he was prosecuted vindictively and received an excessive sentence. Because [Petitioner] does not challenge the superior court's dismissals of the IAC and constitutional claims he raised in the petition, he has waived review of those issues. See Ariz. R. Crim. P. 33.16(c)(4) (“A party's failure to raise any issue that could be raised in the petition for review or cross-petition for review constitutes a waiver of appellate review of that issue.”); State v. Rodriguez, 227 Ariz. 58, 1, ¶ 12, n.4 (App. 2010) (declining to address an argument not raised in a review petition).(Doc. 14-1 at 102)
Thus, to the extent that the Petition is construed to raise any additional ineffective assistance claim regarding Petitioner's trial counsel, such claim is unexhausted because Petitioner did not raise any IAC claim in the Arizona Court of Appeals. Swoopes, 196 F.3d at 1010 (to fairly exhaust, petitioner must present claims to Arizona Court of Appeals through appropriate post-conviction relief).
Petitioner did raise his Ground Two (b) claim in his petition for review to the Arizona Supreme Court, in which he asserted that his trial counsel failed to object to Petitioner's sentence. (Id. at 111-13) However, because Petitioner did not raise his Ground Two (b) claim to the court of appeals during his PCR proceedings, where he was required to raise such, Petitioner's Ground Two (b) claim was not properly exhausted. Swoopes, 196 F.3d at 1010 (to fairly exhaust, petitioner must present claims to Arizona Court of Appeals through appropriate post-conviction relief); Baldwin, 541 U.S. at 32 (claim must be presented to each appropriate state court).
3. Ground Three
In Ground Three of the Petition, Petitioner asserts that he was the subject of vindictive prosecution because the prosecutor in his case was visibly pregnant and, consequently, could not be impartial in a case involving an alleged sex offender. (Doc. 1 at 8) In support of the prosecutor's alleged vindictiveness, Petitioner asserts that the prosecutor argued against a 10.5-year term of imprisonment, despite other defendants receiving shorter sentences and despite Petitioner having no prior criminal history aside from a “minor marijuana” conviction that Petitioner states would have been expunged. (Id.)
Petitioner raised a claim of vindictive prosecution in his PCR petition in the superior court. (Doc. 14-1 at 44-45) Petitioner also raised a claim of vindictive prosecution in his petition for review in the court of appeals. (Id. at 83-84) Petitioner further raised a claim of vindictive prosecution in his petition for review to the Arizona Supreme Court. (Id. at 11011) However, Petitioner did not assert a federal constitutional or legal basis for his claim of vindictive prosecution in his state court PCR proceedings. See Gray, 518 U.S. at 162-63 (to be fairly presented, claim must include statement of operative facts and specific federal legal theory); Baldwin, 541 U.S. at 32-33. As the Arizona Court of Appeals observed:
[Petitioner] fails to establish he is entitled to relief on the remaining claims. First, the superior court correctly rejected his vindictive-prosecution claim because he cited no evidence or relevant authority to support his assertions and thus had not carried his initial burden to show “the appearance of vindictiveness.” State v. Tsosie, 171 Ariz. 683, 685 (App. 1992). On review, [Petitioner] argues only that the prosecutor mistreated him because “[she] was at least six months pregnant.and should not have been assigned a DCAC case.” We reject his unfounded conclusory assertion. See Stefanovich, 232 Ariz. at 158, ¶ 16; see also State v. Rosario, 195 Ariz. 264, 268, ¶ 23 (App. 1999) (stating a PCR claim must be based on “provable reality, not mere speculation”).
Because Petitioner did not fairly present his Ground Three claim to the state courts, where he was required to raise such, Petitioner's Ground Three claim was not properly exhausted.
4. Ground Four
In Ground Four of the Petition, Petitioner asserts that his “mitigating circumstances were not acknowledged[.]” (Doc. 1 at 9) Petitioner asserts that he was a victim of childhood sexual abuse, that Petitioner was previously hospitalized for mental health treatment, and that Petitioner received psychiatric care in the military, leading to his eventual discharge. (Id.)
