Opinion
CV-23-00126-PHX-MTL (ASB)
02-22-2024
Christopher Lee Smith, Petitioner, v. Lance Hetmer, et al., Respondents.
REPORT AND RECOMMENDATION
Honorable Alison S. Bachus, United States Magistrate Judge
TO THE HONORABLE MICHAEL T. LIBURDI, UNITED STATES DISTRICT JUDGE:
Petitioner Christopher Lee Smith (“Petitioner”), who is confined in the Arizona State Prison Complex, has filed a pro se Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2254 (Doc. 1). For the reasons that follow, the Court recommends that the Petition be denied and dismissed.
Citation to the record indicates documents as they are displayed in the District of Arizona's official Court electronic document filing system under Case No. CV-23-00126-PHX-MTL (ASB).
PROCEDURAL HISTORY
I. State Proceedings
A. Facts
The Arizona Court of Appeals found the following facts and procedural history as true:
The Arizona Court of Appeals' recitation of the facts is presumed correct. See 28 U.S.C. § 2254(d)(2), (e)(1); Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012) (rejecting argument that statement of facts in state appellate court's opinion should not be afforded the presumption of correctness).
On December 24, 2007, Smith went to his parents' home for a Christmas Eve party. Smith drank alcohol at the party. Smith's sister testified that Smith was supposed to stay at his parents' house that evening because he had too much to drink at the party. Smith's stepmom testified that after the party ended, Smith went to the bedroom, presumably to sleep, at around 10:00 p.m. Smith's stepmom turned off all the lights and locked the doors before she went to bed. At around midnight, Smith's stepmom awoke, noticed the kitchen light was on, and that Smith was not in his bedroom. Smith's parents searched their home for him. Smith's stepmom noticed that the front door was now unlocked. Smith's parents determined that he was no longer in their home and his car was gone.
At approximately 11:15 p.m., Smith was involved in a head-on collision. Smith was driving his vehicle the wrong direction down Pecos Road. He collided with a minivan. Three people inside the minivan were seriously injured, and a fourth person inside the minivan was killed.
Immediately preceding the accident, a retired police officer witnessed a car turn the wrong way down Pecos Road traveling at a speed exceeding fifty miles per hour. The retired officer also witnessed several cars making evasive maneuvers to avoid the oncoming vehicle.
Another witness testified that he saw a car traveling the wrong direction, headed toward him, and he flashed his lights and honked his horn at the driver. He also saw a few other cars doing the same thing he was doing: trying to alert the driver in the oncoming car. An off-duty police officer was driving home and saw the immediate aftermath of the head-on collision. The off-duty officer approached the scene to render aid and noticed that Smith smelled strongly of alcohol and had bloodshot eyes. Based on the officer's training, he believed alcohol was a factor in the collision.
A police officer, responding to the accident, also determined that Smith smelled of alcohol and had bloodshot eyes. The responding officer further found, based on his training, that Smith was impaired from alcohol.
Two blood samples were taken from Smith and analyzed for their alcohol content. Smith's blood alcohol content was found to be .25, well above the standard legal limit for unimpaired driving.
Smith's defense at trial was that he had a sleep episode; he was “sleep-driving.” Smith's father testified that Smith had been known to sleepwalk as a child.. .At trial, Smith objected to the AU instruction on the basis that it was confusing. Smith requested and offered a different AU instruction but the trial court denied Smith's proffered AU instruction.
The jury convicted Smith of one count of second degree murder and three counts of aggravated assault.(Doc. 22-7 at 32-35.)
“AU instruction” refers to an “Effect of Alcohol Use” instruction. (Doc. 22-7 at 32.)
B. Direct Appeal
On June 10, 2011, Petitioner filed a direct appeal in which he presented one issue:
I. Whether the court erred when over objection, it gave the “Effect of Intoxication Use” jury instruction since it shifted the burden of proof to Smith and confused the jury?(Doc. 22-7, Exh. G.)
On January 31, 2012, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. (Doc. 22-7 at 31-48.) Petitioner filed a petition for review and the Arizona Supreme Court denied the petition. (Id. at 30.) The Mandate issued on October 29, 2012. (Id.)
C. Post-Conviction Relief Proceedings
1. First Petition
On October 9, 2012, Petitioner timely filed a notice of post-conviction relief (“PCR”). (Doc. 22-7, Exh. J.) On July 3, 2013, Petitioner, through counsel, filed his first PCR petition in which he presented three issues:
I. Failure of trial counsel to properly interview witnesses;
II. Prejudicial effect of trial counsel agreeing to a stipulation regarding a prior DUI conviction; and
III. Failure of trial counsel to prepare expert witness Charles Gaither M.D. and have expert Gaither interview Petitioner prior to trial or conduct a sleep study.(Doc. 22-7, Exh. K.)
On October 21, 2013, the superior court denied Petitioner's PCR petition, finding he failed to demonstrate a colorable claim of ineffective assistance of counsel. (Doc. 22-7, Exh. N.) Petitioner filed a petition for review in the Arizona Court of Appeals and that court dismissed the petition as untimely on February 11, 2014. (Doc. 22-7, Exh. R.) Petitioner then filed a petition for review in the Arizona Supreme Court which was denied on September 15, 2014. (Doc. 22-7, Exh. S.)
2. Second Petition
Petitioner filed a second notice of PCR on November 6, 2014, and argued, under State v. Spencer, 235 Ariz. 496 (App. 2014), Petitioner's warrantless blood draw at the hospital violated his Fourth and Fourteenth Amendment rights and A.R.S. § 28-1388(E). (Doc. 22-7, Exhs. T, V.) The superior court found Petitioner failed to state a claim for which relief could be granted in an untimely Rule 32 proceeding and dismissed the PCR notice. (Doc. 22-7, Exh. U.) Petitioner filed a motion for reconsideration in the superior court on December 10, 2014. (Doc. 22-7, Exh. V.) That court denied the motion for reconsideration. (Doc. 22-8, Exh. W.)
3. Third Petition
On February 4, 2015, Petitioner filed a third notice of PCR and argued identical grounds for relief as those stated in his second notice of PCR and his motion for reconsideration. (Doc. 22-8, Exh. X.) The superior court summarily dismissed the third notice of PCR on March 20, 2015. (Doc. 22-8, Exh. Y.) Thereafter, Petitioner filed a petition for review in the Arizona Court of Appeals. That court granted review but denied relief. (Doc. 22-8, Exh. Z.)
