Opinion
CV 19-05009 PHX ROS (CDB)
04-15-2021
Tony Brown, Petitioner, v. David Shinn, Attorney General of the State of Arizona, Respondents.
TO THE HONORABLE ROSLYN O. SILVER:
REPORT AND RECOMMENDATION
Camille D. Bibles, United States Magistrate Judge.
Petitioner Tony Brown, proceeding pro se, filed a petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on August 21, 2019, and filed an amended petition (ECF No. 7) on January 31, 2020. Respondents answered the Amended Petition on April 20, 2020 (ECF No. 14), and Brown filed a reply on July 17, 2020 (ECF No. 17). Brown challenges his convictions, at the conclusion of a jury trial, on one count of aggravated assault and one count of tampering with physical evidence.
I. Background
The following background is taken from the Arizona Court of Appeals' decision denying relief in Brown's appeal:
NA was standing in line at a Circle K. Brown came into the building and walked directly to the counter to purchase a bus pass. NA commented to Brown that he needed to wait in line, and a verbal altercation ensued between the two men. After Brown purchased his bus pass he waited outside for NA. When NA left the building the two re-engaged in a verbal altercation.
The altercation then turned physical, and both men threw punches at each other. During this altercation Brown pulled out a gun, pointed it at NA, and pulled the trigger. The gun jammed and a bullet was not discharged from the weapon. After the gun jammed it was then either handed off to, or taken by, Brown's acquaintance, JT.
NA ran to get help at a nearby construction site where an off-duty police officer was monitoring traffic. JT ran from the scene with the gun and Brown walked away and then sat down at a bus stop. Both JT and Brown were apprehended by police immediately after the incident. JT was found with a jammed gun.
Brown was charged with aggravated assault, a class three felony; misconduct involving weapons, a class four felony; and tampering with physical evidence, a class six felony. Prior to trial, the misconduct involving weapons charge was dismissed. Following a four-day jury trial, Brown was found guilty on both remaining charges and sentenced to an aggravated concurrent term of 15 years' imprisonment for aggravated assault and 3.75 years for tampering with evidence. . . .State v. Brown, 2017 WL 2544832, at *1 (Ariz.Ct.App. June 13, 2017). Brown did not testify at his trial, but his codefendant “JT” did testify at the trial. (ECF No. 14-1 at 107). The jury deliberated for just over an hour before reaching its verdict. (ECF No. 14-1 at 10). On appeal Brown asserted the prosecutor engaged in misconduct by impugning both the proffered defense and defense counsel during closing arguments. See Brown, 2017 WL 2544832, at *1. He also alleged he was denied eight days of credit for presentence incarceration. Id. at *2. The state appellate court denied relief on the claim of prosecutorial misconduct, but found the claim regarding presentence incarceration meritorious. Id.
The jury found the following aggravating circumstances: the offense caused physical, emotional, or financial harm to the victim; the offense involved the infliction or threatened infliction of serious physical injury; the offense involved the presence of an accomplice; and Brown was on probation at the time of the offense. (ECF No. 14-1 at 12). At sentencing the court found Brown had two prior felony convictions, i.e., for possession of drug paraphernalia and possession of narcotic drugs, with both convictions occurring in 2002. (ECF No. 14-1 at 18).
Brown, then proceeding pro se, sought review in the Arizona Supreme Court, supplementing his petition for review with an affidavit from Mr. Thorpe (“JT”) “presenting the fact that the prosecutor and police in this case suborned perjury.” (ECF No. 14-1 at 79-83, 85-91). The Arizona Supreme Court summarily denied review on January 4, 2018. (ECF No. 14-1 at 93).
Brown filed a timely state action for post-conviction relief pursuant to Rule 32 of the Arizona Rules of Criminal Procedure, and was appointed counsel. (ECF No. 14-1 at 99). In his Rule 32 action Brown maintained his codefendant “Mr. Thorpe has now come forward and recanted his testimony, ” providing an affidavit in which Mr. Thorpe averred he had perjured himself at trial in return for leniency in sentencing for his participation in the crime. (ECF No. 14-1 at 105). Brown maintained his codefendant's testimony was critical to his conviction, arguing that only Mr. Thorpe's testimony established Brown pointed a gun at the victim and pulled the trigger; Brown alleged the affidavit was newly discovered evidence warranting an evidentiary hearing and state habeas relief. (ECF No. 14-1 at 105, 110, 113-14). In his pro se Rule 32 petition Brown cited exclusively to state law, the state rules of criminal procedure, and state court legal opinions. (ECF No. 1-1 at 45-49).
