Opinion
No. CV-17-4337-PHX-DGC (DMF)
11-02-2018
Carleen Crenshaw-Bruce, Petitioner, v. Charles L. Ryan, et al., Respondents.
REPORT AND RECOMMENDATION
TO THE HONORABLE DAVID G. CAMPBELL, SENIOR U.S. DISTRICT JUDGE:
This matter is on referral to the undersigned pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a report and recommendation. Carleen Crenshaw-Bruce ("Petitioner" or "Crenshaw-Bruce") filed her petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("Petition") on November 27, 2017 (Doc. 1). She was released from prison on February 9, 2018, upon completion of her sentence. (Doc. 14-18 at 28) Respondents filed their Limited Response on March 29, 2018 (Doc. 14), and Petitioner subsequently filed her Reply on July 5, 2018 (Doc. 22). As is explained below, the undersigned recommends that Crenshaw-Bruce's Petition be denied and dismissed with prejudice. . . . . . .
Citations to the record ("Doc.") indicate documents as displayed in the official electronic document filing system maintained by the District of Arizona.
I. BACKGROUND
A. Petitioner's trial, conviction, and sentence
The State filed a direct complaint against Petitioner in the Maricopa County Superior Court on July 22, 2010, alleging counts of interfering with judicial proceedings, resisting arrest, and possession or use of dangerous drugs. (Doc. 14-1 at 7-8) These charges arose from Petitioner's actions alleged to have occurred on March 9, 2010 in Mesa, Arizona. (Id.) A probable cause statement provided by one of the Mesa Police Department arresting officers detailed that an order of protection had been issued against Petitioner on March 5, 2010. (Id. at 4) At trial, this arresting officer testified that Petitioner's mother had obtained the protective order. (Doc. 14-3 at 38-40) When officers responded to Petitioner's mother's call, they reportedly learned that Petitioner had been banging on her mother's door and yelling at her. (Doc. 14-1 at 10) The arresting officer stated he had advised Petitioner she was under arrest for interfering with judicial proceedings. (Id.) The officer further stated that Petitioner forcefully resisted arrest, even after the officers took her to the ground and pepper sprayed her. (Id.) In the probable cause statement, the officer declared that after Petitioner had been transported to the jail, he asked her if she had any drugs or contraband on her person, and that she replied she had a container of methamphetamine on the left side of her bra. (Id.) A search of her person located a small pouch containing a crystalline substance that subsequently tested positive for the presence of methamphetamine. (Id.)
The trial court ordered a competency evaluation of Petitioner in April 2011 (Doc. 14-1 at 81), which resulted in a finding in May 2011 that she was competent to stand trial (Id. at 85-86). Due to concerns expressed by Petitioner's counsel, she was again referred for competency evaluation in January 2012. (Id. at 87-88) Petitioner was deemed not competent to stand trial in May 2012, and was ordered to complete treatment to restore her to competency. (Id. at 93-96) In August 2012, the court found Petitioner had been restored to competency. (Id. at 100-102)
In November 2012, the superior court conducted a hearing on Petitioner's Motion to proceed pro se. (Doc. 14-2 at 126-138) The court decided to send Petitioner for an additional competency evaluation, thinking that Petitioner could be instructed on court rules sufficiently to allow her to represent herself. (Id. at 134) In April 2013, the superior court permitted Petitioner to waive her right to counsel, and assigned appointed counsel to assist her in the preparation and trial of her case. (Id. at 142) Petitioner requested a bench trial (Id. at 160-166), which the court subsequently granted (Id. at 169, 185).