4. Fourth Petition
On October 14, 2021, Petitioner filed a fourth PCR petition in state court, arguing in part that he had received insufficient pre-sentence incarceration credit. (Doc. 15-1, Exh. C.) The State conceded that Petitioner was entitled to thirty-two days' additional presentence incarceration credit (Doc. 15-1 at 73) and the superior court agreed (id. at 83). On January 18, 2022, that court awarded Petitioner the additional days of presentence incarceration credit, denied relief on all other claims raised in the PCR petition, and denied Petitioner's motion for reconsideration. (Id.) The Arizona Court of Appeals denied Petitioner's petition for review after finding Petitioner failed to show that the trial court had erred. (Id. at 87.) Petitioner's motion for reconsideration was denied on November 17, 2022, and the Mandate issued on December 9, 2022. (Id. at 85.)
II. Federal Proceedings
A. First Federal Habeas Petition
On December 12, 2014, Petitioner filed a document captioned “Notice for Petition Under 28 U.S.C. § 2254 For a Writ of Habeas Corpus by a Person In State Custody (Non Death Penalty).” (Doc. 1 in 14-CV-02678-PHX-JAT.) Petitioner appeared to seek an extension of the statute of limitation for filing a petition for writ of habeas corpus under 28 U.S.C. § 2254. (Id.) The Court denied the motion for an extension of the statute of limitation and dismissed the case without prejudice. (Doc. 5 in 14-CV-02678-PHX-JAT.)
B. Second Federal Habeas Petition
On July 30, 2015, Petitioner filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 and a Motion to Appoint Counsel. (Doc. 1 in 15-CV-01465-PHX-JAT.) The Court found that Petitioner's conviction became final on October 21, 2013, thus, his habeas petition was untimely. (Doc. 20 in 15-CV-01465-PHX-JAT.) The petition was denied and dismissed with prejudice. (Id.)
C. The Instant Federal Habeas Petition
On January 17, 2023, Petitioner filed the instant Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) The Court summarized the claims for relief as follows:
Petitioner raises eight grounds for relief, claiming: that his Fifth, Sixth, and Fourteenth Amendment rights were violated when his sentence was amended “through the minute entry instead of in open court with him present” (Ground One); that his due process rights were violated when the trial court failed to give the jury an “intervening cause” instruction (Ground Two); erroneously instructed the jury on second degree murder (Ground Four), and admitted evidence of a prior conviction for driving under the influence (DUI) (Ground Seven); that his constitutional rights were violated when the jury was given an “effect of alcohol use” instruction (Ground Three); that he received ineffective assistance of trial counsel because his attorney failed to properly interview witnesses (Ground Five), failed to have a defense expert interview Petitioner (Ground Six), and stipulated to the admission of evidence of a prior DUI conviction (Ground Seven); that he received ineffective assistance of appellate counsel when his appellate attorney failed to challenge the admission of evidence regarding Petitioner's prior DUI conviction (Ground Seven); and that his sentence violates the Fifth[,] Sixth, and Fourteenth Amendments because it does not comport with Arizona Revised Statutes section 13-711 (Ground Eight).(Doc. 7 at 2-3.)
On July 20, 2023, Respondents filed a Motion to Dismiss for Lack of Jurisdiction. (Doc. 15.) On August 9, 2023, Petitioner filed a Response (Doc. 16), and Respondents did not file a Reply. In its January 5, 2024 Order, the Court denied Respondents' Motion to Dismiss and ordered Respondents to file an Answer to the Petition. (Doc. 19.) Respondents filed an Answer on January 12, 2024, asserting: (1) Petitioner failed to properly exhaust Grounds Two and Four through Seven in the state courts, and they are procedurally defaulted without excuse; (2) Grounds One, Two, Four, Seven, and Eight are not cognizable on federal habeas review; and (3) Ground Three is meritless. (Doc. 22.) Petitioner filed a Reply maintaining the contrary and asked the Court to (1) let the record reflect his objections for not receiving the Report and Recommendation (Doc. 18) before he could timely object, (2) grant “leave to file a proper COA, once he does receive it,” and (3) appoint an attorney “due to the increasing complexity and Petitioner's lack of legal training.” (Doc. 24-1.)
DISCUSSION
I. Applicable Law
The writ of habeas corpus affords relief to persons in custody pursuant to the judgment of a state court in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2241(c)(3), 2254(a). Petitions for Habeas Corpus are governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). 28 U.S.C. § 2244.
A. Standard of Review
1. Exhaustion
To seek federal habeas review, a state prisoner must also exhaust the available state remedies. 28 U.S.C. § 2254(b)(1)(A). To exhaust state remedies, a petitioner must afford the state courts the opportunity to rule upon the merits of his federal claims by “fairly presenting” them “in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing Duncan v. Henry, 513 U.S. 364, 365 (1995) and O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). In other words, proper exhaustion requires a petitioner to “give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” Date v. Schriro, 619 F.Supp.2d 736, 762 (D. Ariz. 2008) (quoting O'Sullivan, 526 U.S. at 845).
Under controlling case law, fair presentment of a claim requires the Court to engage in a two-prong analysis. First, the Court must consider whether the petitioner invoked “one complete round” of the state's established review process for any claim raised on federal habeas review. O'Sullivan, 526 U.S. at 845. The Court then must determine whether the petitioner pled the federal nature of the claim with “considerable specificity” before the state courts. Rose v. Palmateer, 395 F.3d 1108, 1111 (9th Cir. 2005); see also Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005) (holding “[a] petitioner fairly and fully presents a claim to the state court for purposes of satisfying the exhaustion requirement if he presents the claim: (1) to the proper forum, (2) through the proper vehicle, and (3) by providing the proper factual and legal basis for the claim”) (internal citations omitted).
a. Proper Forum
“To exhaust state remedies, a petitioner must afford the state courts the opportunity to rule upon the merits of his federal claims by ‘fairly presenting' them to the state's ‘highest' court in a procedurally appropriate manner.” Date, 619 F.Supp.2d at 762 (quoting Castille v. Peoples, 489 U.S. 346, 349 (1989) and Baldwin, 541 U.S. at 29). In non-capital cases arising in Arizona, the “highest court” requirement is satisfied by fair presentation to the Arizona Court of Appeals. Date, 619 F.Supp.2d at 762 (discussing Crowell v. Knowles, 483 F.Supp.2d 925 (D. Ariz. 2007) and Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999)). The Ninth Circuit in Swoopes held “Arizona has declared that its ‘complete round' [of appellate review] does not include discretionary review before the Arizona Supreme Court.” 196 F.3d at 1010 (clarifying the holding in O'Sullivan requiring a petitioner to invoke “one complete round” of a state's established appellate review process). Thus, claims of Arizona state prisoners “are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.” Id.