In response to the portion of Mr. Thorpe's affidavit swearing Brown never touched the weapon and that the weapon was possessed by Mr. Thorpe at all times during the crime, the State noted the “victim, as well as Mr. Thorpe, testified that Brown pushed a handgun against his neck.” (ECF No. 14-1 at 131). The State referenced the testimony of a witness and the victim that Brown handed the gun to Mr. Thorpe after the gun jammed. (ECF No. 14-1 at 133). The State also noted the victim also testified he “noticed that Thorpe appeared surprised at the appearance of the gun and Brown's use of it.” (Id.).
The State further noted that, during defense counsel's cross-examination of Mr. Thorpe:
In an order issued October 15, 2018, the state habeas trial court concluded: “Thorpe's claim that Defendant did not use a gun during the assault is patently not credible, and is contradicted by both physical evidence and the testimony of other witnesses.” (ECF No. 14-1 at 146). “In sum, an evidentiary hearing is not warranted because Mr. Thorpe's recantation is not credible. The physical evidence and witness testimony fully supports a guilty verdict. Even if Thorpe had testified consistent with his affidavit, it is highly improbable that it would have changed the verdict.” (Id.).
Brown sought review in the Arizona Court of Appeals, which granted review but summarily denied relief. See State v. Brown, 2019 WL 1500626, at *1 (Ariz.Ct.App. Apr. 4, 2019). Brown did not cite to any federal constitutional right or any federal legal opinion in his petition for review or in his reply in support of his petition for review.
In his § 2254 petition Brown asserts he has newly discovered evidence (Mr. Thorpe's affidavit) implicating the validity of his conviction and requiring an evidentiary hearing. (ECF No. 1 at 6). In his second claim for relief Brown contends the prosecutor committed misconduct by suborning perjury, i.e., the prosecutor presented Mr. Thorpe's testimony knowing it was false. (ECF No. 1 at 7). In his § 2254 petition Brown states: “Violation of judicial precedent and the Arizona Rules of Court shall be Ground Three, ” arguing the state habeas trial court violated state rules of criminal procedure by “discounting the validity of petitioner's newly-discovered evidence without conducting an evidentiary hearing.” (ECF No. 1 at 8). In his fourth claim for relief Brown asserts: “It was illogical to deny eyewitnesses testimony now, but assume his credibility in previous testimony, ” arguing the failure to conduct a hearing “amounts to a miscarriage of justice, ” citing opinions from the Arizona state courts. (ECF No. 1 at 9). In his petition Brown does not cite to any specific federal constitutional right, but instead cites state court opinions and the state rules of criminal procedure.
Respondents assert Brown failed to properly exhaust his federal habeas claims in the state courts. (ECF No. 14 at 9-11). Respondents construe Brown's claims as asserting a violation of his due process rights; however, Brown does not mention the United States Constitution or the Fifth or Fourteenth Amendments in his federal habeas petition.
II. Analysis
A. Exhaustion and procedural default
Absent specific circumstances, the Court may only grant federal habeas relief on the merits of a claim which has been “properly” exhausted in the state courts. See O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). To properly exhaust a federal habeas claim, the petitioner must afford the state courts the opportunity to rule upon the merits of the claim by “fairly presenting” the claim to the state's “highest” court in a procedurally correct manner. E.g., Castille v. Peoples, 489 U.S. 346, 351 (1989); Rose v. Palmateer, 395 F.3d 1108, 1110 (9th Cir. 2005). In noncapital cases arising in Arizona, the “highest court” test is satisfied if the habeas petitioner presented his claim to the Arizona Court of Appeals. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Date v. Schriro, 619 F.Supp.2d 736, 762-63 (D. Ariz. 2008).
