Gwen v. Shinn

Full title: Gerald Vaughn Gwen, Petitioner v. David Shinn, et al., Respondents.

Court: United States District Court, District of Arizona

Date published: Apr 10, 2024

CV-22-8140-PCT-JAT (JFM) (D. Ariz. Apr. 10, 2024)

Opinion

CV-22-8140-PCT-JAT (JFM)

04-10-2024

Gerald Vaughn Gwen, Petitioner v. David Shinn, et al., Respondents.

James F. Metcalf, United States Magistrate Judge

REPORT & RECOMMENDATION

James F. Metcalf, United States Magistrate Judge

I. MATTER UNDER CONSIDERATION

Petitioner has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). The Petitioner's Petition is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.

II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND

A. FACTUAL BACKGROUND

The following summary of the facts is drawn from the decision of the Arizona Court of Appeals in disposing of Petitioner's direct appeal.

¶2 On November 2, 2015, Gwen rented a Jeep in Sedona and agreed to return it by 5:45 p.m. the same day. He told the rental agent he wanted to show clients around the area. When Gwen had not returned the vehicle by the next morning, the rental agency owner contacted the police.

¶3 Later that day, police searched for Gwen at his last known address, and when they couldn't find him, they entered the Jeep in a national stolen-vehicle database. Gwen was apprehended when he drove the Jeep through a U.S. Border Patrol checkpoint in Sierra Blanca, Texas, an approximately eight-hour drive from Sedona. The rental decals had been removed from the Jeep's windshield, front fenders, and right taillight. The rental business's spare tire cover had also been removed. When the owner recovered the Jeep, she found cleaning supplies, board games, and a trunk with books, photo

albums, and news clippings inside the vehicle.

(Exh. R, Mem. Dec. 3/1/22 at ¶¶ 2-3.) (Exhibits herein are referenced as follows: to the Petition (Doc. 1) as “Pet. Exh. at ”; to the Answer (Doc. 12), as “Exh. __”; and to the Reply (Doc. 26) as Exh. R __.”)

B. PROCEEDINGS AT TRIAL

Petitioner was indicted in Yavapai County Superior Court on May 26, 2017, on charges of fraudulent schemes, car theft with intent to deprive, and car theft by conversion. (Exh. A, Indictment.) Petitioner was held without bail because he committed the instant offenses while on release for other felony charges. (Exh. B, Motion to Hold; Exh. R, Mem. Dec. 3/1/22 at ¶ 4; Exh. C, ME 7/6/17.) Petitioner waived his right to an attorney and represented himself at trial with assistance from advisory counsel. (Exh. R., Mem. Dec. 3/1/22 at ¶ 4.)

Petitioner filed with the trial court a state “Writ of Habeas Corpus” (Exh. H) arguing the Indictment was duplicitous. The trial court denied the motion as untimely, and as without merit based on the lack of duplicity. (Exh. I, Order 5/15/20.)

Finally, in January 2021, Petitioner proceeded to a jury trial and was convicted as charged. (Exh. M., ME 1/8/21 at 3.) On February 26, 2021, he was sentenced to concurrent prison terms, the longest of which was 10 years. (Exh. N, Sentence.)

During the course of proceedings in the trial court, Petitioner filed a Petition for Special Action (Exh. R-L), challenging the trial court's denial of various motions. The Arizona Court of Appeals declined to exercise jurisdiction. (Exh. R-N, Order 6/11/20.) Petitioner sought review by the Arizona Supreme Court (Exh. R-R), which denied review. (Exh. R-P, Order 10/13/20.)

C. PROCEEDINGS ON DIRECT APPEAL

Petitioner filed a direct appeal. Appointed counsel was unable to find a non-frivolous issue for review and filed an Opening Brief (Exh. P) pursuant to Anders v. California, 386, U.S. 738 (1967) and related state authorities. Petitioner then filed a “Supplemental Brief” (Exh. P) raising claims of malicious prosecution, denial of preliminary hearing, denial of right to bail, denial of right to speedy trial, insufficiency of the evidence, suppression of evidence, prior bad acts evidence, denial of a fair trial, and sentencing errors. In a Memorandum Decision issued March 1, 2022 (Exh. R) the Arizona Court of Appeals found no merit to the asserted claims, reviewed the record for “reversible error” and found none, and affirmed Petitioner's convictions and sentences. Petitioner filed a Motion for Reconsideration (Exh. R-B), which was denied on March 21, 2022. (Exh. R-O, Order 3/21/22.)

Petitioner filed a Petition for Review by the Arizona Supreme Court (Exh. S), and on July 8, 2022, the Arizona Supreme Court summarily denied review (Exh. T). The Arizona Court of Appeals issued its Mandate on August 8, 2022 (Exh. U).

D. PROCEEDINGS ON POST-CONVICTION RELIEF

On June 28, 2021 (while his direct appeal was pending), Petitioner commenced his first post-conviction relief (PCR) proceeding by filing a PCR Notice (Exh. V) asserting claims under Ariz. R. Crim. Proc. 32.1(a), (e) & (h). Petitioner did not seek counsel, and none was appointed. (Exh. W, Order 7/19/21.)

The PCR court dismissed the claims asserted under Rule 32.1(a) (constitutional violations) as premature because his direct appeal was still pending and set a deadline for a PCR petition. (Exh. W, Order 7/19/21.)

On September 17, 2021 (almost six months prior to the March 1, 2022, decision in his direct appeal) Petitioner filed his pro per PCR Petition (Exh. X), again arguing various constitutional violations under Rule 32.1(a), an illegal sentence under Rule 32.1(c), incorrect calculation of credit for time served under Rule 32.1(d), and insufficient evidence to support the aggravated sentence.

In a ruling filed January 25, 2022 (two months before the decision on direct appeal) the PCR court found the claims were all raised in Petitioner's still pending direct appeal, and thus precluded under Rule 32.2(a)(1) (claims precluded when “still raiseable on direct appeal”).¹ Consequently, the petition was denied. (Exh. AA, Order 1/25/22.)

1 The PCR court described the state's argument of preclusion as being based on “Rule 32.2(1).” (Exh. AA Order 1/25/22 at 1.)

Although in his Petition Petitioner asserts seeking appellate court review in this proceeding (Doc. 1 at 6, ¶ 11(d)(1), the undesigned finds that Petitioner did not seek review of the trial court's decision. (Answer, Doc. 12 at 10; Petition, Doc. 1 at 4-5 (identifying appellate court filings).)

E. PRESENT FEDERAL HABEAS PROCEEDINGS

Petition - Petitioner, presently incarcerated in the Red Rock Correctional Center in Eloy, Arizona, commenced the current case by filing his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on July 28, 2022 (Doc. 1). Respondents construe the eight major grounds of the Petition as asserting the following 34 ground for relief:

1. Malicious prosecution in violation of the Fifth and Fourteenth Amendments where: (a) the prosecution was undertaken in bad faith; (b) the indictment was defective; (c) the prosecutor knew or should have known the evidence before the grand jury was insufficient to show probable cause; (d) the indictment contained duplicitous charges; (e) the indictment failed to provide adequate notice, was misleading and/or failed to sufficiently state the conduct for which he was charged; and (f) insufficient evidence supported his conviction.