Petitioner represented herself during her two-day bench trial. (Doc. 14-3 at 22-240) At the conclusion of trial, the court found Petitioner guilty on all three charges. (Id. at 232) On October 18, 2013, the court sentenced Petitioner to time served on Count 1 (interfering with judicial proceedings), to the presumptive term of 3.75 years on Count 2 (resisting arrest), and to a mitigated term of 6 years on Count 3 (possession or use of dangerous drugs). (Doc. 14-5 at 28-29) The court ordered the sentences for Counts 2 and 3 to run concurrently. (Id. at 30) Petitioner was represented by appointed counsel for her sentencing proceedings. (Doc. 14-4 at 9-13)
B. Direct appeal
After trial but prior to sentencing, Petitioner filed a special action with the Arizona Court of Appeals in July 2013 in which she argued a number of errors associated with the protective order, her arrest, discovery issues, representation by defense counsel, her guilty verdict, and the legitimacy of her confinement. (Doc. 14-6 at 2-17) She asked the court of appeals to reverse the trial court judgment and release her from custody. (Id. at 17) The court of appeals declined jurisdiction on July 19, 2013. (Doc. 14-8 at 2) In October 2013, after sentencing, Petitioner again filed a special action with the Arizona Court of Appeals. (Id. at 4-9) She alleged trial and sentencing errors. (Id.) The court of appeals again declined jurisdiction on October 25, 2013. (Id. at 11)
Petitioner filed a notice of appeal of her conviction and sentencing on October 31, 2013. (Doc. 14-18 at 51) Her appointed counsel filed an opening brief on June 9, 2014. (Doc. 14-8 at 30-57) The issues presented included: (1) whether the trial court erred by holding a suppression hearing without Petitioner being present; and (2) whether the State violated Petitioner's constitutional rights by interrogating her before giving her Miranda warnings. (Id. at 43) The Arizona Court of Appeals affirmed in a memorandum decision dated November 25, 2014. (Doc. 14-9 at 28-33) Petitioner filed a petition for review in the Arizona Supreme Court in January 2015, and that court denied review on May 22, 2015. (Doc. 14-10 at 11)
C. Post-conviction relief ("PCR") action
Petitioner filed a notice of PCR with the superior court on November 4, 2013. (Doc. 14-10 at 21-22) Her appointed counsel moved to withdraw her notice of PCR without prejudice pending the outcome of her direct appeals in state court. (Id. at 33) Acting pro se, Ms. Crenshaw-Bruce submitted a revised PCR petition filed by the court on September 16, 2015. (Doc. 14-14 at 2-31) Petitioner alleged claims related to her arrest, trial court rulings, her conviction and sentencing, the effectiveness of representation by trial counsel, and her right to be represented by counsel. (Id.)
The superior court denied her petition in a reasoned decision filed on February 19, 2016. (Doc. 14-16 at 70-77) Ms. Crenshaw-Bruce's petition for review to the Arizona Court of Appeals (Doc. 14-17 at 2-21) was granted and relief was summarily denied in a decision filed on February 18, 2016. (Id. at 77-78) Petitioner did not seek further review.
D. Petitioner's habeas claims
As noted, Ms. Crenshaw-Bruce filed her Petition in November 2017. In Ground 1, Petitioner asserts that she was arrested on Count 1 (criminal interference with judicial proceedings) without probable cause, in violation of Arizona Rules of Criminal Procedure 5.3 and 5.4. (Doc. 1 at 5-6) In Ground 2, Petitioner argues violations of Arizona Rule of Criminal Procedure 2.5 and of the Fifth and Fourteenth Amendments of the United States Constitution arising out of the filing of her complaint in Justice Court. (Id. at 7-8) In Ground 3, Petitioner alleges she was arrested without a valid warrant in violation of her Fifth and Fourteenth Amendment rights. (Id. at 9-10) Petitioner's Ground 4 claim is that the government caused the "unlawful use of a Departmental Report Number[,]" resulting in a miscarriage of justice. (Id. at 11-13) In Ground 5, Petitioner claims violation of her speedy trial rights under the Arizona and United States Constitutions. (Id. at 14-15) Petitioner contends in Ground 6 that the State engaged in prosecutorial misconduct and violated her rights under Brady as well as the Fifth and Fourteenth Amendments. (Id. at 16-26) In Ground 7, Petitioner asserts claims of ineffective assistance of counsel ("IAC") committed by trial counsel, and a single claim of IAC by appellate counsel. (Id. at 27-33)
II. LEGAL STANDARDS
A. Exhaustion of remedies and procedural default
A state prisoner must properly exhaust all state court remedies before this Court may grant an application for a writ of habeas corpus. 28 U.S.C. § 2254(b)(1), (c); Duncan v. Henry, 513 U.S. 364, 365 (1995); Coleman v. Thompson, 501 U.S. 722, 731 (1991). Arizona prisoners properly exhaust state remedies by fairly presenting claims to the Arizona Court of Appeals in a procedurally appropriate manner. O'Sullivan v. Boerckel, 526 U.S. 838, 843-45 (1999); Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999). Arizona's "established appellate review processes" consist of a direct appeal and a PCR proceeding. See Ariz. R. Crim. P. 31, et. seq. and Rule 32, et. seq.; see also Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994) ("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 pursuant to Rule 32.").