To fairly present a claim in the state courts, thereby exhausting the claim, the petitioner must present to the state courts the “substantial equivalent” of the claim presented in federal court. Picard v. Connor, 404 U.S. 270, 278 (1971); Libberton v. Ryan, 583 F.3d 1147, 1164 (9th Cir. 2009). Full and fair presentation requires a petitioner to present the substance of his claim to the state courts, including a reference to the operative federal constitutional guarantee relied on by the petitioner and a statement the facts supporting the claim. See Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009); Lopez v. Schriro, 491 F.3d 1029, 1040 (9th Cir. 2007).
[The federal courts] recognize two types of procedural bars: express and implied. An express procedural bar occurs when the petitioner has presented his claim to the state courts and the state courts have relied on a state procedural rule to deny or dismiss the claim. An implied procedural bar, on the other hand, occurs when the petitioner has failed to fairly present his claims to the highest state court and would now be barred by a state procedural rule from doing so.Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010).
A petitioner has not exhausted a federal habeas claim if he still has the right to raise the claim “by any available procedure” in the state courts. 28 U.S.C. § 2254(c). Accordingly, the exhaustion requirement is satisfied if the petitioner is procedurally barred from pursuing a previously un-presented claim in the state's “highest” court. See Woodford v. Ngo, 548 U.S. 81, 92-93 (2006). Because the Arizona Rules of Criminal Procedure regarding timeliness, waiver, and the preclusion of claims bar Brown from returning to the state courts to exhaust any unexhausted federal habeas claim, he has exhausted but procedurally defaulted any claim not previously properly presented to the Arizona Court of Appeals. See Insyxiengmay v. Morgan, 403 F.3d 657, 665 (9th Cir. 2005); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002).
If a prisoner has procedurally defaulted a claim in the state courts, he is not entitled to a review of the merits of the claim in a federal habeas action absent a showing of both cause and prejudice. E.g., Ellis v. Armenakis, 222 F.3d 627, 632 (9th Cir. 2000). The Court may also consider the merits of a procedurally defaulted claim if the failure to consider the merits of the claim will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750; Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011). “Cause” is a legitimate excuse for the petitioner's procedural default of the claim, i.e., an objective factor outside of his control, and “prejudice” is actual harm resulting from the alleged constitutional violation. Cooper, 641 F.3d at 327. To establish prejudice, the petitioner must show that the alleged error “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Id. It is the petitioner's burden to establish both cause and prejudice with regard to their procedural default of a federal habeas claim in the state courts. Correll v. Stewart, 137 F.3d 1404, 1415 (9th Cir. 1998).
A petitioner meets the “fundamental miscarriage of justice” exception by “establish[ing] that under the probative evidence he has a colorable claim of factual innocence.” Sawyer v. Whitley, 505 U.S. 333. 339 (1992) (internal quotation marks omitted). To satisfy the “fundamental miscarriage of justice” standard, a petitioner must establish by clear and convincing evidence that no reasonable fact-finder could have found him guilty of the charged offenses. See Dretke v. Haley, 541 U.S. 386, 393 (2004); Wildman v. Johnson, 261 F.3d 832, 842-43 (9th Cir. 2001).
In reply to Respondents' assertion that he procedurally defaulted his claims in the state court, Brown reasserts the prosecutor in his case “suborned perjury in order to obtain a conviction, ” and argues “the state's argument of procedural bar is demonstrably spurious.” (ECF No. 17 at 3). Brown urges the Court to set an evidentiary hearing in this matter.