2. A denial of due process in the trial court's evidentiary rulings because: (a) the court and prosecutor failed to conduct “evidentiary procedures” on admissibility; (b) inadmissible evidence was admitted; (c) a copy of the car rental agreement was admitted; and (d) police failed to disclose the original rental agreement in violation of Brady v. Maryland, 373 U.S. 83 (1963).

3. His right to a speedy trial was violated when the trial court vacated his trial dates in ways not authorized by state law in violation of his Fourteenth Amendment rights,” by applying time credits related to COVID-19 under an executive order that did not apply to his trial.

4. He was denied his Eighth Amendment right to bail.

5. He was denied due process because he did not receive a preliminary hearing.

6. He was denied a Fourteenth Amendment right “to be free from unfair prejudice” where: (a) other-act evidence was improperly admitted during trial; (b) the “prosecutor's conduct deprived [Gwen] of his right to a jury verdict of guilt beyond a reasonable doubt”; (c) there was instructional error regarding other-act evidence.

7. He was denied his Sixth Amendment confrontation right because the State did not call every witness in its disclosure statements at trial.

8. He was denied due process and fundamental fairness because:

(a) the State failed to timely disclose all evidence and withheld evidence in violation of Brady;

(b) the trial court abused its discretion in (i) denying “access to evidentiary procedures”; (ii) denying “important pretrial motions”; (iii) suspended the right to habeas corpus; (iv) interfered with a change of judge; and (v) interfered with “the orderly delivery of U.S. mail”;

(c) the appellate courts' rulings denied him fundamental fairness when it: (i) denied special action jurisdiction; (ii) did not “adequately adjudicate all claims presented on direct appeal”; and (iii) the Arizona Supreme Court denied review of his petition for review without stating why;

(d) he is actually innocent; and

(e) the state court process was inadequate because it allegedly did not have a sufficient process to challenge the admissibility of evidence or correct erroneous legal rulings, and because appellate procedures did not entitle Gwen to an evidentiary hearing.

9. His Eighth Amendment right to be free from cruel and unusual punishment were violated when: (a) the trial court failed to decide sentencing issues; (b) the PCR court failed to adjudicate his constitutional claims; (c) his sentences violate double jeopardy because the indictment was duplicitous.

10. He was denied his right to a fair trial where: (a) the prosecutor called Gwen's expert to testify because the prosecutor “knew there exists no expert testimony to rebut”; and (b) the trial court abused its discretion allowing the expert witness to be called.

(See Answer, Doc. 12 at 2-5.) (See also Order 9/9/22, Doc. 5 at 2-3.) Petitioner does not object to this construction, and the undersigned adopts it, except as follows:

(a) The undersigned liberally construes Petitioner's Ground 1 as asserting a primary claim of malicious prosecution (designated herein as Ground 1), as well as the various subclaims denominated by Respondents as Grounds 1(a) through 1(f).

(b) As discussed hereinafter in Section III(B)(1)(c)(1), the undersigned reads the allegations in what is denominated as Ground 1(b) and 1(c) as a single claim, i.e., that the indictment was defective because the prosecutor knew or should have known the evidence before the grand jury was insufficient to show probable cause.

(c) As discussed hereinafter in Section IV(B)(1), the undersigned concludes Grounds 1(d) and 9(c) both raise double jeopardy claims and are addressed together.

(d) The undersigned discerns no Ground 1(f) (insufficient trial evidence to support conviction). Ground 1's discussions of insufficient evidence related solely to satisfying the “probable cause to hold Defendant for trial” (Petition, Doc. 1 at 6) standard before the grand jury, not the beyond-a-reasonable-doubt standard before the trial jury. This claim actually stated is the same claim raised in Ground 1(b)/1(c), and these claims are addressed together.

(e) As discussed hereinafter in Section IV(B)(2), Grounds 2(b) and 2(c) both assert a due process claim based on the admission of copies of the rental agreement and are addressed together.

Response - On December 5, 2022, Respondents filed their Answer (Doc. 12). Respondents argue the majority of his claims are procedurally defaulted, assert non- cognizable claims, or are insufficiently pled. Respondents answer on the merits as to Petitioner's challenges to the grand jury proceedings, denial of bail, actual innocence, double jeopardy, defective indictment, insufficient evidence, Brady violations, and confrontation rights.²

2 Petitioner filed a Motion for Sanctions (Doc. 19) seeking to strike that Answer for failure to timely serve it and for a grant jof summary judgment. The Motion was denied. (Order 8/15/23, Doc. 39.) Petitioner filed an Objection (Doc. 42) to that Order, which was overruled. (Order 9/22/23, Doc. 55.)

Reply - Because Respondents relied upon a failure to properly exhaust state remedies, the Court set a date certain for a reply and directed:

(C) Any assertions in the reply that Petitioner's claims were fairly presented to the state appellate courts must be supported by specific references to the location of the presentation of the claim, i.e. by exhibit number/letter in the record of this proceeding, document name, date of filing with the state court, page(s)/ line number(s) (e.g. “Exh. A, Petition for Review, filed 1/1/15, at 1/17 - 2/23”).

(D) Any assertions in the reply that Petitioner's claims addressed on the merits by the state courts meet the standards of 28 U.S.C. § 2254(d) must be supported by: the specific error under U.S. Supreme Court law; and/or the erroneous factual determinations and why the state court determination of those facts was unreasonable in light of the evidence before the state courts.

(Order 12/27/22, Doc. 20 at 1-2.)

On January 30, 2023, Petitioner filed a Reply (Doc. 26). Petitioner argues Respondents' Answer is deficient and amounts to a default, his claims are exhausted and cognizable, Respondents defenses are improperly asserted, and Respondents misrepresent his PCR proceedings.

Supplement re Merits of Ground 3 -The undersigned tentatively concluded that Ground 3 was actually addressed by the Arizona Court of Appeals, and therefore the Court ordered Respondents to supplement their answer to address the merits of Ground 3. (Order 5/9/23, Doc. 30.)³

3 Petitioner objected (Doc. 31) to that Order, and the objection was overruled (Order 7/10/23, Doc. 36). Petitioner then sought reconsideration (Doc. 37) by the District Judge and filed a Notice of Interlocutory Appeal. Reconsideration was denied. (Order 9/22/23, Doc. 55.) The Interlocutory Appeal was dismissed on January 19 2024. (U.S.Ct. App. Circ. 9, Order 1/19/24, Doc. 60.)

Respondents filed their Supplemental Response (Doc. 32) addressing the merits of Ground 3, and arguing the state court's merits decision survives deferential review under 28 U.S.C. § 2254(d), and Petitioner fails to show prejudice from any delay.

Petitioner filed his Supplemental Reply (Doc. 35), arguing that the Supplemental Response, like the Answer, was inadequate for failing to address the merits of Ground 3, and misstates Arizona's speedy trial rules. He argues his federal Speedy Trial right was violated when the trial court vacated his May 5, 2020, trial date based on COVID-19, which merely authorized but did not mandate continuances.

Petitioner also argues in his Supplemental Reply that his Speedy Trial right was violated when he was forced to seek an extension of the October 6, 2020, trial date by failing to timely address his requests for expert witnesses. (Supp. Reply, Doc. 35 at 6-8.)