A claim can also be subject to an express or implied procedural bar. Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). An express procedural bar exists if the state court denies or dismisses a claim based on a procedural bar "that is both 'independent' of the merits of the federal claim and an 'adequate' basis for the court's decision." Harris v. Reed, 489 U.S. 255, 260 (1989); Stewart v. Smith, 536 U.S. 856, 860 (2002) (Arizona's "Rule 32.2(a)(3) determinations are independent of federal law because they do not depend upon a federal constitutional ruling on the merits"); Johnson v. Mississippi, 486 U.S. 578, 587 (1988) ("adequate" grounds exist when a state strictly or regularly follows its procedural rule). See also Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991); Robinson, 595 F.3d at 1100. An implied procedural bar exists if a claim was not fairly presented in state court and no state remedies remain available to the petitioner. Teague v. Lane, 489 U.S. 288, 298-99 (1989); Rose v. Lundy, 455 U.S. 509, 519-20 (1982); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002). This is often referred to as "technical" exhaustion, because although the claim was not actually exhausted in state court, the petitioner no longer has an available state remedy. See Coleman, 501 U.S. at 732 ("A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no remedies any longer 'available' to him.").
The Court may excuse a procedurally defaulted claim if Petitioner can demonstrate either: (1) cause for the default and actual prejudice, or (2) a miscarriage of justice. Schlup, 513 U.S. at 321; Coleman, 501 U.S. at 750; Murray v. Carrier, 477 U.S. 478, 495-96 (1986). "Cause" is something that "cannot be fairly attributable" to a petitioner, and a petitioner must show that this "objective factor external to the defense impeded [his] efforts to comply with the State's procedural rule." Coleman, 501 U.S. at 753 (citation and internal quotation marks omitted). To establish prejudice, a "habeas petitioner must show 'not merely that the errors at ... trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'" Murray, 477 U.S. at 494 (quoting United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original)). "Such a showing of pervasive actual prejudice can hardly be thought to constitute anything other than a showing that the prisoner was denied 'fundamental fairness' at trial." Id.
B. Ineffective assistance of counsel
Under clearly established Federal law on IAC, a petitioner must show that his trial counsel's performance was both (a) objectively deficient and (b) caused him prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). This results in a "doubly deferential" review of counsel's performance. Cullen v. Pinholster, 563 U.S. 170, 190 (2011) (explaining that in a 28 U.S.C. § 2254 case, deference is due both to defense counsel's performance and to the state court's ruling). The Court has discretion to determine which Strickland prong to apply first. LaGrand v. Stewart, 133 F.3d 1253, 1270 (9th Cir. 1998). A habeas court reviewing a claim of ineffective assistance of counsel must determine "whether there is a reasonable argument that counsel satisfied Strickland's deferential standard, such that the state court's rejection of the IAC claim was not an unreasonable application of Strickland. Relief is warranted only if no reasonable jurist could disagree that the state court erred." Murray v. Schriro, 746 F.3d 418, 465-66 (9th Cir. 2014) (internal citations and quotations omitted).
III. DISCUSSION
For the reasons explained below, the undersigned concludes that each of Ms. Crenshaw-Bruce's claims for relief has been procedurally defaulted, without excuse.