b. Specificity of Federal Basis
In addition to presenting his claims to the proper court, a state prisoner must fairly present his claims to the state court by describing both the operative facts and the federal legal theory on which his claims are based. See Date, 619 F.Supp.2d at 764; Baldwin, 541 U.S. at 33; Duncan, 513 U.S. at 365-66 (holding petitioners must fairly present federal claims to state courts in order to give the State the “opportunity to pass upon and correct” alleged violations of federal rights, which requires petitioners to alert the state courts that they are asserting claims under the federal Constitution) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)).
A claim is not fairly presented to the state court if that court “must read beyond a petition or a brief. .that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so.” Baldwin, 541 U.S. at 32. Full and fair presentation requires a petitioner to “present the substance of his claim to the state courts, including reference to a federal constitutional guarantee and a statement of facts that entitle the petitioner to relief.” Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009); see also Picard, 404 U.S. at 278 (holding fair presentation of a claim in state courts requires petitioners to present the state courts with the “substantial equivalent” of the claim raised in federal court).
In the Ninth Circuit, petitioners “must make the federal basis of the claim explicit either by specifying particular provisions of the federal Constitution or statutes, or by citing to federal case law. While the petitioner must refer to federal law in state court explicitly, exhaustion is satisfied once the petitioner makes that explicit reference even if the petitioner relies predominantly on state law before the state courts.” Insyxiengmay, 403 F.3d at 668.
2. Procedural Default
A federal habeas claim is not exhausted if the petitioner still has the right to raise the claim “by any available procedure” in the state courts. 28 U.S.C. § 2254(c). “A habeas petitioner's claims may be precluded from federal review in either of two ways.” Date, 619 F.Supp.2d at 765. A claim may be procedurally defaulted in federal court if: (1) “it was actually raised in state court but found by that court to be defaulted on state procedural grounds,” or (2) “a state prisoner failed to present his federal claims to the state court, but returning to state court would be ‘futile' because the state courts' procedural rules, such as waiver or preclusion, would bar consideration of the previously unraised claims.” Id. (internal citations omitted). “Technical” exhaustion, and thus procedural default of the claim, occurs when a claim was not actually exhausted in state court, but the petitioner no longer has an available state remedy. Id. at 766. Federal courts are barred from reviewing claims that were decided on independent and adequate state law grounds. See Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). “This rule applies whether the state law ground is substantive or procedural.” Id. at 729.
If a petitioner failed to exhaust his claim and is now procedurally barred from returning to state court to present it, then his claim is procedurally defaulted and barred from federal habeas corpus review. See Coleman, 501 U.S. at 735 n.1. A petitioner can overcome procedural default, and thus bar of his claim, only by showing cause for the default and resulting prejudice or that a fundamental miscarriage of justice will result from the denial. Id. at 750. To establish cause, the petitioner must “show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). “An objective factor outside of a petitioner's control (e.g., ineffective assistance of counsel or a basis for the claim that was previously unavailable) could constitute cause.” Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011). If a petitioner succeeds in showing cause, he can meet the prejudice prong if he demonstrates “that the errors ... worked to his actual and substantial disadvantage, infecting his entire [proceeding] with errors of constitutional dimension.” Id. (internal quotations and citations omitted). Alternatively, to show a “fundamental miscarriage of justice,” a petitioner must demonstrate that “in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him.” Bousley v. United States, 523 U.S. 614, 623 (1998) (internal quotations and citations omitted). Under this standard, “actual innocence” means “factual innocence, not mere legal insufficiency.” Id.
II. Analysis
A. Ground One
1. Petitioner's Claim
In Ground One, Petitioner asserts the superior court violated his Fifth, Sixth, and Fourteenth Amendment rights when it amended his sentence through the minute entry instead of in open court with Petitioner present. (Doc. 1 at 7.) Petitioner further contends the resentencing entitled him to his of-right appeals and a court-appointed attorney. (Id.)
2. Application of Law
As an initial matter, the Court is unable to locate any evidence in the record that shows Petitioner presented this claim to the Arizona Court of Appeals. The record shows the appeals court denied relief in a memorandum decision filed on October 25, 2022. (Doc. 15-1 at 86-87.) In that order, the court stated, “Petitioner Christopher Lee Smith seeks review of the superior court's order denying his petition for post-conviction relief.” (Id. at 87.) While Petitioner's actual petition for review is not before the Court, the court of appeals' order only mentions review of the claims denied in Petitioner's fourth PCR petition. (Id.) That would not encompass Petitioner's Ground One claim that argues he should have been resentenced in open court with an attorney present. (Doc. 1 at 7.)
However, regardless of Ground One's status of exhaustion, matters of state sentencing are generally not cognizable on federal habeas review. Pursuant to 28 U.S.C. § 2254(a), this Court may issue a writ of habeas corpus to a state prisoner “only on the ground that he is in custody in violation of the Constitution, laws, or treaties of the United States.” In conducting habeas review, “a federal court is limited to deciding whether a conviction violated [federal law].” Estelle v. McGuire, 502 U.S. 62, 68 (1991). Alleged errors in the application of state law are not cognizable in federal habeas review. See Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996); Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (“We have stated many times that ‘federal habeas corpus relief does not lie for errors of state law.'”).
Petitioner contends his Fifth, Sixth, and Fourteenth Amendment rights were violated when the superior court amended his sentence through the minute entry instead of in open court with Petitioner present. (Doc. 1 at 7.) Petitioner cites to Magwood v. Patterson, 561 U.S. 320 (2010), Wentzell v. Neven, 674 F.3d 1124, 1127-28 (9th Cir. 2012), and Colbert v. Haynes, 954 F.3d 1232 (9th Cir. 2020) to support his assertions. (Doc. 1 at 7-8.) However, while Petitioner asserts the amending of his pre-sentence incarceration days through the nunc pro tunc order violated his Fifth, Sixth, and Fourteenth Amendment rights, as pleaded, this claim remains a state-law sentencing issue and not a federal one.