Petitioner raised his Ground Four claim in his PCR petition in the superior court. (Doc. 14-1 at 46-47) In his petition for review in the court of appeals, Petitioner argued that his sentences demonstrated “a lack of mercy” due to his age, prior criminal history, and family medical history. (Id. at 81-82) Petitioner did not assert in his petition for review that the sentencing court did not consider mitigating factors including that Petitioner was a victim of childhood abuse, that he had been hospitalized, or that he had received psychiatric care. In his petition for review to the Arizona Supreme Court, Petitioner argued that his mitigating circumstances were not considered, including that he was a victim of childhood sexual abuse, had been hospitalized, was discharged from the military for psychological reasons, and had family health issues. (Id. at 113-17)
Insofar as Petitioner did not raise the factual basis for his Ground Four claim in his petition for review in the Arizona Court of Appeals, Petitioner's Ground Four claim was not properly exhausted. Swoopes, 196 F.3d at 1010. Further, Petitioner did not assert any federal constitutional or legal basis for his claims regarding mitigating circumstances in his PCR petition or in his subsequent petitions for review. McFadden, 399 F.3d at 999. Because Petitioner did not fairly present his Ground Four claim to the state courts during his PCR proceedings, Petitioner's Ground Four claim was not properly exhausted.
C. Grounds One Through Four Are Procedurally Defaulted
As set forth above, Grounds One through Four of the Petition are unexhausted. Petitioner's Ground One claim insofar as the videos and Petitioner's Ground Two (a), Three, and Four claims are implicitly procedurally defaulted because it is too late under Arizona procedure for Petitioner to return to state court to properly exhaust his claims. See Ariz. R. Crim. P. 33.2(a)(3) (defendant is precluded from relief pursuant to Rule 33.1(a) that was waived in previous PCR proceedings); Ariz. R. Crim. P. 33.4(b)(3)(A) (claims filed pursuant to Rule 33.1(a) must be filed within 90 days after oral pronouncement of sentence); Ariz. R. Crim. P. 33.1(b)-(h), 33.2(b)(1), 33.4(b)(3)(B) (allowing defendant to assert claims identified in Rule 33.1(b) through (h) “within a reasonable time after discovering the basis for the claim”). Petitioner does not argue that he is able to return to state court to present his unexhausted Petitioner's Ground One claim insofar as the videos and Petitioner's Ground Two (a), Three, and Four claims, nor does the record support such an argument.
Arizona Rule of Criminal Procedure 33.2(a)(3) provides that PCR relief is precluded on any claim “waived at trial or on appeal, or in any previous post-conviction proceeding, except when the claim raises a violation of a constitutional right that can only be waived knowingly, voluntarily, and personally by the defendant.” (emphasis supplied). The italicized language was added to the rules in January 2020, but even under the prior rule, Arizona courts limited an exception to preclusion only in circumstances where “an asserted claim is of sufficient constitutional magnitude.” Stewart v. Smith, 202 Ariz. 446, 449 (2002). The Arizona Supreme Court has instructed that examples encompassed by this phrase include the right to counsel, the right to a jury trial, and the right to a twelve-person jury. See Id. Petitioner's Grounds One (b), Two (a), Three, and Four claims do not allege a violation of a constitutional right that can only be waived knowingly, voluntarily, or personally by a defendant.
In addition, Petitioner's Ground One and Ground Two (b) claims are expressly procedurally defaulted because the state court applied plain procedural bars. In Petitioner's PCR proceedings, the court of appeals determined that Petitioner had not raised his Ground One claim of minimum mandatory sentencing to the superior court and that such a claim was precluded pursuant to Ariz. R. Crim. P. 33.16(c)(2)(B)-(D). (Doc. 14-1 at 102-03) The court of appeals also determined that Petitioner had waived his Ground Two (b) IAC claim pursuant to Ariz. R. Crim. P. 33.16(c)(4) because Petitioner did not challenge the superior court's dismissal of such a claim in his petition for review. (Id. at 102) Ariz. R. Crim. P. 33.16 (formerly Ariz. R. Crim. P. 32.9) is “both ‘independent' of the merits of the federal claim and an ‘adequate' basis for the court's decision.” Harris, 489 U.S. at 260; Stewart, 536 U.S. at 859-60 (Arizona's Rule 32 determinations are independent of federal law because they do not require evaluation of federal constitutional ruling); Stewart, 241 F.3d at 1195 n.2 (finding that “Arizona's procedural default rule is regularly followed”); see also Pinzon v. Ryan, 2015 WL 11071468, at *5-6 (D. Ariz. Sept. 22, 2015) (finding Ariz. R. Crim. P. 32.9 independent and adequate).