B. Brown's claims for relief
In his federal habeas petition, Brown does not assert any claim that a specific federal constitutional right was violated in his state criminal proceedings-the federal habeas petition is void of any mention of a federal constitutional right or a specific constitutional provision. To the extent that he might be presenting a claim that his right to due process has been violated, the only time Brown arguably asserted in his state court proceedings that his federal constitutional rights were violated was in his appeal with regard to his claim of prosecutorial misconduct during the prosecutor's closing argument. In his counseled appellate brief, in support of his claim of prosecutorial misconduct, Brown cited to a state court opinion which quotes the United States Supreme Court case governing a due process claim based on prosecutorial misconduct:
In Arizona, a conviction may be reversed where a defendant has been denied a fair trial as a result of prosecutorial misconduct. In rebuttal closing arguments the prosecutor impugned defense counsel. Did the prosecutor's misconduct in this case so infect the trial with unfairness that it deprived [Brown] of due process?(ECF No. 14-1 at 27). In arguing the merits of this claim appellate counsel cited “State v. Hughes, 193 Ariz. 72, 79 [] (1998) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 [] (1974).” (ECF No. 14-1 at 37). Counsel argued:
Courts in other jurisdictions have also disapproved of prosecutorial attacks on defense attorneys. “Generally, it is unprofessional for the prosecutor to try the defendant's lawyer instead of the defendant even if there is specific evidence.” Williams v. Borg, 139 F.3d 737, 745 (9th Cir. 1998). A prosecutor commits misconduct when he denigrates the defense as a sham. See United States v. Sanchez, 176 F.3d 1213, 1224 (9th Cir. 1998) . . .(ECF 14-1 at 38-39).
The very last sentence in this portion of the appellate brief asserts: “The result of the prosecutor's repeated, intentional misconduct was the denial of due process and Mr. Brown's convictions and sentences should be reversed.” (ECF No. 14-1 at 42). However, this pleading never references the United States Constitution or the Fifth or Fourteenth Amendment and the United States Constitution is not mentioned in the appellate brief's Table of Citations. (ECF No. 14-1 at 28-29). Accordingly, the presentation of a claim of prosecutorial misconduct based on the prosecutor's comments during closing argument does not suffice to establish exhaustion of Brown's claim of misconduct based on the prosecutor's alleged subornation of perjury, as fair presentment requires the petition to present to the state courts both “the operative facts and the federal legal theories that animate the claim.” Arrendondo v. Neven, 763 F.3d 1122, 1138 (9th Cir. 2014). See also Woods v. Sinclair, 764 F.3d 1109, 1129 (9th Cir. 2014), quoting Gray v. Netherland, 518 U.S. 152, 162-63, (1996); Davis v. Silva, 511 F.3d 1005, 1011 (9th Cir. 2008).
Additionally, to properly exhaust a federal habeas claim the petitioner must fairly present the claim to the state court as a claim that the state courts violated a specific constitutional right in his criminal proceedings. Accordingly, Brown's petition for review in his Rule 32 action, in which he arguably presented the same claims raised in his §2254 petition, needed to apprise the appellate court that he was making a claim under the United States Constitution, see Duncan v. Henry, 513 U.S. 364, 365-66 (1995), and describe “both the operative facts and the federal legal theory on which his claim [was] based so that the state courts [could] have a ‘fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim.” Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003) (citations and internal quotation marks omitted). See also Picard, 404 U.S. at 275. To properly exhaust his federal habeas claim, to the extent he asserts the violation of a federal constitutional right in his petition, Brown was required to present a factually-identical federal constitutional issue to the Arizona Court of Appeals within the “four corners” of his appellate briefing. Castillo v. McFadden, 399 F.3d 993, 1000 (9th Cir. 2005).
Brown was required to “characterize the claims he raised in state proceedings specifically as federal claims.” Lyons v. Crawford, 232 F.3d 666, 670 (2000) (emphasis in original), as amended on other grounds by 247 F.3d 904 (9th Cir. 2001). Mere “general appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair trial, ” do not satisfy the requirement that a federal habeas claim be exhausted as a federal constitutional claim in the state courts. Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (citation omitted). “In short, the petitioner must have either referenced specific provisions of the federal constitution or statutes or cited to federal case law.” Lyons, 232 F.3d at 670. Lyons requires the allegation of the violation of a federal constitutional right cannot be implied, but instead the petitioner must make an explicit reference to federal law. “[A] federal claim has not been exhausted in state court unless the petitioner both raised the claim in state court and explicitly indicated then that the claim was a federal one . . .” Id. at 669 (emphasis original). See also Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996) (concluding the petitioner's general reference in state proceedings to alleged violations of his “right to present a defense and receive a fair trial” did not satisfy exhaustion requirement).