A. Ground 1 is procedurally defaulted
Briefly, Petitioner argues that her rights under the Fifth and Fourteenth Amendments, state statutes, and the federal and state rules of evidence were violated when she was arrested on Count 1 (interfering with judicial proceedings) without probable cause. (Doc. 1 at 5-6) Petitioner indicates that she did not raise this issue on direct appeal to the Arizona Court of Appeals, and instead first raised the issue in her petition for review to the Arizona Supreme Court in her direct appeal. (Doc. 1 at 6) The Ninth Circuit has held that a federal habeas petitioner fails to exhaust a constitutional claim in state court if she does not "properly raise it on every level of direct review." Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004) (citing Ortberg v. Moody, 961 F.2d 135, 137 (9th Cir. 1992) and Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure, § 23.3(b) (4th ed. 1998)). The Ninth Circuit relied on the United States Supreme Court opinion in Castille v. Peoples, 489 U.S. 346, 351 (1989), for the proposition that a federal habeas claim "remains unexhausted for lack of 'fair presentment' where . . . it was raised for the first time on discretionary review to the state's highest court and denied without comment." Moore, 386 F.3d at 916.
Petitioner is correct that she did not raise this issue on direct appeal to the Arizona Court of Appeals. (Doc. 14-8 at 43)
Petitioner did not properly raise her Ground 1 claim on direct appeal in state court. Thus, pursuant to Rule 32.2(a)(1), relief on this claim in her PCR action was precluded. Moreover, Petitioner is time-barred under Arizona law from returning to state court to exhaust this claim. Beaty, 303 F.3d at 987. See also Stewart, 536 U.S. at 860 (holding that Rule 32.2(a) is an adequate and independent procedural bar). This claim is subject to an implied procedural bar because it was not fairly presented in state court and no state remedies remain available to Petitioner. Teague, 489 U.S. at 298-99; Rose, 455 U.S. at 519-20; Beaty, 303 F.3d at 987. Accordingly, this Court may review the claim only if Petitioner can demonstrate either: (1) cause for the default and actual prejudice to excuse this default, or (2) a miscarriage of justice. Schlup v. Delo, 513 U.S. 298, 321 (1995); Coleman, 501 U.S. at 750; Murray, 477 U.S. at 495-96.
Petitioner explains that she identified this claim, along with others, as issues she wished to present in her direct appeal, but that her appellate counsel declined to include the claim in her appellate brief. (Doc. 1 at 6) In section H, infra, undersigned analyzes whether Petitioner has met the requirements for excuse of the procedural default for this and other grounds.
B. Ground 2 is procedurally defaulted
In Ground 2, Petitioner alleges a violation of "jurisdictional requirements" involving Arizona Rule of Criminal Procedure 2.5 and the Fifth and Fourteenth Amendments. (Doc. 1 at 7-8) Rule 2.5 permits a prosecutor to file in Justice Court a complaint involving a "misdemeanor action triable in Superior Court[.]" Ariz. R. Crim. P. 2.5. Petitioner avers, and the record confirms, that she did not raise this issue with the Arizona Court of Appeals on direct appeal. (Doc. 1 at 7) As is explained above regarding Ground 1, because Petitioner failed to properly exhaust this claim in state court and no state remedies remain, the Court is only able to review the claim if Petitioner demonstrates cause and prejudice for her default, or a fundamental miscarriage of justice. Petitioner states that her appellate counsel did not assert this claim in her direct appeal. (Id. at 8)
C. Ground 3 is procedurally defaulted
Petitioner's Ground 3 alleges that her arrest warrant was invalid pursuant to Arizona Rules of Criminal Procedure 3.1 (issuance of warrant or summons) and 3.2 (content of warrant or summons), and also violated her Fifth and Fourteenth Amendment rights. (Doc. 1 at 9-10) As with Grounds 1 and 2, Petitioner indicates she did not argue her Ground 3 issue on direct appeal to the Arizona Court of Appeals. (Doc. 1 at 10, Doc. 14-8 at 83) For the reasons given above respecting Grounds 1 and 2, Petitioner's Ground 3 claim is "'technically' exhausted but procedurally defaulted" because no remedies remain under Arizona Rule of Criminal Procedure 32. Spreitz v. Ryan, 617 F.Supp.2d 887, 900 (D. Ariz. 2009). Petitioner asserts that her appellate counsel was ineffective for failing to include this issue in her direct appeal. (Doc. 1 at 10)
D. Ground 4 is procedurally defaulted
Petitioner appears to argue that she suffered a "miscarriage of justice" when she was prevented by her trial counsel and the superior court from introducing into evidence at trial an "incident/investigation report" on her arrest. (Doc. 1 at 11-12) Again, Petitioner did not raise this claim on direct appeal to the Arizona Court of Appeals, resulting in procedural default of this claim. (Id. at 12) She argues that her appellate counsel provided ineffective assistance of counsel by not including this claim in her direct appeal to the Arizona Court of Appeals. (Id. at 13)