Petitioner states no other facts to demonstrate a specific violation of his Fifth, Sixth, or Fourteenth Amendment rights. Additionally, Petitioner fails to explain how the federal case law cited supports his assertions. Those cases all discuss an intervening state court judgment and a second or successive habeas petition, not a defendant's right to be present for the amending of pre-sentence incarceration credit. Petitioner may not “transform a state-law issue into a federal one merely by asserting a violation of due process.” Langford, 110 F.3d at 1389. Petitioner's claim remains a state-law issue in the instant Petition.
Accordingly, Petitioner's Ground One is not cognizable on federal habeas review. The Court recommends that the claim be denied.
B. Ground Two
1. Petitioner's Claim
In Ground Two, Petitioner contends the failure to instruct on an intervening cause was a fundamental error, thus violating Petitioner's due process rights. (Doc. 1 at 11.) Petitioner asserts he presented this ground on his direct appeal to the Arizona Court of Appeals. (Id.) However, Petitioner's direct appeal does not state this claim. (See Doc. 227, Exh. G.) Instead, on direct appeal, Petitioner only raised one issue: whether the trial court erred when it gave the “Effect of Intoxication Use” jury instruction. (Id.)
2. Application of Law
Petitioner's Ground Two claim has not been properly exhausted in the state courts. As discussed, supra, Petitioner was required to present this claim to the Arizona Court of Appeals for purposes of exhaustion. Swoopes, 196 F.3d at 1010. Petitioner presents this claim for the first time on federal habeas review. Petitioner was required to give the state courts the “opportunity to pass upon and correct” the alleged violation of Petitioner's constitutional rights. Duncan, 513 U.S. at 365. Because Arizona's procedural rules preclude Petitioner from returning to state court to properly exhaust this claim, Ground Two is technically exhausted but procedurally defaulted from this Court's review. See Date, 619 F.Supp.2d at 765-66; see also Moreno v. Gonzalez, 116 F.3d 409, 410 (9th Cir. 1997) (stating under Arizona's preclusion rule, petitioners generally are barred from raising any claim that was: (1) finally adjudicated on the merits in an appeal or in any previous PCR proceeding, or (2) waived at trial, on appeal, or in any previous collateral proceeding) (citing Ariz. R. Crim. P. 32.2(a)(2), (3)). Petitioner can overcome procedural default by showing cause for the default and resulting prejudice, or that a fundamental miscarriage of justice will occur absent consideration of the merits. See Coleman, 501 U.S. at 750.
To excuse the procedural default of his claim, Petitioner argues his appellate attorney was ineffective under Strickland v. Washington, 466 U.S. 668 (1984) for failing to raise this issue. (Doc. 24 at 13-14.) Petitioner further claims his state supreme court attorney falsely advised that by raising claims to the Arizona Supreme Court which were not raised in the lower court, the issues would be preserved for federal habeas review. (Id. at 15.) However, before an ineffective assistance of appellate counsel claim can be considered “cause” to excuse the procedural default of another constitutional claim, a petitioner must have fairly presented the ineffective assistance of appellate counsel claim in state courts as an independent claim. Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000) (“In other words, ineffective assistance adequate to establish cause for the procedural default of some other constitutional claim is itself an independent constitutional claim. And we held in Carrier that the principles of comity and federalism that underlie our longstanding exhaustion doctrine.. .require that constitutional claim, like others, to be first raised in state court.”) (emphasis in original).
There is no evidence in the record showing Petitioner properly raised and exhausted a claim of ineffective assistance of appellate counsel. In Petitioner's fourth and successive PCR notice, he briefly stated, “Additionally, I would like to explore.any possible Martinez v. Ryan (sic) claims I may have against all my appellate attorneys.” (Doc. 15-1 at 58.) This brief mention of “exploring any possible claim” against Petitioner's appellate attorneys does not satisfy fair presentment of the issue to the state courts, much less raise any specific ineffective assistance of appellate counsel claim. As such, Petitioner is unable to assert an ineffective assistance of appellate counsel claim here for the first time to establish cause to excuse the procedural default. Edwards, 529 U.S. at 451-52. The Court concludes Petitioner has failed to establish cause and prejudice to excuse the default and has not shown that a fundamental miscarriage of justice will result absent consideration of the merits.
Accordingly, Petitioner has not made the necessary showings to overcome the procedural bar and Ground Two is not reviewable by this Court.
C. Ground Three
1. Petitioner's Claim
In Ground Three, Petitioner contends it was error to give the “Effect of Alcohol Use” instruction because it shifted the burden of proof to Petitioner and confused the jury. (Doc. 1 at 12.) Petitioner presented this issue on direct appeal (Doc. 22-7, Exh. G) and the appeals court denied the claim (Doc. 22-7, Exh. I). Petitioner filed a motion for reconsideration in the Arizona Supreme Court and that court denied review on September 25, 2012. (Id.) Petitioner properly exhausted this claim in the state courts. As such, the Court will address it on the merits.
2. Applicable Law
Under the AEDPA, Petitioner must show that the state court's adjudication of the claim either “(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). This is a “highly deferential standard for evaluating state-court rulings, which demands that state court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (internal quotations and citation omitted).
3. Application of Law
The Arizona Court of Appeals' decision was not contrary to clearly established federal law. That court analyzed Petitioner's claim primarily under Arizona state law. The appeals court stated in part:
Based on A.R.S. § 13-503, we conclude that the AU instruction properly stated the law and was applicable to the facts. We further conclude that the trial court properly rejected Smith's proffered jury instruction because it did not adequately state the law for the jury. A.R.S. § 13-503 addresses the effect of alcohol use on criminal acts as well as culpable mental states, whereas Smith's requested instruction omitted any discussion of the effects of alcohol use on potential criminal acts.We conclude that the trial court's jury instruction properly reflected the law. The jury was instructed on the requirement of a voluntary act and also on the effect of voluntary alcohol consumption. There was no burden shifting based on the AU instruction because the jurors were free to accept Smith's defense that his actions were involuntary and the result of sleep-driving, and the burden of proving a voluntary act remained on the State.(Doc. 22-7 at 40, 44.) The trial court gave the following alcohol use instruction to the jury:
It is not a defense to any criminal act if the criminal acts were committed due to temporary intoxication resulting from the voluntary consumption of alcohol.(Doc. 22-7 at 37.) The jury instruction was based on A.R.S. § 13-503 (2010), which states: “Temporary intoxication resulting from the voluntary ingestion, consumption, inhalation or injection of alcohol.is not a defense for any criminal act or requisite state of mind.” Petitioner offered the trial court the following alternative instruction:
A defendant who becomes intoxicated due to involuntary consumption of alcohol cannot use his/her intoxication as a defense to the requisite state of mind. This means defendant cannot claim that he failed to act intentionally, knowingly, recklessly or negligently because of his voluntary consumption of alcohol.(Doc. 22-7 at 38.) In addition to the alcohol use instruction, the trial court gave a voluntary act instruction, based on A.R.S. § 13-201. That instruction stated:
Before you may convict the defendant of the charged crime,
you must find that the state proved beyond a reasonable doubt that defendant committed a voluntary act. A voluntary act means a bodily movement performed consciously and as a result of effort and determination. You must consider all the evidence in deciding whether the defendant committed the act voluntarily.(Doc. 22-6 at 116-17.)