As previously noted, even if the claim raised in Brown's appellate brief could be construed as alleging the violation of a federal constitutional right, in his federal habeas petition he does not present the same factual basis for the claim of prosecutorial misconduct as that presented to the Arizona Court of Appeals in his appeal. In his federal habeas petition Brown asserts the prosecutor committed misconduct, but in contrast to the claim raised in his appeal he asserts the prosecutor suborned perjury rather than alleging the prosecutor's closing argument was improper and prejudicial. Accordingly, Brown has failed to properly exhaust in the state courts the claim of prosecutorial misconduct raised in his federal habeas petition.
Brown's primary allegation in this matter is that the state court erred by failing to grant him an evidentiary hearing with regard to his “newly discovered” evidence, i.e., Mr. Thorpe's affidavit, which he alleges supports a claim that the prosecutor committed misconduct by promising Mr. Thorpe a sentence of probation in return for perjuring himself at Brown's trial. However, Brown never mentions due process or the Fifth or Fourteenth Amendments in his federal habeas petition and, accordingly, he fails to state a claim cognizable in a § 2254 action. To be eligible for federal habeas corpus relief, a state prisoner must establish they are “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Federal habeas corpus relief is not available for errors of state law, as federal courts are without jurisdiction to review a state court's application of its own procedural rules. E.g., Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Poland v. Stewart, 169 F.3d 573, 584 (9th Cir. 1998).
Even if Brown had mentioned due process in his federal habeas petition, a petitioner may not “transform a state-law issue into a federal one merely by asserting a violation of due process.” Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996). “[T]he Supreme Court has long settled that the Fourteenth Amendment does not assure immunity from judicial error or uniformity of judicial decisions.” Little v. Crawford, 449 F.3d 1075, 1082 (9th Cir. 2006). To the extent that Brown asserts the state court violated the Arizona Rules of Criminal Procedure in failing to award him an evidentiary hearing, violations of state law or state criminal procedure which do not infringe upon specific federal constitutional protections are not cognizable under section 2254. See, e.g., Estelle v. McGuire, 502 U.S. 62, 68 (1991). An asserted violation of state law does not, without more, rise to the level of a defendant's right to due process of law under either the Fifth or the Fourteenth Amendments. See Little, 449 F.3d at 1082; Langford, 110 F.3d at 1389 (“[A]lleged errors in the application of state law are not cognizable in federal habeas corpus.”); Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989) (“[A] petition alleging errors in the state post-conviction review process is not addressable through habeas corpus proceedings.”).
To the extent Brown asserts he is entitled to federal habeas relief because he has newly discovered evidence of his innocence, this claim is not cognizable. In McQuiggin v. Perkins the Supreme Court declared that it had not “resolved whether a prisoner may be entitled to habeas relief based on a freestanding claim of actual innocence.” 569 U.S. 383, 392 (2013), citing Herrera v. Collins, 506 U.S. 390, 404-05 (1993). The Supreme Court has postulated that a claim of actual, factual innocence based on newly discovered evidence might be cognizable, but only in capital cases. See Herrera, 506 U.S. at 417. Notably, even claims of actual innocence based on “newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state proceeding.” Herrera v. Collins, 506 U.S. 390, 400 (1993) (“[T]he existence merely of newly discovered evidence relevant to the innocence of a state prisoner is not a ground for federal habeas corpus relief.”). The Ninth Circuit recognizes an exception to this rule where a defendant produces “affirmative proof of actual innocence based on newly discovered evidence.” Turner v. Calderon, 281 F.3d 851, 872 (9th Cir. 2002). However, the Ninth Circuit also requires that a habeas petitioner asserting a freestanding claim of actual innocence make a “stronger showing than insufficiency of the evidence to convict” showing adopted by the Supreme Court in Jackson v. Virginia, 443 U.S. 307, 319 (1979). See Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997). The required showing must go “beyond demonstrating doubt about [the petitioner's] guilt, and must affirmatively prove that he is probably innocent.” Id. (citation omitted). Post-conviction evidence serving only to “undercut the evidence presented at trial” does not suffice to meet this standard. Id. at 477; see also Spivey v. Rocha, 194 F.3d 971, 979 (9th Cir. 1999) (finding habeas relief unavailable where “the totality of the new evidence does not undermine the structure of the prosecution's case”); Swan v. Peterson, 6 F.3d 1373, 1384-85 (newly-discovered evidence warrants habeas relief only when it bears on the constitutionality of the conviction and probably would produce an acquittal).