Supplement of Record - Upon review, the undersigned tentatively concluded, as discussed hereinafter, that the decision of the Arizona Supreme Court on Ground 3 was contrary to Supreme Court law, and thus had to be addressed de novo, but Respondents had apparently failed to provide all of the briefs on direct appeal. Respondents were ordered to supplement the record with briefs required by Rules Governing § 2254 Proceedings (2254 Rules), and with records “showing the dates and/or length and reasons for delays in the commencement of trial in Petitioner's case.” (Order 8/15/23, Doc. 38.)

Respondents filed their supplements to the Record (Doc. 40) on August 17, 2023.⁴Plaintiff filed an Objection (Doc. 41) arguing that transcripts had not been provided for some proceedings, irrelevant records were included, and the Notice of supplementing included argument with misrepresentations. The Court found Petitioner failed to support most of his arguments, but observed that argument in the Notice was not authorized and would not be considered, and Respondents had failed to provide the certification of available transcripts required by 2254 Rule 5(c). Respondents were ordered to comply. (Order 8/31/23, Doc. 45.)

4 Respondents asserted that all briefs required by Rule 5(d) had already been provided. (Doc. 40 at 4.) Given the mandates of Rule 5(d)(2), and the lack of any prosecution appellate briefs in the record in this case, this assertion amounts to an affirmative representation by Respondents that the prosecution filed no briefs of any kind in Petitioner's direct appeal.

Respondents complied on September 5, 2023, providing their Notice (Doc. 46) identifying hearings recorded but not transcribed. Petitioner objected (Doc. 52) to the Notice on various grounds, all of which were overruled. (Order 9/18/23, Doc. 53.)⁵

5 Petitioner filed an Objection (Doc. 57) to this Order (Doc. 53), which was denied. (Order 10/31/23, Doc. 59.)

No Evidentiary Hearing - Following renewed service of the Answer, Petitioner was given through January 20, 2023 “to file any motions to amend, motions to supplement, motions to stay, motions for evidentiary hearing, motions to expand the record, and the like seeking to expand the petition, or the record herein.” (Order 12/27/22, Doc. 20.) Petitioner did not timely file such motions. On April 10, 2023, Petitioner filed a Motion for Evidentiary Hearing (Doc. 27) which was denied as untimely and without merit. (Order 8/15/23, Doc. 39.)⁶

6 Petitioner filed an Objection (Doc. 42) to the Order (Doc. 39), which was denied. (Order 9/22/23, Doc. 55.)

Subsequently, the Court ordered Respondents to supplement regarding Ground 3, and gave Petitioner through September 22, 2023 (14 days from service of Respondents' Supplement (Doc. 46) on Ground 3) to file “any motion for evidentiary hearing, motion to expand the record, and the like, seeking to expand the briefs or the record herein regarding Ground 3 of the Petition.” (Order 9/1//23, Doc. 45.) Petitioner did not file any such motions.

III. ATTACKS ON ANSWER

A. SUFFICIENCY OF RECORD PROVIDED

In his Reply, Petitioner argues Respondents have defaulted by failing to comply with the mandate regarding transcripts in Rule 5, Rules Governing § 2254 Cases, which provides:

(c) Contents: Transcripts. The answer must also indicate what transcripts (of pretrial, trial, sentencing, or post-conviction proceedings) are available, when they can be furnished, and what proceedings have been recorded but not transcribed. The respondent must attach to the answer parts of the transcript that the respondent considers relevant. The judge may order that the respondent furnish other parts of existing transcripts or that parts of untranscribed recordings be transcribed and furnished. If a transcript cannot be obtained, the respondent may submit a narrative summary of the evidence.

Petitioner argues that, although they have produced various transcripts, Respondents have failed to provide or address the transcript of the oral argument in his PCR proceeding. (Reply, Doc. 26 at 1-2.) Petitioner proffers nothing to show that there was a hearing in the PCR proceedings that was recorded. The PCR court issued two written rulings, neither of which reflect any hearing being held. Rule 5 does not mandate that respondents identify the lack of transcript for every possible hearing which was not recorded, only those hearings which were recorded.

The Court had concluded Respondents' Answer failed to provide required briefs on direct appeal. (Order 8/15/23, Doc. 38.) Respondents subsequently supplemented the record (Doc. 40). The Court also concluded that Respondents had failed to identify recorded but not transcribed proceedings. (See Order Oder 8/31/23, Doc. 45.) Respondents subsequently identified those records. (Doc. 46.)

B. SUFFICIENCY OF ANSWER

Petitioner's Reply presents a wide variety of attacks on the answer as prolix, repetitive, redundant, fraudulent, false, etc. Petitioner proffers few actual examples. Where he does provide specifics, the undersigned finds the Answer clear and sufficiently supported to meet at least the standards under Fed.R.Civ.P. 11(a). (Reply, Doc. 26 at 229.) Consequently, these arguments are not individually addressed except as discussed in this Section III, and in the course of addressing the merits of the claims and defenses in the remaining portions of Section IV of this Report & Recommendation.

Moreover, assuming there were insufficient or improper arguments (or unprovided records), Petitioner offers nothing to suggest that a proceeding by default would be warranted. The 2254 Rules do not authorize a default proceeding. Under Civil Rule 55(a), entry of default, and proceeding by judgment by default is possible. However, the Federal Rules of Civil Procedure do not apply wholesale to habeas proceedings. Rather, those rules "may be applied, when appropriate." Rules Governing § 2254 Cases, Rule 12.

A default judgment is a sanction, and a sanction should be proportionate to a wrong. Releasing a wrongfully convicted prisoner or imposing on the state the cost and uncertainty of retrying him, perhaps many years after the offense, is apt to be a disproportionate sanction for the wrong of failing to file a timely motion for an extension of time. This thinking informs the principle that default judgments are disfavored in habeas corpus cases. Habeas corpus is a strong remedy and is therefore reserved... for serious rather than technical violations of rights. The prompt disposition of petitions for habeas corpus is highly desirable, especially given the writ's historic function of protecting the citizen against arbitrary detention, and at some point delay in the disposition of a petition for writ of habeas corpus caused by the government's wilfully refusing to file a response might infringe the petitioner's right to due process of law. Yet even when the case is nearing that point, the district court, rather than entering a default judgment, ordinarily should proceed to the merits of the petition, since if the petition has no merit the delay in disposing of it will in the usual case have caused no prejudice to the petitioner.

Blietner vs. Wellborne, 15 F.3d 652 (7th Cir. 1994). See also Gordon v. Duran, 895 F.2d 610, 612 (9th Cir. 1990) (“The failure to respond to claims raised in a petition for habeas corpus does not entitle the petitioner to a default judgment.”)

Even assuming default procedures are available in a habeas case, Petitioner does not contend something as significant as a failure to respond or appear, merely an alleged failure to identify a transcript and purportedly deficient or improper arguments. Even if such failure were actually shown by Petitioner, the appropriate remedy for such a failure would be to order the deficiencies to be cured, not granting habeas by default. Indeed, even in ordinary civil cases, a default is only justified for a failure to “plead or otherwise defend,” Fed.R.Civ.P. 55(a), not merely defending negligently or even improperly. Cf. Ringgold Corp. v. Worrall, 880 F.2d 1138, 1141 (9th Cir. 1989) (finding failure to defend where party had filed pleading and engaged in defense, but failure to show as ordered). But see GlobalTranz Enterprises Inc. v. Shippers Choice Glob. LLC, CV-16-04038-PHX-ROS, 2017 WL 2841224, at *1 (D. Ariz. June 2, 2017) (discussing other Ninth Circuit authority limiting default to failure to plead).