Likewise, to the extent that the Petition is construed to raise any additional ineffective assistance claim regarding Petitioner's trial counsel, such claim is procedurally defaulted because Petitioner did not raise any IAC claim in the Arizona Court of Appeals.
Thus, Grounds One through Four of the Petition are not only unexhausted, but they 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
In his 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. Id. at 753. Petitioner has not sufficiently explained his failure to properly present his Grounds One through Four claims during his state court PCR proceedings. Moreover, Petitioner has not shown that he could not raise his Grounds One through Four claims during his PCR proceedings and prior to these habeas proceedings. Petitioner had the opportunity to fairly present his claims during his PCR proceedings but did not do so. Notably, Petitioner raised his Ground One claim to the court of appeals during his PCR proceedings; raised his Grounds Two (b) and Four claims to the superior court during his PCR proceedings; and set out the factual basis of his Ground Three claim in his PCR proceedings, but did not set out a federal constitutional or legal basis for his Ground Three claim.
In his Petition, Petitioner only states that he recently noticed the facts underlying his Ground One claim and issue that he had received videos from another case, or else Petitioner would have raised the claim and issue earlier. (Doc. 1 at 6) Petitioner has not established cause that is not “fairly attributable” to Petitioner to excuse his failure to raise his Ground One claim and the video issue prior to these habeas proceedings. Coleman, 501 U.S. at 753. If Petitioner knew about or could have discovered evidence to support his claim with reasonable investigation, Petitioner's failure to obtain supporting evidence does not constitute cause. See McCleskey v. Zant, 499 U.S. 467, 497-99 (1991) (superseded by statute on other grounds). The videos supporting in the charges against Petitioner would have existed at the time of conviction and sentencing, and Petitioner could have discovered the factual basis for this Ground One issue at the time of his PCR proceedings in state court. Further, the record reflects that Petitioner was aware of the sentencing framework and ranges at the time of his guilty pleas, undermining any claim that the factual and legal basis was unavailable to him during his superior court and court of appeals PCR proceedings. Petitioner has not shown that the factual or legal basis for his Ground One claim or the video issue was not reasonably available to Petitioner or his counsel, nor that interference by officials made Petitioner's compliance with the state court procedural rules impractical. Murray, 477 U.S. at 488.
In addition, even if Petitioner could establish cause to excuse his procedural default of Grounds One through Four, Petitioner has not shown that he suffered prejudice or that any alleged constitutional violation “worked to his actual and substantial disadvantage[.]” United States v. Frady, 456 U.S. 152, 170 (1982).
Accordingly, Petitioner has not established cause and prejudice to excuse his procedural default of Grounds One through Four of the Petition.