One Ninth Circuit Court of Appeals panel described the holding in Herrera as follows: The majority opinion in Herrera, however, assumed for purposes of decision that “a truly persuasive” demonstration of actual innocence would render the execution of a defendant unconstitutional, but that “the threshold showing for such an assumed right would necessarily be extraordinarily high.” Id. at 417 []. As we have noted, however, a majority of the Justices in Herrera would have supported a claim of free-standing actual innocence. [] We also held that “a habeas petitioner asserting a freestanding innocence claim must go beyond demonstrating doubt about his guilt, and must affirmatively prove that he is probably innocent.” Id. Jackson v. Calderon, 211 F.3d 1148, 1164-65 (9th Cir. 2000) (internal citations omitted).
With regard to Brown's request for an evidentiary hearing, 28 U.S.C. § 2254(e) substantially restricts the Court's discretion to grant an evidentiary hearing, and prescribes the manner in which federal courts must approach the factual record. See Cullen v. Pinholster, 563 U.S. 170, 185 n.8 (2011); Baja v. Ducharme, 187 F.3d 1075, 1077-78 (9th Cir. 1999). “[A] determination of a factual issue made by a State court shall be presumed to be correct, ” with the “applicant [having] the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
The Arizona habeas trial court, which was also the convicting court, determined the affidavit of Mr. Thorpe was not credible and, therefore, declined to conduct an evidentiary hearing. This credibility determination is entitled to a presumption of correctness because the state habeas court, as the convicting court, had observed Mr. Thorpe's trial testimony. See Rice v. Collins, 546 U.S. 333, 341-42 (2006) (“Reasonable minds reviewing the record might disagree about [a witness's] credibility, but on habeas review that does not suffice to supersede the trial court's credibility determination.”); Marshall v. Lonberger, 459 U.S. 422, 434 (1983) (“28 U.S.C. § 2254(d) gives federal habeas courts no license to re-determine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them.”). An evidentiary hearing in a § 2254 matter “is not required on issues that can be resolved by reference to the state court record.” Hibbler v. Benedetti, 693 F.3d 1140, 1147 (9th Cir. 2012) (internal quotations omitted).
III. Conclusion
Brown did not properly exhaust any of the claims raised in his § 2254 petition by presenting both the same factual and legal basis for the claims to the Arizona Court of Appeals in a procedurally correct manner. Brown failed to properly exhaust the same claims presented in his federal habeas petition in the state courts and, accordingly the claims are procedurally defaulted. Brown fails to show cause for, or prejudice arising from, his procedural default of these claims, and Brown has not established a fundamental miscarriage of justice will occur absent consideration of the merits of his claims for relief. Additionally, Brown fails to state a cognizable claim for relief pursuant to § 2254 because he does not allege in his petition that a specific federal constitutional right was violated in his state criminal proceedings.
IT IS THEREFORE RECOMMENDED that the petition seeking a federal writ of habeas corpus at ECF No. 1 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), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length.
Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will constitute a waiver of a party's right to appellate review of the findings of fact and conclusions of law in an order or judgment entered pursuant to the recommendation of the Magistrate Judge.
Pursuant to 28 U.S.C. foll. § 2254, R. 11, the District Court must “issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” The undersigned recommends that, should the Report and Recommendation be adopted and, should Brown seek a certificate of appealability, a certificate of appealability should be denied because he has not made a substantial showing of the denial of a constitutional right.
. . . [t]he testimony then moved to the agreement between the State and Mr. Thorpe. The witness testified that he gave a free talk because the State was “trying to send me to DOC.” [] Mr. Thorpe testified that he was charged with three felonies and offered five to fifteen years in prison. [] They changed the plea, and Mr. Thorpe received probation. (ECF No. 14-1 at 110).