C. MULTIPLICITY / INCONSISTENCY OF DEFENSES

Petitioner argues that Respondents' affirmative defenses are duplicitous and inconsistent, citing Russell v. Rolfs, 893 F.2d 1033, 1038 (9^th Cir. 1990). (Reply, Doc. 26 at 20.) This argument is without merit.

Federal Rule of Civil Procedure 8 governs the presentation of claims and defenses and provides: “A party may state as many separate claims or defenses as it has, regardless of consistency.” Fed.R.Civ.P. 8(d)(3).

Russell is inapposite because it did not involve merely the presentation of inconsistent defenses. Rather it precluded reliance on appeal on a defense (procedural default) inconsistent from the defense asserted in the trial court (failure to exhaust, with remedies still available), upon which the judgment of dismissal had been obtained. The court held that because of the prior judgment, the respondents were judicially estopped from asserting a contrary position on appeal. Here, there is no intervening judgment on Respondents' defenses to trigger judicial estoppel.

D. COMPLEXITY

Petitioner complains the Answer is “prolix” and unnecessarily repetitive and confusing. He suggests Respondents simply obfuscate.

As can be seen by the length and complexity of this Report and Recommendation, the brevity and ease with which a Petitioner can cast the husk of a claim is not indicative of the complexities that claim raises. Unlike petitioners, respondents and the courts generally do not have the luxury of dealing in husks, but must wade into the issues and address them, seed and husk, thoroughly and precisely.

Moreover, state prisoner habeas is routinely recognized as a complex, if not byzantine, field involving competing policies of preserving constitutional protections while granting comity to state court criminal judgments, requiring analysis of issues on the basis of state criminal and procedural laws, federal constitutional principles, and the statutory and judicially-created limits on habeas relief and claims. “[N]o one in a position to observe the functioning of our byzantine federal-habeas system can believe it an efficient device for separating the truly deserving from the multitude of prisoners pressing false claims.” McQuiggin v. Perkins, 569 U.S. 383, 411-12 (2013) (Scalia, J., dissenting).

If Petitioner is frustrated by the energy, time, words and pages expended in the process, all to no effect, he can rest assured that frustration is shared by most habeas litigants (on both sides) and the courts. And it is particularly so where, as here, a petitioner has asserted dozens of separate claims (in this instance, some 3 dozen).

IV. CONSIDERATION OF CLAIMS

A. COGNIZABLE CLAIMS

Respondents argue that a large portion of Petitioner's claims are not cognizable on habeas because they are either state law claims, challenge grand jury proceedings, challenge bail decisions, or assert actual innocence.⁷ Petitioner replies that the cognizability of his claims was resolved under 2254 Rule 4, this court has jurisdiction over due process claims and claims based on denial of fundamental fairness. (Reply, Doc. 26 at 18.)

7 Petitioner appears to argue that cognizability is a matter of state law, and thus subject to the restrictions on procedural default/bar. (Reply, Doc. 26 at 22.) To the contrary, what is and is not a cognizable claim in a federal habeas is controlled solely by federal law.

Petitioner's reliance on the Court's service order is misplaced. The 2254 Rules require:

If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner. If the petition is not dismissed, the judge must order the respondent to file an answer. . .

2254 Rule 4. Thus, the Court's service order is not required to be based on a claim-by-claim evaluation of the Petition, or even a determination of merit. Rather, service is ordered unless the Petitioner is clearly not entitled to relief. See also 28 U.S.C. § 2243 (“unless it appears from the application that the applicant or person detained is not entitled”). At most, the Court's enumeration of the claims is a finding of the nature of the claims asserted, not whether they are cognizable, or meritorious.

1. State Law Claims

Respondents argue Petitioner's Grounds 2(a), 2(b), 2(c), 3, 5, 6(a), 6(c), 8(b)(i), 8(b)(ii), 8(b)(iii), 8(b)(iv), 8(c)(i), 8(c)(iii), 9(b), 10(b) assert non-cognizable state law claims. (Answer, Doc. 12 at 33-43.)

To the extent that these claims assert only state law claims, they are not cognizable. A state prisoner is entitled to habeas relief under 28 U.S.C. § 2254 only if he is held in custody in violation of the Constitution, laws or treaties of the United States. Federal habeas relief is not available for alleged errors in the interpretation or application of state law. Estelle v. McGuire, 502 U.S. 62 (1991). Moreover, a state court determination of state law is not subject to review in a federal habeas court. Bains v. Cambra, 204 F.3d 964, 971 (9th Cir. 2000) ("federal court is bound by the state court's interpretations of state law").

Here, however, this Court must liberally construe Petitioner's pro se Petition, applying whatever law or legal theory that is fairly suggested by the facts alleged and not contrary to the theories actually advanced. Laws v. Lamarque, 351 F.3d 919, 924 (9th Cir. 2003); Blaisdell v. Frappiea, 729 F.3d 1237, 1242 (9th Cir. 2013); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); Dluhos v. Strasberg, 321 F.3d 365, 373 (3rd Cir. 2003).

Respondents argue that Ground 2 merely asserts a series of violations of state evidentiary law. However, Petitioner plainly argues that these violations of state law amounted to a violation of his federal due process rights. (Petition, Doc. 1 at 8.)

It is true that a state may violate its own law without violating the United States Constitution. Gryger v. Burke, 334 U.S. 728, 731 (1948).

We cannot treat a mere error of state law, if one occurred, as a denial of due process; otherwise, every erroneous decision by a state court on state law would come here as a federal constitutional question.

Id., 334 U.S. at 731. But that does not mean that no state law violation can form the basis of a federal claim.

Indeed, the Supreme Court has held that an error of state law may be “sufficiently egregious to amount to a denial of equal protection or of due process of law guaranteed by the Fourteenth Amendment.” Pully v. Harris, 465 U.S. 37, 41 (1984). To sustain such a due process claim founded on state law error, a habeas petitioner must show that the state court "error" was "so arbitrary and fundamentally unfair that it violated federal due process." Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991) (quoting Reiger v. Christensen, 789 F.2d 1425, 1430 (9th Cir.1986)). To receive review of what otherwise amounts to nothing more than an error of state law, a petitioner must argue “not that it is wrong, but that it is so wrong, so surprising, that the error violates principles of due process”; that a state court's decision was “such a gross abuse of discretion” that it was unconstitutional. Brooks v. Zimmerman, 712 F.Supp. 496, 498 (W.D.Pa.1989).

Petitioner may ultimately fail to establish the necessary underlying facts that the state law errors in his case rose to that level, or even that any errors occurred. But that does not alter the nature of the claim he raises, namely that errors occurred which did amount to a denial of due process under the Federal Constitution. Respondents confuse the viability of the claim for the source of the claim.⁸

8 Respondents rely broadly on the Ninth Circuit's assertion in Langford v. Day that a petitioner “may not, however, transform a state-law issue into a federal one merely by asserting a violation of due process.” Langford, 110 F.3d 1380, 1389 (9th Cir. 1996). That statement must be read not as an assertion that state law violations cannot never amount to a violation of due process, but rather an assertion that they do not always do so and something more than a violation must be shown. Indeed, the Langford court went on to evaluate whether “the state court proceedings [denied] Langford due process of law.” 110 F.3d at 1389.