2. Miscarriage of Justice/Actual Innocence
As set forth above, the miscarriage of justice exception to procedural default “is limited to those extraordinary cases where the petitioner asserts his [actual] innocence and establishes that the court cannot have confidence in the contrary finding of guilt.” Johnson, 541 F.3d at 937. To meet this exception to procedural default, Petitioner must “support his allegations of constitutional error with new reliable evidence[,]” Schlup, 513 U.S. 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 does not argue miscarriage of justice or actual innocence. To the Petition, Petitioner has attached the cover letter for his September 2020 pro se PCR petition in the superior court (Doc. 1 at 12), a March 2020 letter from Petitioner's appointed PCR counsel (Id. at 13-15), the Office of the Legal Advocate PCR Record Retention Policy (Id. at 16), the Arizona Court of Appeals' May 2, 2022, mandate in Petitioner's PCR proceedings (Id. at 17-18), a February 2020 letter from the Maricopa County Public Defender to the Office of the Legal Advocate, forwarding Petitioner's trial file (Id. at 19-21), the superior court's February 25, 2020, order initiating Petitioner's PCR proceedings and appointing PCR counsel (Id. at 22-24), a February 25, 2020, Notice of Compliance from Petitioner's trial counsel, stating that she provided files to Petitioner's appointed PCR counsel (Id. at 2528), a December 10, 2020, letter from Petitioner's appointed PCR counsel (Id. at 29-30), the superior court's October 16, 2020, and December 8, 2020, orders setting response and reply dates for Petitioner's PCR petition (Id. at 31-32), Petitioner's September 2021 request for an extension of time to file his petition for review to the Arizona Supreme Court (Id. at 33-35), a September 2021 letter from the Arizona Court of Appeals forwarding Petitioner's request for an extension of time to file his petition for review to the Arizona Supreme Court (Id. at 36), a July 9, 2020, letter from Petitioner's appointed PCR counsel to Petitioner, informing Petitioner that PCR counsel did not find any colorable claims to raise in a PCR petition and explaining Petitioner's next steps (Id. at 27-40), and Petitioner's petition for review to the Arizona Supreme Court during his PCR proceedings (Id. at 41-49). Petitioner's attachments are not “new reliable evidence” that would likely prevent a jury from convicting him. Schlup, 513 U.S. at 324. Petitioner's briefs in his PCR proceedings and the state court opinions attached to his Petition are not new, reliable evidence that would likely prevent a jury from convicting Petitioner of the offenses underlying his claims in the Petition. Petitioner does not explain how the letters from Petitioner's various appointed counsel are new, reliable evidence.
Although Petitioner asserts in his Petition that he was the subject of vindictive prosecution and that the video evidence he was provided belonged to a different defendant, Petitioner does not assert factual innocence of the charges to which Petitioner pleaded guilty. A claim of actual innocence requires a petitioner to show factual innocence, as opposed to mere legal insufficiency. Bousley, 523 U.S. at 623. Further, Petitioner pleaded guilty on the record. Similarly, in reply in support of his Petition, Petitioner requests “only that [his] sentence be adjusted[.]” (Doc. 15 at 3)
Petitioner has not met his burden to establish actual innocence that would excuse his procedural default of Grounds One through Four of the Petition.
IV. PETITIONER'S REPLY (Doc. 15) MAY SEEK TO RAISE ADDITIONAL CLAIMS
In his reply in support of the Petition, Petitioner makes arguments that may be construed as an attempt to raise four additional habeas claims: (A) that his sentences are a violation of his civil rights (“claim A”); (B) that his sentence as to count 1 is in violation of the Ninth Circuit's 2009 Autery decision (“claim B”); (C) that his sentence of lifetime probation as to the second count of conviction (count 10 (as amended)) violates double jeopardy (“claim C”); and (D) that he accepted a plea offer under duress (“claim D”). (Doc. 15 at 1-3)
Autery, 555 F.3d at 864.
Claim D may be an argument in support of the Petition's procedurally defaulted Ground One claim regarding minimum mandatory sentencing.
Insofar as Petitioner raises arguments in his reply that Petitioner did not assert in his Petition, new arguments and claims may not be raised for the first time in a reply brief. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); Delgadillo v. Woodford, 527 F.3d 919, 930 n.4 (9th Cir. 2008). Importantly, Petitioner was required to seek consent by Respondents or leave of Court to amend his Petition to add additional claims, but Petitioner has not done so. See Fed.R.Civ.P. 15. Thus, to the extent that Petitioner's reply attempts to raise additional habeas claims, the attempt should be rejected.
Further, as discussed below, the attempted additional claims are futile because such claims are unexhausted and procedurally defaulted without excuse.