E. Ground 5 is procedurally defaulted
In Ground 5, Petitioner contends that her speedy trial rights under the United States and Arizona Constitutions were denied when the superior court placed her in competency evaluations under Rule 11 of the Arizona Rules of Criminal Procedure. (Doc. 1 at 14) She argues the court lacked "good or extraordinary [cause]" that would have warranted the "last day" continuances occasioned by the competency evaluations. (Id.) As with Grounds 1 through 4, this ground is technically exhausted but procedurally defaulted. Petitioner asserts that her appellate counsel was ineffective for not presenting this claim in her direct appeal. (Doc. 1 at 15)
F. Ground 6 is procedurally defaulted
Petitioner asserts in Ground 6 that her Brady rights pursuant to the Fifth and Fourteenth Amendments were violated by a number of instances of prosecutorial misconduct. (Doc. 1 at 16-25) Among the violations Petitioner asserted were that: (1) her arrest/booking record was "falsely typed up," that it listed no property or evidence obtained from her, and that the record was not disclosed or otherwise provided to her; (2) prior to April 29, 2013, the State had failed to produce evidence that on the day of her arrest, Petitioner had possessed methamphetamine; (3) Ms. Fredricks, the expert who identified the substance taken from Petitioner on the day of her arrest as containing methamphetamine, tested the substance at an unaccredited laboratory and committed perjury at trial; (4) the prosecution's witness list did not identify Ms. Fredricks; (5) the arresting officers committed perjury in their trial testimony; (6) the trial court prevented her from testifying to what a document contained; and (7) the prosecutor knew that Petitioner was innocent, but withheld proof. (Id.) As with her claims alleged in Grounds 1 through 5, Petitioner did not assert her Ground 6 issues on direct appeal. (Id. at 25) Petitioner asserts her appellate counsel refused to raise this ground. (Id. at 26)
G. Ground 7 claims are procedurally defaulted
Petitioner asserts a number of claims of IAC by her trial counsel, including that trial counsel: (1) failed to request review of the witness preliminary hearing; (2) did not request stipulations related to evidentiary foundation for the drugs discovered on her person at the time of her arrest and the associated chain of custody; (3) participated in a suppression hearing without notice to Petitioner, even though he knew she no longer wanted him to represent her; (4) filed a motion requesting fingerprint evidence that "was deliberately lacking requirements of [Arizona Rule of Criminal Procedure] 35.1," such as argument or citation to case law; (5) provided her with "an examination worksheet, a graph sheet and a chain of custody sheet with no official heading, on [January 25, 2012]"; and (6) requested the court to place Petitioner in competency proceedings "every time [prior to trial] the Defendant requested new counsel or to waive counsel[.]" (Doc. 1 at 27-32) Additionally, Petitioner contends that her appellate counsel on direct appeal "did not include all the facts I wanted him to present." (Id. at 33)
The record reflects that a settlement conference was conducted on January 25, 2012. (Doc. 14-2 at 84-119)
In her PCR petition before the superior court, Ms. Crenshaw-Bruce described some of the background details she now relies on to support her Ground 7 claims. (Doc. 14-14 at 13, 23-25, 30) In Petitioner's "factual background" section of her petition for review, she stated as fact that: (1) her trial counsel, Thomas Chiang, had violated Arizona Rule of Professional Conduct, ER 8.4(c) (Id. at 10); (2) Mr. Chiang admitted to a potential conflict (Id. at 12); and (3) there was a "complete breakdown in communication" (Id. at 16). Petitioner did not alert the Arizona Court of Appeals that these "factual" statements were meant to support a federal constitutional claim of IAC either by associating the claimed "facts" with her federal Sixth Amendment rights or by citing to federal case law. In the "legal argument" section of her petition for review to the Arizona Court of Appeals, Ms. Crenshaw-Bruce merely asserted generally that defense and appellate counsel are responsible for reviewing a client's entire record in order to identify the most promising claims for relief, and concluded without elaboration that trial counsel Mr. Chiang, sentencing counsel Valerie Llewellyn, and appellate counsel Carlos Daniel Carrion had provided ineffective assistance of counsel. (Doc. 14-7 at 19) Petitioner did not signal, let alone make explicit, that her claims of ineffectiveness of counsel were pursuant to federal law.