The appeals court also addressed Petitioner's claim under federal law. First, it analyzed Sandstrom v. Montana, 442 U.S. 510 (1979). The appeals court found Sandstrom did not apply because the alcohol use instruction in Petitioner's case did not create a mandatory presumption. (Doc. 22-7 at 41.) Next, that court analyzed the applicability of Montana v. Egelhoff, 518 U.S. 37, 43 (1996) (plurality opinion). The appeals court stated:
The Supreme Court plurality concluded that “disallowing consideration of voluntary intoxication when a defendant's state of mind is at issue” is in harmony with the Due Process Clause. Additionally, the Egelhoff Court concluded that Sandstrom's presumption analysis was inapplicable because the trial judge gave the jury an instruction describing the state's burden of having to prove all elements beyond a reasonable doubt. Moreover, the jury in Egelhoff was instructed on the required mental states for finding criminal culpability. Similarly, Smith's jurors were instructed on not only the mens rea requirements, but also the necessity of a voluntary act for finding Smith criminally liable and the State's burden of proving a voluntary act and all elements of each offense.(Doc. 22-7 at 42.)
In his Petition, Petitioner does not assert how the court of appeals' decision was contrary to clearly established federal law or resulted in a decision that was based on an unreasonable determination of the facts. Instead, Petitioner reasserts the same claim he presented to the appeals court. (Doc. 1 at 12-13.) Petitioner maintains that the “challenged instruction deprived [] Petitioner of the presumption of innocence and the state's burden to prove every element of the crime.” (Id. at 13.) Petitioner does not assert a specific violation of any state or federal constitutional right.
A federal court on habeas review must defer to a state court's construction of state law questions such as whether a jury instruction accurately stated state law. Engle v. Isaac, 456 U.S. 107, 119-21, n. 21 (1982) (stating that a challenge to the correctness of selfdefense instruction under state law provides no basis for federal habeas relief). A challenged jury instruction violates the federal constitution only if there is a “reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Boyde v. California, 494 U.S. 370, 380 (1990). This issue is whether, when read in the context of the jury instructions as a whole and the trial record, the challenged instruction is sufficiently erroneous to violate the Fourteenth Amendment. Prantil v. State of Cal., 843 F.2d 314, 317 (9th Cir. 1988) (stating that to constitute a ground for habeas relief, the erroneous jury instructions must have “so infected the entire trial that the resulting conviction violates due process.”) (internal quotation and citation omitted). Absent contrary evidence, the Court must assume that the jury followed the instructions. Weeks v. Angelone, 528 U.S. 225, 234 (2000). “To warrant habeas relief, the instructions cannot be merely undesirable, erroneous, or even universally condemned, but must violate [due process].” Prantil, 843 F.2d at 317 (internal quotations and citation omitted).
When taken in the context of the jury instructions as a whole and the trial record, the Court concludes Petitioner has not shown that the challenged alcohol use instruction infected the entire trial that his conviction violates due process. First, to the extent that Petitioner's challenges to the jury instructions rest on state law, such claims are not cognizable on federal habeas review. Estelle, 502 U.S. at 67-68. However, to the extent Petitioner is arguing a due process challenge to the jury instructions, this too, fails. The alcohol use jury instruction comported with Arizona law. See A.R.S. § 13-503.
Furthermore, the Court observes that the voluntary act and alcohol use jury instructions were not given to the jury in a vacuum. The trial court also instructed the jury on its duty, that lawyers' comments are not evidence, the presumption of innocence, the State's burden of proof, expert witnesses, second degree murder and aggravated assault elements, lesser included charges of manslaughter and negligent homicide elements, and the mental states of intentionally, knowingly, and recklessly. (Doc. 22-6 at 114-24.) From this record, the jury was informed that the burden of proof remained with the State.
Finally, the Court emphasizes that the jury was instructed on the State's burden to prove Defendant committed a voluntary act. As the appeals court found, “[t]he jury was instructed on the requirement of a voluntary act and also on the effect of voluntary alcohol consumption. There was no burden shifting based on the AU instruction because the jurors were free to accept Smith's defense that his actions were involuntary and the result of sleepdriving, and the burden of proving a voluntary act remained on the State.” (Doc. 22-7 at 44.) The Court agrees with that conclusion. The Court assumes the jury followed all of the instructions it was given, as no evidence to the contrary has been presented. Weeks, 528 U.S. at 234.
After considering all the instructions given to the jury and the trial record as a whole, the Court does not find the alcohol use instruction violated Petitioner's rights. Petitioner fails to direct the Court to any evidence in the record demonstrating that the court of appeals' decision was contrary to federal law or based on an unreasonable determination of the facts. Accordingly, the Court recommends that Ground Three be denied.
D. Ground Four
1. Petitioner's Claim
In Ground Four, Petitioner contends the “instruction on Second Degree Murder in [absence] of clarification denied Petitioner of Due Process of law.” (Doc. 1 at 15.) Petitioner specifically asserts that the jury was “never instructed that it must find beyond a reasonable doubt that the defendant acted with a mental state of recklessness manifesting his extreme indifference to human life.” (Id.) Petitioner further argues that while “later instructed that the level of recklessness for murder was greater than that for manslaughter how things appeared or manifested was not in dispute; whether [] Petitioner was acting voluntary was, thus giving the jury direction that extreme indifference recklessness is presumed.” (Id.)