Respondents argue that Ground 3 simply asserts a failure to use a state law required form for a continuance. To the contrary, Petitioner plainly asserts a speedy trial and due process violation in Ground 3. The claim may not be viable or even adequately supported by facts, but it is a federal claim.

Respondents argue Ground 5 only raises a violation of state law regarding preliminary hearings. Similarly, Petitioner plainly asserts in this ground a violation of his federal due process rights. (Petition, Doc. 1 at 14 (“11(A)”).)

Respondents argue Ground 6(a) only makes a broad assertion that the admission of other-act evidence was not permitted by the Constitution. Respondents argue Ground 6(c) asserts only a state law claim challenging the jury instruction on the other evidence. But Petitioner explicitly argues that he is making a “Fourteenth Amendment claim to be free from unfair prejudice.” (Petition, Doc. 1 at 15 (“11(B)”).) These are cognizable (if perhaps not viable in this case) constitutional claims. See Kipp v. Davis, 971 F.3d 939 (9th Cir. 2020) (addressing federal due process claim of denial of fair trial from admission of other act evidence); and Reno v. Davis, 46 F.4th 821, 841 (9th Cir. 2022) (constitutional error established where the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process).

Respondents argue that Petitioner's various claims in Grounds 8(b) and 8(c)(i) and (iii) assert only state law claims. While Petitioner certainly relies on state law to show the various errors decried in these grounds, Petitioner asserts that all of these errors “deprived him of right to ‘fundamental fairness' in violation of the due process clause.” (Petition, Doc. 1 at 20 (“11(G)”).) That is a cognizable, federal claim (although, as discussed hereinafter, as to Ground 8(c) not a cognizable habeas claim).

2. Pre-Trial Claims

a. Grand Jury Claims

Respondents argue that Grounds 1(b) (defective indictment), 1(c) (insufficient evidence), 1(d) (duplicity), and 1(e) (inadequate notice) assert non-cognizable challenges to the grand jury proceedings. (Answer, Doc. 12 at 40-42.) Petitioner does not reply.

The Fourteenth Amendment does not impose the requirement of indictment by grand jury upon the states. Hurtado v. California, 110 U.S. 516, 538 (1884). “Indictment by grand jury is not part of the due process guarantees of the Fourteenth Amendment that apply to state criminal defendants.” Jeffries v. Blodgett, 5 F.3d 1180, 1188 (9^th Cir. 1993).

Petitioner references a lack of probable cause. However, federal law makes no mandates in state prosecutions for a prior determination of probable cause to stand trial, whether by a grand jury indictment, Hurtado v. California, 110 U.S. 516 (1884) (no right under Fifth Amendment) and Gerstein v. Pugh, 420 U.S. 103, 125 (1975) (no right under Fourth Amendment), nor by a preliminary hearing, Lem Woon v. State of Oregon, 229 U.S. 586, 590 (1913).

At most state grand jury or preliminary hearing (and/or its associated complaint or information) processes are constitutionally relevant on habeas review only because, “[t]he Sixth Amendment guarantees a criminal defendant the fundamental right to be informed of the nature and cause of the charges made against him so as to permit adequate preparation of a defense.. .[t] his guarantee is applicable to the states through the due process clause of the Fourteenth Amendment.” Gautt v. Lewis, 489 F.3d 993, 1002-03 (9th Cir. 2007). The lack of required notice is the substance of Petitioner's claims in Grounds 1(d) (duplicity) and 1(e) (inadequate notice).

Apart from such notice requirement, however, Petitioner's challenges to the grand jury proceedings do not attack the propriety of his conviction or sentence. Habeas is a challenge to the propriety of the petitioner's detention. Here Petitioner's detention is based on his conviction and sentence, not on the findings of the grand jury. Cf. Vasquez v. Hillery, 474 U.S. 254 (1986) (finding racial discrimination in grand jury panel cognizable on habeas review). Thus, outside racial discrimination, any deficiencies in the grand jury proceedings are rendered harmless where a petit jury convicts. Lopez v. Riley, 865 F.2d 30, 33 (2d Cir. 1989) (finding noncognizable habeas challenges to state grand jury based on “sufficiency of the evidence, a failure to develop exculpatory evidence by the prosecutor, the presentation of prejudicial evidence and error in explaining the law”). See also United States v. Mechanik, 475 U.S. 66 (1986) (grand jury challenges not cognizable in federal habeas proceeding because rendered harmless by conviction by petit jury at trial); and Davis, et al, Grand Jury Matters, 16A Fed. Proc. L.Ed. § 41:181 (2024) (“It has been said that claims of deficiencies in state grand jury proceedings are generally not cognizable on federal habeas review, since any such deficiencies are rendered harmless by a petit jury conviction assessing the petitioner's guilt under a heightened standard of proof.”).⁹

9 It seems to the undersigned that the lack of merit of such claims is more a matter of harmlessness than cognizability. Nonetheless, the cited authorities refer to this is as a matter of cognizability.

Accordingly, Petitioner's claims of insufficient evidence before the grand jury in Grounds 1(b)/1(c)/1(f), his claim of malicious prosecution in Ground 1, and his claim of claim of a “bad faith” prosecution before the grand jury in Ground 1(a) (including allegations of a premature investigation, lack of probable cause to pursue indictment, use of perjured testimony at the grand jury, etc.) fail to state a cognizable claim for habeas relief.

b. Preliminary Hearing Claim

In Ground 5, Petitioner argues he was denied due process because he has denied his right under state law to a preliminary hearing. (Petition, Doc. 1 at 14 (“11(A)”).)

As discussed above, Petitioner has no federal constitutional right to a pretrial determination of probable cause by preliminary hearing (or by grand jury indictment). However, the essence of Petitioner's claim is that he was denied due process because the state failed to abide by its own grant of a right to a preliminary hearing.

In any event, any state law defect or denial of due process in the denial of a preliminary hearing did not result in Petitioner's conviction or sentence, and thus fails to state a cognizable habeas claim.

3. Bail Claim

Respondents argue Ground 4 (denial of bail) is not a cognizable claim because it challenges Petitioner's pretrial custody which has terminated, and not Petitioner's current custody which is pursuant to his conviction and sentence. (Answer, Doc. 12 at 42-43.) Petitioner does not reply.

Respondents argue that Petitioner's claim challenging the denial of bail is moot because Petitioner is no longer under custody of the pretrial detention order, citing Murphy v. Hunt, 455 U.S. 478, 481-82 (1982) (per curiam) and Medina v. People of State of Cal., 429 F.2d 1392, 1393 (9th Cir. 1970) (per curiam). However, a mootness question only arises once it is determined that the court had at a prior time jurisdiction over a petition. See e.g. Henry v. Lungen, 164 F.3d 1240, 1241 (9th Cir. 1999) (distinguishing between mootness resulting from release from custody pendente lite, and lack of jurisdiction when release occurred prior to filing). In both Murphy and Medina, the defendant had filed his action prior to conviction, while still in custody under the pretrial detention order, which was no long operable upon entry of the subsequent conviction.

