Opinion
CV-21-01164-PHX-DJH (JZB)
02-14-2022
Steven Burgess, Petitioner, v. David Shinn, et al., Respondents.
HONORABLE JOHN Z. BOYLE, UNITED STATES MAGISTRATE JUDGE
REPORT & RECOMMENDATION
TO THE HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT JUDGE:
Petitioner Steven Burgess has filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.)
I. Summary of Conclusion.
Petitioner pleaded guilty to two counts of attempted child molestation and was sentenced to imprisonment and a consecutive term of probation. After completing his first sentence, he violated his probation and was again sentenced to prison. Petitioner raises one ground for habeas relief that is non-cognizable, in part, and procedurally defaulted, in part. Accordingly, the Court recommends that the petition be denied and dismissed with prejudice.
II. Background.
In 2001, Petitioner pleaded guilty to two counts of attempted child molestation. (Doc. 6-1, Ex. C, at 9-16.) He was sentenced to 15 years' imprisonment on Count 1 followed by lifetime probation on Count 2. (Doc. 6-1, Ex. E, at 21-26.) After his release from prison in 2013, the state petitioned to revoke his probation. (Doc. 6-1, Ex. F, at 2830.) The court granted the petition based on Petitioner's admissions to violations of his probation and sentenced him to his current sentence of 15 years of imprisonment. (Doc. 6-1, Ex. M, at 65-69.)
Prior to this, Petitioner had been sentenced on the probation violation based on an earlier admission. (Doc. 6-1, Ex. H, at 35-39.) However, that sentence was vacated because Petitioner had not been sufficiently advised of his constitutional rights at the admission hearing. (See Doc. 6-1, Ex. J, at 45-49; Doc. 6-1, Ex. L, at 62-63.)
Petitioner appealed, arguing that the sentencing court erred in balancing aggravating and mitigating factors at sentencing as required by state statute. (Doc. 6-1, Ex. P, 78-93.) The Arizona Court of Appeals affirmed and its mandate followed. (Doc. 6-1, Ex. R, at 11214; Doc. 6-1, Ex. S, at 116-17.) Petitioner filed a petition for post-conviction relief (“PCR”) requesting an order to the Arizona Department of Corrections to clarify he is only serving 85% of his sentence, which the court granted. (Doc. 6-1, Ex. U, at 125-27; Doc. 6-1, Ex. W, at 146.) The record reflects nothing further.
III. Petition for a Writ of Habeas Corpus.
As summarized by the Court in its July 26, 2021 Order:
Petitioner raises one ground for relief, in which he asserts the trial court applied improper aggravating factors when it sentenced him for the probation violation, in violation of his Fifth, Sixth, and Fourteenth Amendment rights.
(Doc. 3 at 1; see Doc. 1 at 5.) Respondents filed a Limited Answer arguing the petition should be dismissed as non-cognizable and procedurally defaulted. (Doc. 6.) Petitioner filed a Reply arguing his claims are cognizable and that he has shown cause to excuse any procedural default. (Doc. 7.)
IV. Requisites for Federal Habeas Review.
A. Federal Claim.
“In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991); see 28 U.S.C. § 2254(a). “[F]ederal habeas corpus relief does not lie for errors of state law.” Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (internal quotation marks and citations omitted); see Estelle, 502 U.S. at 63 (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”).
B. Exhaustion of State Remedies.
“Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (cleaned up); see 28 U.S.C. § 2254(b)(1). “To provide the State with the necessary ‘opportunity,' the prisoner must ‘fairly present' his claim in each appropriate state court.” Baldwin, 541 U.S. at 29 (citations omitted). Fair presentation requires a prisoner to “clearly state the federal basis and federal nature of the claim, along with relevant facts.” Cooper v. Neven, 641 F.3d 322, 326 (9th Cir. 2011).
“To exhaust one's state court remedies in Arizona, a petitioner must first raise the claim in a direct appeal or collaterally attack his conviction in a petition for post-conviction relief.” Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). In non-capital cases, “claims of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.” Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); see Crowell v. Knowles, 483 F.Supp.2d 925, 933 (D. Ariz. 2007).