In his Petition, Petitioner claims he raised this issue on direct appeal. (Doc. 1 at 15.) However, as discussed in Ground Two, supra, Petitioner only raised one issue on direct appeal involving the effect of alcohol use jury instruction. Against this backdrop, the Court begins its analysis.
Petitioner asserts he raised this ground to the Arizona Supreme Court in his petition for review. (Id. at 2-3.) While that document is not in the record before the Court, for purposes of exhaustion, Petitioner was required to present this ground to the Arizona Court of Appeals. See Date, 619 F.Supp.2d at 762. “Arizona has declared that its ‘complete round' [of appellate review] does not include discretionary review before the Arizona Supreme Court.” Swoopes, 196 F.3d at 1010; Casey v. Moore, 386 F.3d 896, 918 (9th Cir. 2004) (“Because we conclude that [petitioner] 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.”). Thus, Petitioner has not properly presented this claim in the state courts.
2. Application of Law
Petitioner's Ground Four claim has not been properly exhausted in the state courts. For purposes of exhaustion, Petitioner was required to present his Ground Four claim to the Arizona Court of Appeals. Date, 619 F.Supp.2d at 762. Petitioner did not raise this issue on direct appeal (see Doc. 22-7, Exh. G) and did not present it in any petition for review filed in the appeals court, as is evidenced by that court's April 4, 2017 order (Doc. 22-8 at 26-27). That order stated:
A jury convicted Smith of one count of second degree murder and three counts of aggravated assault. After his convictions and sentences were affirmed on direct appeal, Smith filed a timely petition for post-conviction relief claiming ineffective assistance of trial counsel. The superior court summarily dismissed the petition for failure to state a colorable claim for relief. In October 2014, this court dismissed as untimely Smith's petition seeking review of that dismissal.
In November 2014, Smith filed a second notice of postconviction relief seeking to raise a claim of significant change in the law based on [Spencer, 235 Ariz. 496]. The superior court dismissed the notice for failure to show how the change
in the law would apply to his case. The record does not indicate that Smith sought review of that ruling by this court.
In February 2015, Smith filed a third notice of post-conviction relief in which he again sought to raise a claim of significant change in the law based on Spencer. Finding the claim to be identical to the claim raised and rejected in his second notice of post-conviction relief, the superior court summarily dismissed the notice. This petition for review followed ...The sole issue raised in Smith's third notice, which is the subject of review here, is that Spencer constituted a significant chance in the law. Because that claim is the same claim Smith raised in his second notice of post-conviction relief, the superior court properly did not err in summarily dismissing the third notice.(Doc. 22-8 at 26-27) (internal citation omitted).
The record is absent any showing that Petitioner presented his Ground Four claim in the appeals court, much less that the court of appeals ruled on the claim. Petitioner was required to give the state courts the “opportunity to pass upon and correct” the alleged violation of Petitioner's constitutional rights. Duncan, 513 U.S. at 365. Having never presented this claim in the state courts, Petitioner's Ground Four has not been properly exhausted. See Baldwin, 541 U.S. at 29; O'Sullivan, 526 U.S. at 845; Date, 619 F.Supp.2d at 762. Because Petitioner may no longer return to the state courts to properly exhaust this claim, it is technically exhausted but procedurally defaulted. Date, 619 F.Supp.2d at 766; Moreno, 116 F.3d at 410.
To excuse the procedural default of his claim, Petitioner asserts the same argument he presented in Ground Two, arguing his appellate attorney was ineffective for failing to raise this issue. (Doc. 24 at 13-14.) This argument fails for the same reasons as discussed in Ground Two, supra. Because Petitioner failed to properly exhaust any claim of ineffective assistance of appellate counsel in the state courts, he is unable to assert one here to establish cause to excuse the procedural default of this claim. Edwards, 529 U.S. at 45152. The Court concludes Petitioner has failed to establish cause and prejudice to excuse the default and has not shown that a fundamental miscarriage of justice will result absent consideration of the merits.
Accordingly, Petitioner has not made the necessary showings to overcome the procedural bar and Ground Four is not reviewable by this Court.
E. Ground Five
1. Petitioner's Claim
In Ground Five, Petitioner asserts his trial counsel failed to properly interview witnesses in violation of his Sixth Amendment right to the effective assistance of counsel. (Doc. 1 at 21.) Petitioner specifically contends his trial attorneys failed to interview Petitioner's family members about sleeping disorders he suffered from and failed to conduct effective cross-examination of “any witnesses who testif[ied] on the State's behalf.” (Id.) Petitioner claims he presented this claim to the Arizona Court of Appeals and the Arizona Supreme Court. (Id. at 22.)
The record shows Petitioner presented this claim on his first petition for postconviction relief. (Doc. 22-7 at 56-57.) After Petitioner's first PCR petition was summarily dismissed by the trial court, Petitioner filed an untimely petition for review in the Arizona Court of Appeals. While that specific petition is not in the record before the Court, the court of appeals dismissed Petitioner's petition for review as untimely. (Doc. 22-7 at 126.) Based on this record, the Court begins its analysis.
2. Application of Law
Petitioner's Ground Five claim is procedurally defaulted in the instant proceeding. For purposes of exhaustion, Petitioner was required to “fairly present” this claim in the Arizona Court of Appeals to allow it the “opportunity to rule upon the merits” of his federal claims. Date, 619 F.Supp.2d at 762 (“To exhaust state remedies, a petitioner must afford the state courts the opportunity to rule upon the merits of his federal claims by ‘fairly presenting' them to the state's ‘highest' court in a procedurally appropriate manner.”) (quoting Castille, 489 U.S. at 349 and Baldwin, 541 U.S. at 29). By raising this claim on an untimely petition for review in the court of appeals, Petitioner failed to give the appeals court the opportunity to rule upon the merits of his federal claim. Because Petitioner may no longer return to state court to properly exhaust this claim, Ground Five is technically exhausted but procedurally defaulted. See Date, 619 F.Supp.2d at 766; Moreno, 116 F.3d at 410.
To excuse the procedural default of his claim, Petitioner argues the state courts erred by not granting his extension of time requests to file his petition for review and thereby erred when dismissing his petition for review as untimely. (Doc. 24 at 15-17.) The record shows Petitioner filed a notice of petition for review in the appeals court on November 11, 2013. (Doc. 22-7 at 118.) Petitioner then filed his “Motion for Extension of Time in which to File for Petition for Review (Rule 32) Pro Per” in the appeals court on January 10, 2014. (Doc. 22-7, Exh. P.) However, at the time Petitioner filed his motion, Ariz. R. Crim. P. 32.9(c) mandated that “[m]otions for extensions of time to file petitions or cross-petitions shall be filed in and ruled upon by the trial court.” Thus, Petitioner filed the motion for extension of time in the wrong court.