Rather, in this instance, it is the “in custody” requirement that precludes jurisdiction over Petitioner's bail claim. Pursuant to 28 U.S.C. § 2254(a), federal courts may “entertain an application for a writ of habeas corpus” only on behalf of a person who is “in custody pursuant to the judgment of a State court.” This “in custody” requirement has been interpreted to mean that federal courts lack jurisdiction over habeas corpus petitions unless the petitioner is “under the conviction or sentence under attack at the time his petition is filed.” Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (per curiam). Here, Petitioner's custody under the pretrial detention order had terminated upon his conviction. Thereafter, he has been in custody only under the conviction and sentence. It was during that ongoing post-conviction custody that Petition filed the instant petition.

Thus, this Court has no jurisdiction over Petitioner's claim challenging his detention under the pretrial detention order.

4. Non-Trial Court Procedures Claims

Respondents seem to argue (at least in part) that Petitioner's claim in Ground 9(b) (errors in the PCR proceeding) is not cognizable because it is based on state law. But Petitioner plainly casts this claim as one under the “Eighth and Fourteenth Amendment.”

But Respondents also argue PCR errors are in any event not cognizable. Indeed, regardless whether Petitioner relies upon due process, cruel and unusual punishment, or some other federal legal theory, errors in a PCR proceeding are not cognizable in a habeas proceeding because such errors do not of themselves implicate the validity of the Petitioner's custody, i.e. his conviction and sentence. Indeed, by definition such claims only challenge procedures occurring after the conviction and sentence are imposed.

A habeas petition must allege the petitioner's detention violates the constitution, a federal statute, or a treaty. Whether errors in a state post-conviction review proceeding are addressable through federal habeas corpus is an issue of first impression in this circuit. Four circuits have held they are not. Only one circuit has held to the contrary.

We join the majority and affirm the district court's holding that a petition alleging errors in the state post-conviction review process is not addressable through habeas corpus proceedings.

Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989).¹⁰

10 Arguably, taken literally as a complete bar to habeas based on PCR events, Franzen is wrongly decided. For example, a PCR court might improperly order a petitioner detained beyond the completion of his sentence, or modify the trial court's sentence to add time for a charge on which the petitioner had been acquitted. In such an instance it would be the PCR court's “judgment,” not that of the trial court, which was the cause of the detention. Here, however, Petitioner alleges no similar events, only that the PCR court erred in not reversing Petitioner's conviction or imposed sentence. If Petitioner is to obtain relief from the trial court imposed conviction or sentence (the basis for his Petition), he must show constitutional error in the trial court.

Petitioner seems to suggest that habeas jurisdiction extends beyond challenges to detention, including “(2) situations producing fundamental fairness; (3) error in state law that violates a constitutional protection; (4) constitutional infirmity in state court proceedings.” (Reply, Doc. 26 at 18.) But Petitioner posits no authority to support such contention, and the law is clear that habeas does not extend to generalized complaints of constitutional violations. "[T]he essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and that the traditional function of the writ is to secure release from illegal custody." Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). "According to traditional interpretation, the writ of habeas corpus is limited to attacks upon the legality or duration of confinement." Crawford v. Bell, 599 F.2d 890, 891 (9th Cir. 1979).

Thus, Petitioner's claim in Ground 9(b) is not simply of questionable merit, but fails to assert a challenge to his detention (i.e. his conviction or sentence), and thus is not a cognizable habeas claim.¹¹

11 That is not to say that a prisoner denied due process in a state proceeding is devoid of remedies. Rather, he may be able to bring a civil rights action under 42 U.S.C. § 1983. See e.g. Baker v. Ryan, 2010 WL 3168634, at *5 (D. Ariz. July 20, 2010), report and recommendation adopted, 2010 WL 3168640 (D. Ariz. Aug. 10, 2010) (construing habeas petition as civil rights complaint and finding claim of denial of due process in state habeas proceeding actionable under § 1983 but ultimately without merit).

For the same reason, Petitioner's claims in Ground 8(c), based on purported errors in the (i) special action proceeding, on (ii) direct appeal, and before (iii) the Arizona Supreme Court, fail to state a cognizable habeas claim. See Baker v. Ryan, CV-09-0333-PHX-SMM, 2010 WL 3168634, at *3 (D. Ariz. July 20, 2010), report and recommendation adopted, 2010 WL 3168640 (D. Ariz. Aug. 10, 2010) (applying Franzen to find claim of error in state habeas proceeding not cognizable).

Similarly, Petitioner's claim in Ground 8(d) that the processes in his PCR proceeding were defective (based on failure to consider his claim of innocence to permit consideration of barred claims) is not a cognizable claim.

Similarly, to the extent that Petitioner's claim in Ground 8(e) is based on insufficient processes in his special action, appellate, or PCR proceedings, it fails to adequately state a cognizable habeas claim.

5. Actual Innocence Claim

Respondents argue that Petitioner's claim of substantive actual innocence in Ground 8(d) is not a non-cognizable claim “because actual innocence has never been recognized as a freestanding claim entitling a petition for habeas relief.” (Answer, Doc. 12 at 43.)

However, Petitioner's claim in Ground 8(d) is not that he is, in fact, actually innocent, but that “the intermediate appellate court refused to consider whether Defendant's claim” of actual innocence had merit, “which was duty of appellate court to review de novo.” However, as discussed hereinabove in Section IV(A)(4), such a postconviction error claim is not a cognizable habeas claim.¹²

12 To the extent that Petitioner intended to assert the underlying direct claim of actual innocence, it remains unresolved whether a freestanding claim of actual innocence on newly discovery evidence is sufficient to justify relief under 28 U.S.C. § 2254. In Herrera v. Collins, a majority of the Supreme Court assumed, without deciding, that execution of an innocent person would violate the Constitution. 506 U.S. 390, 417 (1993). Still, the Herrera court observed that a related principle of denying relief solely on the basis of newly discovered evidence “is grounded in the principle that federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution -- not to correct errors of fact.” Id. at 400. The Court did not address such a claim by a non-capital offense defendant. The Ninth Circuit has acknowledged the door to such actual innocence claims has not been closed. “We have not resolved whether a freestanding actual innocence claim is cognizable in a federal habeas corpus proceeding in the non-capital context, although we have assumed that such a claim is viable.” Jones v. Taylor, 763 F.3d 1242, 1246 (9th Cir. 2014). Because such a claim has not been foreclosed, this Court must treat it as cognizable. Even so, such a claim is not adequately stated. Petitioner fails to point to any new reliable evidence to establish a probability that no reasonable juror could have convicted. See Jones, 763 F.3d at 1247 (discussing possible standard).

6. Summary re Cognizable Claims

Based on the foregoing, the Petition fails to state cognizable habeas claims in: (1) Petitioner's grand jury claims in Grounds 1, 1(a), 1(b)/1(c)/1(f); (2) his preliminary hearing claim in Ground 5; (3) his non-trial court procedures claims in Grounds 8(c), 8(d), 8(e) and 9(b) (because based on insufficient processes in his special action, appellate, or PCR proceedings). Accordingly, such claims must be dismissed with prejudice.