C. Absence of State Procedural Bar.
“A federal court may not hear a habeas claim if it runs afoul of the procedural bar doctrine.” Cooper, 641 F.3d at 327. Under this doctrine, a claim is procedurally defaulted and consequently barred from federal review “if the state court denied the claim on state procedural grounds” or “if [the] claim is unexhausted but state procedural rules would now bar consideration of the claim.” Id.; see Martinez v. Ryan, 566 U.S. 1, 9 (2012) (“[A] federal court will not review the merits of claims, including constitutional claims, that a state court declined to hear because the prisoner failed to abide by a state procedural rule.”); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002) (“A claim is procedurally defaulted ‘if the petitioner failed to exhaust state remedies 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.'” (quoting Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991))). To preclude federal review, the state procedural rule must be a “nonfederal ground adequate to support the judgment” and “firmly established and consistently followed.” Martinez, 566 U.S. at 9. To obtain review of a procedurally defaulted claim, the prisoner must show “cause for the default and resulting prejudice, or that failure to review the claims would result in a fundamental miscarriage of justice.” Moormann v. Schriro, 426 F.3d 1044, 1058 (9th Cir. 2005). The latter requires a showing of actual innocence. Poland v. Stewart, 117 F.3d 1094, 1106 (9th Cir. 1997).
“Arizona's waiver rules are independent and adequate bases for denying relief.” Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014). Under these rules, a defendant is precluded from relief on any constitutional claim “waived 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.” Ariz. R. Crim. P. 33.2(a)(3). A defendant waives a claim by failing to timely assert it unless the claim implicates a “right . . . of sufficient constitutional magnitude to require personal waiver by the defendant,” e.g., the right to a jury and the right to counsel. Stewart v. Smith, 202 Ariz. 446, 449-50 (2002).
Effective January 1, 2020, the Arizona Supreme Court abrogated former Rule 32 and divided its substance among new Rule 32 (applying to defendants convicted at trial) and new Rule 33 (applying to pleading defendants). Ariz. Sup. Ct. Order No. R-19-0012, available at https://www.azcourts.gov/rules/Recent-Amendments/Rules-of-Criminal-Procedure. The new rules apply to PCR proceedings initiated or pending on or after January 1, 2020 unless applying them “would be infeasible or work an injustice.” Id. The Court presumes any subsequent PCR proceeding would be governed by Rule 33.
V. Analysis.
Petitioner claims his rights under the Fifth, Sixth, and Fourteenth Amendments were violated because (1) the trial court considered “improper” aggravating factors at sentencing and (2) because those factors were not proven beyond a reasonable doubt to a jury. (Doc. 1 at 5.) Petitioner is not entitled to habeas relief on these claims because they are non- cognizable or without merit, respectively.
A. Whether the trial court considered proper aggravating factors.
In defining the scope of habeas review of claims regarding aggravation, the Supreme Court has explained:
Because federal habeas corpus relief does not lie for errors of state law, federal habeas review of a state court's application of a constitutionally narrowed aggravating circumstance is limited, at most, to determining whether the state court's finding was so arbitrary or capricious as to constitute an independent due process or Eighth Amendment violation.Lewis v. Jeffers, 497 U.S. 764, 765 (1990).
Here, Petitioner merely alleges the sentencing court did not consider appropriate aggravating factors, which is an issue of state law. See generally A.R.S. § 13-701.D. He does not allege any facts indicating that his sentence was so arbitrary or capricious as to constitute an independent violation of due process or the Eighth Amendment. The claim is therefore non-cognizable because “federal habeas corpus relief does not lie for errors of state law.” Swarthout, 562 U.S. at 219. Petitioner cannot convert this non-cognizable issue of state law into a cognizable issue of federal law simply by characterizing it as a violation of federal due process. Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996) (“[A petitioner] may not . . . transform a state-law issue into a federal one merely by asserting a violation of due process.”). Thus, Petitioner is not entitled to habeas relief on this issue.
B. Whether the aggravating factors had to be proven to a jury.
Petitioner did not fairly present this issue as an issue of federal law to the Arizona Court of Appeals on appeal. (See Doc. 6-1, Ex. P, at 88-91.) Petitioner merely argued that the trial court failed to properly weigh the aggravating and mitigating factors in violation of A.R.S. § 13-701; he did not cite any federal law in support of this argument. (See id.) Thus, the claim here is unexhausted. See Cooper, 641 F.3d at 326; Swoopes, 196 F.3d at 1010; Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996) (“If a petitioner fails to alert the state court to the fact that he is raising a federal constitutional claim, his federal claim is unexhausted regardless of its similarity to the issues raised in state court.”).