Petitioner failed to exhaust her claims of ineffective assistance of counsel in her petition for review to the Arizona Court of Appeals because she did not make explicit any federal basis for those claims. "[A] petitioner must make the federal basis of the claim explicit either by citing federal law or the decisions of federal courts, even if the federal basis is 'self-evident' or the underlying claim would be decided under state law on the same considerations that would control resolution of the claim on federal grounds." Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), as modified by 247 F.3d 904 (9th Cir. 2001) (internal citations omitted). "To exhaust [her] claim, [Petitioner] must have presented [her] federal, constitutional issue before the Arizona Court of Appeals within the four corners of [her] appellate briefing." Castillo v. McFadden, 399 F.3d 993, 1000 (9th Cir. 2005) (citing Baldwin v. Reese, 541 U.S. 27, 32 (2004) ("ordinarily a state prisoner does not 'fairly present' a claim to a state court if that court must read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in a case, that does so.")) Additionally, the court of appeals "was not required to review the parties' trial court pleadings to see if it could discover for itself a federal, constitutional issue." Castillo, 399 F.3d at 1000.
H. Petitioner does not establish cause and prejudice or a fundamental miscarriage of justice to excuse her defaults
As noted supra, the Court may excuse a procedurally defaulted claim if Petitioner can demonstrate either: (1) cause for the default and actual prejudice, or (2) a miscarriage of justice. Schlup, 513 U.S. at 321; Coleman, 501 U.S. at 750; Murray v. Carrier, 477 U.S. 478, 495-96 (1986). In best light to Petitioner in construing her Petition, Petitioner asserts that her failure to assert the claims she raises in Grounds 1 through 6 to the Arizona Court of Appeals on direct appeal was the result of ineffective representation by her appellate counsel. Petitioner may argue ineffectiveness of her appellate counsel for failure to "properly preserve the claim[s] for review in state court" to excuse procedural default of those claims. Murray, 477 U.S. at 488-89. To succeed, however, Petitioner also must have presented her specific argument of ineffectiveness of appellate counsel to "the state courts as an independent claim before it may be used to establish cause for a procedural default." Id. at 489.
Petitioner merely stated in her petition for review to the Arizona Court of Appeals in her PCR action that appointed appellate defense counsel is required to "review the entire record and pick the most promising claims of relief[.]" (Doc. 14-17 at 19) This statement is not adequately specific to alert the state court of appeals that Petitioner had presented the argument that her appellate counsel was ineffective for failure to raise the specific claims she now addresses in Grounds 1 through 6 of her federal habeas petition. In addition, as noted, nowhere in her petition for review in her PCR action does Petitioner specifically assert a federal ineffective assistance of counsel claim. (Doc. 14-17 at 2-21) Accordingly, Petitioner did not exhaust a claim of IAC by her appellate counsel in the state courts, and therefore fails to provide cause for her default of the claims asserted in Grounds 1 through 6.