The record further shows, on January 15, 2014, the Arizona Court of Appeals forwarded Petitioner's motion for extension of time to the superior court. (Doc. 22-7 at 124.) However, before the trial court ruled on that motion, Petitioner filed his petition for review in the appeals court on February 3, 2014. That court then dismissed the petition as untimely on February 11, 2014. (Id. at 126.) Even assuming the petition for review raised the Ground Five claim, the petition was untimely, and the appeals court dismissed it on procedural grounds. Petitioner therefore failed to present this claim “in each appropriate state court.” Baldwin, 541 U.S. at 29.
Similar to the discussion in Footnote 3, supra, Petitioner's petition for review is not in the record before the Court. However, Petitioner concedes in his Reply (Doc. 24) that before the state courts ruled on his motion for extension of time, he filed his petition for review in the court of appeals (id. at 17). This is assumingly confirmed by a lack of ruling from the superior court in the record and the Arizona Court of Appeals' decision dismissing Petitioner's petition for review as untimely (Doc. 22-7 at 126).
Based on this record, Petitioner is unable to show that some objective factor outside of his control impeded his efforts to comply with the State's procedural rule. See Murray, 477 U.S. at 488; Cooper, 641 F.3d at 327. The procedural rule at issue is Rule 32.16(a)(1) of the Arizona Rules of Criminal Procedure, which states, “[n]o later than 30 days after the entry of the trial court's final decision on a petition or a motion for rehearing, or the dismissal of a notice, an aggrieved party may petition the appropriate appellate court for review of the decision.” Petitioner's first PCR petition was denied on October 21, 2013. (Doc. 22-7, Exh. N.) Petitioner did not file his petition for review in the appeals court until February 3, 2014, more than three months later. (Doc. 22-7 at 126.) Petitioner has failed to show an objective factor outside of his control that impeded his ability to (1) file his motion for extension of time in the appropriate state court, (2) wait for the superior court to rule on that motion, and (3) file his petition for review during the thirty-day statutory period.
The Court concludes Petitioner has failed to establish cause and prejudice to excuse the default and has not shown that a fundamental miscarriage of justice will result absent consideration of the merits.
Accordingly, Petitioner's Ground Five is procedurally defaulted from federal habeas review.
F. Ground Six
1. Petitioner's Claim
In Ground Six, Petitioner asserts his Sixth and Fourteenth Amendment rights were violated when trial counsel failed to have the defense expert, Dr. Gaither, interview Petitioner personally. (Doc. 1 at 22.) Petitioner contends counsel's failure to have Dr. Gaither interview Petitioner “was most damaging to the trial as Petitioner's entire defense was [predicated] on whether or not [] Petitioner was in the midst of a sleep episode when the driving occurred.” (Id.) Petitioner argues Dr. Gaither's inability to “correlate Petitioner's medical condition with his expert opinions” undermined Petitioner's entire defense. (Id.)
The record shows Petitioner presented this claim on his first petition for postconviction relief. (Doc. 22-7 at 57-60.) Petitioner claims he presented this issue in his first petition for review to the Arizona Court of Appeals (Doc. 1 at 23), however, that petition was dismissed as untimely (Doc. 22-7 at 126).
2. Application of Law
A similar analysis in Ground Five, supra, applies here. Petitioner's Ground Six claim was not properly exhausted by presentation in Petitioner's untimely petition for review in the court of appeals. Baldwin, 541 U.S. at 29. This claim is technically exhausted but procedurally defaulted, as Petitioner may no longer return to the state courts to properly exhaust the claim. See Date, 619 F.Supp.2d at 766; Moreno, 116 F.3d at 410.
To excuse the procedural default, Petitioner presents the same argument as he did in Ground Five, arguing the state courts erred by not granting his extension of time requests to file his petition for review and thereby erred when dismissing his petition for review as untimely. (Doc. 24 at 15-17.) As discussed, supra, Petitioner fails to establish some objective external factor that impeded his ability to comply with the State's procedural rule of filing a petition for review in the appropriate appellate court within thirty days after the entry of the trial court's final decision. See Murray, 477 U.S. at 488 (outside objective factor); Cooper, 641 F.3d at 327 (same); Ariz. R. Crim. P 32.16(a)(1) (thirty-day statutory period).
The Court concludes Petitioner has failed to establish cause and prejudice to excuse the default and has not shown that a fundamental miscarriage of justice will result absent consideration of the merits.
Accordingly, Petitioner's Ground Six is procedurally defaulted from this Court's review.
G. Ground Seven
1. Petitioner's Claim
In Ground Seven, Petitioner contends the admission of a prior misdemeanor driving under the influence (“DUI”) conviction violated his due process rights as it was not sufficiently probative of knowledge to outweigh unfair prejudice. (Doc. 1 at 23.) Petitioner asserts he was “denied his right to effective assistance of counsel on this issue as well as the [trial] court should not have allowed its admission.” (Id.) Petitioner further argues trial counsel's stipulation to the misdemeanor conviction prejudiced him “as the State was then able to argue in opening statements that [] Petitioner had a history of driving under the influence.” (Id.) Petitioner finally argues his appellate attorney was ineffective for failing to raise this issue on direct appeal. (Id.)
Petitioner appears to raise three separate arguments in Ground Seven. First, he argues the admission of the prior misdemeanor DUI violated his due process rights. (Doc. 1 at 23.) This claim was not raised in Petitioner's direct appeal or various petitions for PCR. Second, Petitioner argues trial counsel was ineffective for stipulating to the misdemeanor conviction. (Id.) This claim was raised on Petitioner's first PCR petition. (Doc. 22-7 at 6061.) Lastly, Petitioner argues appellate counsel was ineffective for failing to raise this issue. (Doc. 1 at 24.) This specific claim has not been presented in the state courts. Against this backdrop, the Court begins its analysis.