Petitioner's Ground 4 bail claim is generally a cognizable habeas claim, but under the “in custody” requirement this Court lacks jurisdiction over it and it must be dismissed with prejudice.

B. INADEQUATELY STATED CLAIMS

Respondents argue that Petitioner fails to allege sufficient facts to adequately raise claims in Grounds 1(a), 1(b), 2(a), 2(b), 6(a), 6(b), 8(b)(i), 8(b)(v), 8(c)(i), 8(c)(ii), 8(c)(iii), 8(e), 9(a), 9(b), 10(a), and 10(b). (Answer, Doc. 12 at 43-51.) Petitioner does not reply.

The rules governing habeas corpus cases require that the petition must “specify all the grounds for relief available to the petitioner” and “state the facts supporting each ground.” Rule 2(c), Rules Governing § 2254 Cases. Similarly, the standard of pleading civil complaints focuses on facts. “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.” James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994). See also Greenway v. Schriro, 653 F.3d 790, 804 (9th Cir. 2011) (“Greenway's cursory and vague claim [that counsel did not adequately prepare a witness] cannot support habeas relief.”).

But the requirement of sufficiency does not require pleading of legal theories or authorities. “Federal pleading rules call for ‘a short and plain statement of the claim showing that the pleader is entitled to relief,' Fed. Rule Civ. Proc. 8(a)(2); they do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.” Johnson v. City of Shelby, Miss., 135 S.Ct. 356, 346 (2014). “[U]nder the Federal Rules of Civil Procedure, a complaint need not pin plaintiff's claim for relief to a precise legal theory.” Skinner v. Switzer, 562 U.S. 521, 530 (2011). “Notice pleading requires the plaintiff to set forth in his complaint claims for relief, not causes of action, statutes or legal theories.” Alvarez v. Hill, 518 F.3d 1152, 1157 (9th Cir. 2008).

In applying these principles, the focus is on the factual allegations within the pleading. But the review of those allegations must be made against the elements of the legal theories on which the claims are based. And, as discussed supra in Section IV(A)(1), this Court must liberally construe Petitioner's pro se Petition. Consequently, determining the adequacy of the Petition often overlaps with the determination whether the Petition even states a cognizable claim.

1. Grounds 1, 1(b)/1(c)/1(f), and 1(e) Inadequately Pled

In Ground 1, Petitioner primarily asserts a claim of malicious prosecution . Assuming such a claim is a cognizable habeas claim,¹³ Petitioner fails to allege a primary element of a malicious prosecution claim. “One element that must be alleged and proved in a malicious prosecution action is termination of the prior criminal proceeding in favor of the accused.” Heck v. Humphrey, 512 U.S. 477, 484 (1994) (discussing civil rights claim for malicious prosecution). Petitioner does not allege a favorable termination, and the records herein appear to overwhelmingly show the contrary. Accordingly, Petitioner fails to adequately state a claim of malicious prosecution.

13 See Cooper v. Baughman, 2020 WL 4227348, at *7 (E.D. Cal. July 23, 2020) (questioning whether malicious prosecution claims are cognizable on habeas review and noting the Supreme Court has never found it to be so).

The undersigned construes Ground 1 as not only asserting a multipart claim of malicious prosecution based on the facts in the various subparts, but (like Respondents) to also assert each subpart as underlying direct violations.

Respondents argue Ground 1(a) (“bad faith”) fails to adequately state a claim because it does not identify the nature of the bad faith nor point to a specific constitutional violation. The latter argument would be a matter of deficiency in alleging law, subject to the Court's duty of liberal construction and not necessary under the pleading requirements.¹⁴ The former argument ignores the ensuing discussions in Ground 1 about: premature reporting of the crime; the prosecution seeking an indictment before they had probable cause; using perjurious testimony, etc. (Petition, Doc. 1 at 6(a).) This claim is adequately stated. (But as discussed in Section IV(A)(2)(a), this is not a cognizable habeas claim.)

14 The undersigned does not conclude that there is a viable Constitutional claim for a “bad faith” prosecution. The undersigned has not found any case finding a conviction to be constitutionally infirm because it was pursued in “bad faith.” At most, the courts have recognized a “bad faith prosecution” (i.e. one conducted “without hope of obtaining a valid conviction,” Perez v. Ledesma, 401 U.S. 82, 85 (1971)) to be a basis for a habeas court to intervene in ongoing state proceedings (a process ordinarily precluded by the abstention principles in Younger v. Harris 401 U.S. 82 (1971)) to rectify some other constitutional violation. See e.g. Perez, 401 U.S. 82 (considering propriety of pre-conviction habeas jurisdiction over First Amendment challenge to ongoing state prosecution on obscenity laws).

Respondents also argue Petitioner fails to adequately state a claim in Ground 1(b), but do not make a comparable claim regarding Ground 1(c) or 1(f). In Ground 1(b), Petitioner alleges the indictment was “defective,” but fails to identify the nature of the defects. The undersigned construes the allegations in what is denominated as Grounds 1(b) and 1(c) to be a single claim, and the same claim as raised in Ground 1(f), i.e. that the indictment was defective because there was insufficient evidence for the grand jury to find probable cause. The undersigned liberally construes the alleged insufficiency to result from evidentiary challenges discussed in Ground 1, i.e. premature reporting, use of suborned testimony. So understood, Grounds 1(b)/1(c)/1(f) adequately states a claim. (But as discussed supra in Section IV(A)(2)(a), this is not a cognizable habeas claim.)

In Ground 1(d) Petitioner argues the indictment was “duplicitous,” pointing to the multiple counts (fraudulent schemes, theft by control, theft by conversion) arising out of the same course of conduct. The same argument is made in Ground 9(c).

“An indictment is duplicitous where a single count joins two or more distinct and separate offenses.” U.S. v. Garcia, 400 F.3d 816, 819 (9th Cir. 2005) (emphasis added). Petitioner alleges no facts to show that his Indictment contained more than one offense per count. To the extent that Petitioner would rely upon the references in the Indictment (Exh. A) to multiple statutes, this would not adequately state a claim. A single offense and its possible punishments can be described in more than one provision, and still constitute a single offense.

On the other hand, “[a]n indictment is multiplicitous when it charges multiple counts for a single offense, producing two penalties for one crime and thus raising double jeopardy questions.” United States v. Stewart, 420 F.3d 1007, 1012 (9th Cir. 2005) (emphasis added). Petitioner's bare reference to the multiple counts and single course of conduct at least arguably adequately states a claim based on multiplicity. Accordingly, the undersigned liberally construes Grounds 1(d) and 9(c) to be based upon the legal theory that the Indictment was multiplicitous.

In Ground 1(e), Petitioner argues that the Indictment provided inadequate notice of the charges against him. But Petitioner makes no explanation in the Petition about the purported inadequacies of notice. At most he references duplicity. Duplicity is a subset of the clams of inadequate notice. “A duplicitous indictment compromises a defendant's Sixth Amendment right to know the charges against him, as well as his Fifth Amendment protection against double jeopardy.” United States v. King, 200 F.3d 1207, 1212 (9th Cir. 1999). But this would simply make Ground 1(e) duplicative of Grounds 1(d) (duplicity) and 9(c).