The claim is procedurally defaulted because Ariz. R. Crim. P. 33.2(a)(3) bars Petitioner from asserting it in state court now. See Beaty, 303 F.3d at 987 (“If [petitioner] has any unexhausted claims, he has procedurally defaulted them, because he is now time-barred under Arizona law from going back to state court.” (citing Ariz. R. Crim. P. 32.2(a))); Dickens v. Ryan, 740 F.3d 1302, 1317 (9th Cir. 2014) (“An unexhausted claim will be procedurally defaulted, if state procedural rules would now bar the petitioner from bringing the claim in state court.”).
The procedural default is not excused because Petitioner fails to show cause and prejudice or a fundamental miscarriage of justice. Petitioner does not allege or show he is actually innocent, and therefore does not show a fundamental miscarriage of justice. See Poland, 117 F.3d at 1106. As cause, Petitioner asserts ineffective assistance of sentencing, appellate, and PCR counsel. (Doc. 7 at 4.) In his Reply, Petitioner asserts that “ineffective assistance of counsel was the cause for the procedural default.” (Id.)
In general, to establish cause for a procedural default based on ineffective assistance of counsel, the petitioner must first have presented the ineffective assistance claim to the state courts, like any other constitutional claim. See Murray v. Carrier, 477 U.S. 478, 489 (1986) (“The exhaustion doctrine . . . requires that a claim of ineffective assistance be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default.”); Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000) (“[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.”). Here, Petitioner has not done so. However, an exception exists when a state requires a prisoner to raise ineffective assistance claims in a collateral proceeding, as here, and where appointed counsel in the collateral proceeding was ineffective for failing to raise a claim of ineffective assistance of trial counsel. Martinez, 566 U.S. at 14. To overcome a procedural default in this circumstance, a prisoner must show “that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.” Id.
Petitioner does not overcome the procedural default because he fails to demonstrate that the underlying ineffective-assistance-of-sentencing-counsel claim has “some merit.” “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). “[T]he ‘statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely v. Washington, 542 U.S. 296, 303 (2004).
Here, Petitioner was not sentenced above the statutory maximum in violation of his Sixth Amendment rights under Apprendi. But he does assert that his sentence was unconstitutional because it was aggravated by findings that were not made by a jury, which would be a violation of Blakely, 542 U.S. 296. See Mullins v. Ryan, 679 Fed. App'x. 617, 618 (9th Cir. 2017) (“Since Mullins received an aggravated sentence without a jury finding of any aggravating factor beyond a reasonable doubt, we hold that Mullins's sentencing was conducted in a manner contrary to federal law as clearly established in Blakely, 542 U.S. at 305, 124 S.Ct. 2531; see § 2254(d).”). But Blakely error is subject to harmless error review if a jury would have found at least one aggravator per count. See Butler v. Curry, 528 F.3d 624, 648 n.16 (9th Cir. 2008) (recognizing that Blakely error may be harmless when there is “overwhelming” evidence of an aggravating circumstance). At sentencing, the trial court stated “[t]hat you've been convicted of a similar offense in the past I find is an aggravating factor.” (Doc. 6-1 at 104.) Petitioner was convicted of Attempt to Commit Sexual Assault on December 15, 1988 and was sentenced to 10 years of imprisonment. (Doc. 6-1 at 133.) The fact of this prior conviction demonstrates there was no Apprendi error, and if there was a Blakely error, it was harmless because a jury would have found this aggravating factor beyond a reasonable doubt. Mullins, 679 Fed. App'x. at 618.
Accordingly, the claim is procedurally defaulted without excuse and consequently barred from this Court's review.
VI. Conclusion.
An evidentiary hearing is not necessary as the record is sufficiently developed. See Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 2011). For the reasons stated in this Report, Petitioner is not entitled to habeas relief. Accordingly, the Court recommends that Petitioner's petition be denied and dismissed with prejudice.
VII. Certificate of Appealability.
“The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11(a), Rules Governing Section 2254 Cases, 28 U.S.C. § 2254. A certificate of appealability may issue “only if the applicant has made a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), “by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further,” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Because Petitioner has not made the requisite showing here, the Court will recommend that a certificate of appealability be denied.
IT IS THEREFORE RECOMMENDED that the Petition for a Writ of Habeas Corpus (doc. 1) be denied and dismissed with prejudice.
IT IS FURTHER RECOMMENDED that a certificate of appealability 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 Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have 14 days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.