The only excuse Petitioner offers respecting the default of her Ground 7 claims of IAC of trial and appellate counsel is that "Appellant['s] defense attorney on direct appeal did not include all the facts I wanted him to present." (Doc. 1 at 33) As Respondents correctly conclude, the first opportunity for Petitioner to raise claims of ineffective assistance of either trial or appellate counsel was in her PCR action. See Murdaugh v. Ryan, 724 F.3d 1104, 1123 (9th Cir. 2013) (citing State ex rel. Thomas v. Rayes, 153 P.3d 1040, 1044 (Ariz. 2007) ("a defendant may bring ineffective assistance of counsel claims only in a Rule 32 post-conviction proceeding[.]")) Because Petitioner represented herself when she filed her revised petition for review in her PCR action, her failure to properly present and exhaust the Ground 7 ineffective assistance of counsel claims in her PCR action could not have been the fault of her counsel on direct appeal.
In Martinez v. Ryan, 566 U.S. 1 (2012), the United States Supreme Court recognized "limited circumstances" in which attorney error in collateral proceedings may sometimes establish cause for the default of a claim of ineffective assistance of trial counsel. Id. at 9. The Court recognized a "narrow exception" to the rule that there is no right to counsel in collateral proceedings established in Coleman, that is, that "[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial." Id. Petitioner does not argue that Martinez applies to her case, and the undersigned concludes that it does not. Petitioner makes no claim of ineffective assistance of counsel against her appointed counsel in her PCR action, who in any event was involved only to the extent that he moved to withdraw Petitioner's notice of PCR without prejudice to her ability to re-file once her direct appeal was concluded. (Doc. 14-10 at 33) Moreover, the Supreme Court has expressly declined to extend the narrow exception established in Martinez to encompass defaulted claims of ineffective assistance of appellate counsel. Davila v. Davis, 137 S.Ct. 2058, 2062-63 (2017).
Because Petitioner is unable to establish cause for the procedural default of her grounds for relief, her remaining avenue to excuse the default of her claims is to demonstrate actual innocence. The miscarriage of justice exception to procedural default "is limited to those extraordinary cases where the petitioner asserts his [actual] innocence and establishes that the court cannot have confidence in the contrary finding of guilt." Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir. 2008) (emphasis in original). To pass through the actual innocence/Schlup gateway, a petitioner must establish his or her factual innocence of the crime and not mere legal insufficiency. See Bousley v. U.S., 523 U.S. 614, 623 (1998); Jaramillo v. Stewart, 340 F.3d 877, 882-83 (9th Cir. 2003). "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence." Schlup, 513 U.S. at 324. See also Lee v. Lampert, 653 F.3d 929, 945 (9th Cir. 2011); McQuiggin v. Perkins, 569 U.S. 383, 399 (2013) (explaining the significance of an "[u]nexplained delay in presenting new evidence"). A petitioner "must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." Id., (quoting Schlup, 513 U.S. at 327)). Because of "the rarity of such evidence, in virtually every case, the allegation of actual innocence has been summarily rejected." Shumway v. Payne, 223 F.3d 982, 990 (9th Cir. 2000) (citing Calderon v. Thomas, 523 U.S. 538, 559 (1998)). Petitioner does not argue actual innocence to excuse default of her claims. Moreover, a review of the record indicates that Petitioner has not presented new reliable evidence. Further, the record does not support the conclusion that failure to consider the procedurally defaulted claims would result in a fundamental miscarriage of justice.
IV. CONCLUSION
Each of the claims Petitioner asserts in her Petition is procedurally defaulted. Petitioner has not made a showing of cause for her defaulted claims. Moreover, Petitioner does not assert, and the record does not support, a claim of actual innocence to excuse default. The undersigned recommends that the Petition be denied and dismissed with prejudice and that a certificate of appealability also be denied.
Accordingly,
IT IS 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 be denied because dismissal of the Petition is justified by a plain procedural bar and reasonable jurists would not find the procedural ruling debatable.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. The parties shall have fourteen days within which to file responses to any objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determination of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed. R. Civ. P. 72.
Dated this 2nd day of November, 2018.
/s/_________
Honorable Deborah M. Fine
United States Magistrate Judge