2. Application of Law
Petitioner's Ground Seven is procedurally defaulted in the instant proceeding. To the extent Petitioner argues the admission of his prior misdemeanor DUI conviction violated his due process rights, this claim was not properly presented in the state courts. Petitioner was required to “fairly present” his claim “in each appropriate state court.” Baldwin, 541 U.S. at 29. By failing to raise this issue on direct appeal or in his first PCR petition, Petitioner did not give the state courts the opportunity to rule upon the merits of his federal claim. Further, any argument that this specific claim was raised on a subsequent petition for review to the appellate or state supreme court, fails. Presentation of this claim for the first time in a discretionary petition for review does not satisfy exhaustion. Casey, 386 F.3d at 918.
Petitioner's next claim in Ground Seven alleges trial counsel was ineffective for stipulating to the admission of Petitioner's prior misdemeanor conviction. (Doc. 1 at 23.) Petitioner raised this issue in his first PCR petition and allegedly in his petition for review to the court of appeals. However, as discussed in Grounds Five and Six, supra, that petition was dismissed as untimely. Thus, the claim has not been properly exhausted. Petitioner's last claim in Ground Seven asserts appellate counsel was ineffective for “not raising this issue.” (Doc. 1 at 24.) Petitioner failed to present this specific claim in any state court. Therefore, the claim has not been properly exhausted. Because Petitioner may no longer return to the state courts to properly exhaust any claim in Ground Seven, it is technically exhausted but procedurally defaulted. Date, 619 F.Supp.2d at 766; Moreno, 116 F.3d at 410.
To excuse the procedural default of Ground Seven, Petitioner again argues the trial court erred by not granting him an extension of time to file his petition for review and the appellate court erred by dismissing his petition for review as untimely. (Doc. 24 at 15-17.) However, this argument fails for the same reasons as discussed in Grounds Five and Six, supra. To the extent Petitioner also argues the procedural default should be excused due to his appellate attorney's failure to raise various issues on direct appeal, this argument is meritless, as discussed in Grounds Two and Four, supra. The Court concludes Petitioner has failed to establish cause and prejudice to excuse the default and has not shown that a fundamental miscarriage of justice will result absent consideration of the merits.
Accordingly, Petitioner's Ground Seven is procedurally defaulted from this Court's review.
H. Ground Eight
1. Petitioner's Claim
In Ground Eight, Petitioner asserts the trial court violated his Fifth, Sixth, and Fourteenth Amendment rights when it “failed to sentence him within the statutory provisions set forth in A.R.S. § 13-708(A) now A.R.S. [§] 13-711 and Ariz. R. Crim. P. 26.” (Doc. 1 at 25.) Petitioner argues the trial court “failed to articulate the reasons for running some sentences concurrent while others consecutive when they all stemmed from one incident.” (Id.)
Petitioner raised this claim on his fourth PCR proceeding. (Doc. 15, Exh. C.) The superior court denied the claim and stated:
Defendant complains that this [c]ourt never provided reasons for running his murder sentence consecutively to the other sentences, thereby violating A.R.S. § 13-711 (2019). This argument rests upon a faulty premise. At the time of Defendant's offense, the applicable statute was A.R.S. § 13-708(A), which provided: “Except as otherwise provided by law, if multiple sentences of imprisonment are imposed on a person at the same time, the sentence or sentences imposed by the court shall run consecutively unless the court expressly directs otherwise, in which case the court shall set forth on the record the reason for its sentence.” In other words, consecutive sentences are the default if the [c]ourt fails to specify whether sentences run concurrently or consecutively. Therefore, the [c]ourt was not required to articulate reasons for running the murder sentence consecutively.(Doc. 15-1 at 69) (internal citations omitted). Petitioner's petition for review following the superior court's denial of this claim is not in the record before the Court. However, the Arizona Court of Appeals' October 25, 2022 order stated:
Petitioner Christopher Lee Smith seeks review of the superior court's order denying his petition for post-conviction relief, filed pursuant to Arizona Rule of Criminal Procedure 32.1. This is Smith's fourth petition.. .This court has reviewed the record in this matter, the order denying the petition for postconviction relief and the petition for review. This court finds the petitioner has not established error. This court grants review but denies relief.(Doc. 15-1 at 87.)
Even assuming Petitioner's Ground Eight claim was raised in his petition for review to the Arizona Court of Appeals, the claim is not cognizable on federal habeas review.
2. Application of Law
A similar analysis as discussed in Ground One, supra, applies here. In conducting habeas review, “a federal court is limited to deciding whether a conviction violated [federal law].” Estelle, 502 U.S. at 68. Alleged errors in the application of state law are not cognizable on federal habeas review. Langford, 110 F.3d at 1389; see also Swarthout, 562 U.S. at 219 (“We have stated many times that ‘federal habeas corpus relief does not lie for errors of state law.'”); Estelle, 502 U.S. at 63 (“[I]t is not the providence of a federal habeas court to reexamine state-court determinations on state-law questions.”).
Petitioner asserts the trial court failed to sentence him in accordance with A.R.S. § 13-708(A) when it failed to articulate the reasons for running his sentences consecutively and concurrently. (Doc. 1 at 25.) However, while Petitioner asserts the failure violated his rights under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution, as pleaded, this claim remains a state-law sentencing issue and not a federal one. See Watts v. Bonneville, 879 F.2d 685, 687 (9th Cir. 1989) (holding the sentencing error claim under the state penal code was not cognizable on federal habeas review). Petitioner states no other facts to demonstrate a specific violation of his Fifth, Sixth, and Fourteenth Amendment rights. (Id.) As stated supra, Petitioner may not transform a statelaw issue into a federal one merely by asserting a violation of due process, as he does here. Langford, 110 F.3d at 1389.
Accordingly, Petitioner's Ground Eight does not state a cognizable habeas claim. The Court recommends that the claim be denied.
CONCLUSION
The Court concludes Petitioner is not entitled to relief on any ground raised in his habeas Petition. The record is sufficiently developed, and the Court does not find that an evidentiary hearing is necessary for resolution of this matter. See Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 2011). Accordingly, the Court will recommend that the Petition and Petitioner's various attendant requests (e.g., appointment of counsel) be denied.
Based on the foregoing, IT IS THEREFORE RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (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 because Petitioner has not shown jurists of reason would not find the procedural ruling debatable, and because Petitioner has not made a substantial showing of the denial of a constitutional right.
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 Rule 4(a)(1), 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 Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b) and 72. Thereafter, the parties have fourteen days within which to file a response to the objections.
Failure to timely file 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 timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed.R.Civ.P. 72.