A. Reply's Attempted Additional Claims are Unexhausted
1. Attempted Claim A (Civil Rights Violation)
Claim A asserts that Petitioner's sentences are a violation of his civil rights. (Doc. 15 at 1) Petitioner did not raise a claim that his sentences violated his civil rights in his PCR petition in the superior court or in his subsequent petition for review in the court of appeals. Although Petitioner asserted in his petition for review to the Arizona Supreme Court that his civil rights were violated due to the state denying Petitioner mental health treatment and legal assistance, Petitioner did not assert that his sentences violated his civil rights. (Doc. 14-1 at 117-18) Because Petitioner did not fairly present claim A to the state courts during his PCR proceedings, claim A was not properly exhausted. Gray, 518 U.S. at 162-63 (to be fairly presented, claim must include statement of operative facts and specific federal legal theory); Swoopes, 196 F.3d at 1010.
2. Attempted Claim B (Autery Violation)
In claim B, Petitioner asserts that his 13-year sentence violated the Ninth Circuit's 2009 decision in Autery. (Doc. 15 at 1) Petitioner cited Autery in his PCR petition but did not assert that his 13-year sentence as to count 1 was in violation of the Ninth Circuit's decision in Autery. (Doc. 14-1 at 45) Petitioner did not raise a claim regarding violation of Autery in his petition for review in the court of appeals during his PCR proceedings, where he was required to raise such. Swoopes, 196 F.3d at 1010. Although Petitioner asserted that his sentence violated the Autery decision in his petition for review to the Arizona Supreme Court, Petitioner did not fairly present his Autery claim by failing to present such a claim to the court of appeals. Id.; Baldwin, 541 U.S. at 32. As such, claim B was not properly exhausted.
3. Attempted Claim C (Double Jeopardy)
Claim C asserts that Petitioner's sentence of lifetime probation “for the same crime is ‘Double Jeopardy.'” (Doc. 15 at 2) In his PCR proceedings in the superior court, the court of appeals, and the Arizona Supreme Court, Petitioner did not raise a claim that his sentence of lifetime probation as to count 10 (as amended) constitutes double jeopardy. Because Petitioner failed to raise claim C during his PCR proceedings, where he was required to raise such, claim C is unexhausted. Swoopes, 196 F.3d at 1010.
4. Attempted Claim D (Plea Offer Accepted Under Duress)
Claim D asserts that Petitioner accepted his plea offer under duress. (Doc. 15 at 23) In his PCR proceedings in the superior court, the court of appeals, or the Arizona Supreme Court, Petitioner did not raise a claim that he accepted his plea offer under duress. Because Petitioner failed to raise claim D during his PCR proceedings, where he was required to raise such, Petitioner's claim D is unexhausted. Swoopes, 196 F.3d at 1010.
B. Reply's Attempted Additional Claims are Procedurally Defaulted Without Excuse
The four attempted claims in the Reply are implicitly procedurally defaulted because it is too late under Arizona procedure for Petitioner to return to state court to properly exhaust these claims. See Ariz. R. Crim. P. 33.2(a)(3) (defendant is precluded from relief pursuant to Rule 33.1(a) that was waived in previous PCR proceedings); Ariz. R. Crim. P. 33.4(b)(3)(A) (claims filed pursuant to Rule 33.1(a) must be filed within 90 days after oral pronouncement of sentence); Ariz. R. Crim. P. 33.1(b)-(h), 33.2(b)(1), 33.4(b)(3)(B). Petitioner does not argue that he is able to return to state court to present these claims, nor does the record support such an argument.
Further, for the same reasons as discussed in Section III(D), supra, Petitioner has not shown either cause and prejudice or a miscarriage of justice/actual innocence that would excuse his procedural default of these claims.
V. CONCLUSION
For the reasons set forth above, Petitioner procedurally defaulted Grounds One through Four of the Petition without excuse. Because each ground of the Petition is procedurally defaulted without excuse, the Court does not reach Respondents' arguments regarding waiver and noncognizability. Therefore, it is recommended that the Petition be dismissed with prejudice and that the Clerk of Court be directed to terminate this matter.
Assuming the recommendations herein are followed in the District Judge's judgment, the undersigned recommends that a certificate of appealability be denied because dismissal is justified by a plain procedural bar and reasonable jurists would not find the procedural ruling debatable. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Accordingly,
IT IS RECOMMENDED that Rudolph John Porter, Jr.'s Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 1) be dismissed with prejudice and that the Clerk of Court be directed to terminate this matter.
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.