On direct appeal, Petitioner argued the inadequacy of notice arose from the lack of “factual specificity of the conduct to support the accusation” and that Counts Two and Three of the indictment charged “two crimes for the same [indecipherable] and fails to [?demonstrate?] what conduct constituted a crime.” Even if this Court could read Petitioner's state brief into the Petition, his bald references to a lack of factual specificity and failure to identify specific conduct fails to adequately state a claim. “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Iqbal, 556 U.S. at 678.

Accordingly, Ground 1(e) is duplicative of Ground 1(d) to the extent it is based on duplicity, and thus is liberally construed to be a claim of lack of adequate notice based on a lack of factual specificity. So construed, Ground 1(e) fails to adequately state a claim for relief.

2. Grounds 2(a), 2(b)/2(c) Adequately Pled

In Ground 2(a) Petitioner alleges a denial of due process because the court and prosecutor failed to conduct “evidentiary procedures” on admissibility, citing to Ariz. Rev. Stat. § 13-4238. (Petition, Doc. 1 at 8-8A.) In Ground 2(b), Petitioner alleges a denial of due process by the admission of inadmissible evidence. (Petition, Doc. 1 at 8-8(a).) Respondents reassert their cognizability argument rejected hereinabove in Section IV(A)(1)) and argue that the claims are without merit under state law. (Answer, Doc. 12 at 45-46.) The latter argument conflates the merits of a claim with whether it is adequately stated. The former is resolved by a liberal construction.

The liberal construction mandate requires the Court to not, as a matter of course, place reliance on the petitioner's division of his factual allegations among various claims or grounds for relief, but instead to ““look[] to the entire petition” Zichko v. Idaho, 247 F.3d 1015, 1021 (9th Cir. 2001), as amended (June 5, 2001). Reading all of Ground 2 together, and in light of the other factual allegations in the Petition, particularly in Ground 8 (Petition, Doc. 1 at 18-10 (“11(E)” to “11(F)”), the Court liberally construes Ground 2(a) as based on the failure to conduct a hearing on the admissibility of the computer generated copy of Petitioner's rental agreement for the rental car and Ground 2(b) to be based on the admission of the copies at trial.

So construed, Grounds 2(a) and 2(b) adequately state claims. However, that renders Ground 2(c), arguing the use of the inadmissible evidence, redundant of the claim in Ground 2(b). Thus Grounds 2(b) and 2(c) are addressed together.

3. Grounds 6(a), 6(b) Adequate

In Ground 6(a) Petitioner asserts denial of a Fourteenth Amendment right “to be free from unfair prejudice” based on the improper admission of other-act evidence (Petition, Doc. 1 at 11(B).) Respondents argue Petitioner fails to provide argument to show such a Fourteenth Amendment right and fails to cite to the purportedly violated evidentiary laws. (Answer, Doc. 12 at 46.) Both are simply deficiencies in citations to law not required to be pled, or an issue of merit.¹⁵ This claim is adequately stated.

15 In one respect, the assertion of state law is a factual matter underlying the associated due process claim. On the other hand, the existence of an error of state law is a legal determination which must be made by the habeas court, except where the state law may have been previously determined by the state court.

In Ground 6(b) Petitioner asserts a similar violation based on the prosecutor's conduct which “deprived [Gwen] of his right to a jury verdict of guilt beyond a reasonable doubt.” (Petition, Doc. 1 at 11(B).) Respondents argue this is a conclusory argument because Petitioner does not identify the offending conduct nor now it led to a risk of conviction in the face of reasonable doubt. (Answer, Doc. 12 at 47.) To the contrary, the reasonable inference from Petitioner's allegations is that the admission of the irrelevant other act evidence led to conviction on that basis rather than evidence of guilt of the charged offenses. (Petition, Doc. 1 at 11(C).) This claim is adequately stated.

4. Grounds 8(b)(i), 8(b)(v), 8(c)(i) Inadequately Pled

In Ground 8(b)(i) Petitioner alleges he was denied due process and fundamental fairness when the trial court abused its discretion in denying “access to evidentiary procedures.” (Petition, Doc. 1 at 11(G).) Respondents properly argue this claim is conclusory because Petitioner fails to identify the referenced evidentiary procedures or even their nature, or to show how unfairness resulted. (Answer, Doc. 12 at 47.) This ground fails to adequately state a claim.

In Ground 8(b)(v) Petitioner raises similar claims based on the trial judge interfering with “the orderly delivery of U.S. mail by appropriation or having conveyed to his person U.S. Mail addressed and directed to the presiding judge of the county.” (Petition, Doc. 1 at 11(G)-11(H).) Respondents argue this claim is inadequately stated because Petitioner fails to “clearly articulate how the trial court allegedly interfered with the mail or how it denied him due process.” (Answer, Doc. 12 at 47-48.) The reasonable inference from Ground 8(b) is that the interference was with Petitioner's motion for change of judge, which Ariz. R. Crim. Proced. 10.1 (cited by Petitioner) mandates be decided by the presiding judge,¹⁶ not the assigned judge. However, Petitioner fails to allege facts to show any resulting denial of due process or fundamental fairness, or any other impact on his criminal conviction or sentence. For example, he fails to allege facts to show that the presiding judge would have granted a change of judge, which is permitted on a showing that “the assigned judge's interest or prejudice would prevent a fair and impartial hearing or trial.” Ariz. R. Crim. Proced. 10.1(a). At best, Petitioner references purportedly erroneous rulings by the trial judge. Petitioner offers no facts to show this was sufficient. See State v. Granados, 235 Ariz. 321, 326, 332 P.3d 68, 73 (App. 2014) (requisite judicial bias or prejudice ordinarily must arise from an extrajudicial source and not from what the judge has done in his participation in the case, thus judicial rulings alone almost never constitute a valid basis for a bias or partiality motion).

16 In Arizona, a “presiding” judge is appointed by the Arizona Supreme Court, and exercises administrative supervision over the other judges in the county. Ariz. Const. Art. VI § 11.

This ground fails to adequately state a claim.

In Ground 8(c)(i) Petitioner argues the appellate courts denied him fundamental fairness when it denied special action jurisdiction over the trial court's erroneous rejection of pretrial motions, arguing the appellate court had accepted jurisdiction over similar matters. (Petition, Doc. 1 at 11(H).) Respondents argue Petitioner inadequately states a claim because he does not identify the motions nor allege that if jurisdiction had been granted he would have obtained relief, the absence of which was unfair. (Answer, Doc. 12 at 48.) The pretrial motions being challenged are a matter of record in the Petition for Special Action, as are Petitioner's arguments for relief. (See Pet. Spec. Act., Exh. R-L, and appendices 1-3 thereto.) A reasonable inference is that this claim is based on the facts and legal arguments within those records.

But Petitioner fails to allege facts to show that the denial of special action jurisdiction denied him due process. The nature of a special action proceeding in the State of Arizona is a review of interlocutory decisions in the trial court, despite the usual limitation of the appellate courts to review of final judgments. “In special actions, we decide whether to exercise jurisdiction after considering various well-established factors, including whether there exists an equally plain, speedy, and adequate remedy by appeal, and whether the case presents a purely legal question on an issue of statewide importance,” Catalina Foothills Unified Sch. Dist. No. 16 v. La Paloma Prop. Owners Ass'n, Inc., 229 Ariz. 525, 531, 278 P.3d 303, 309 (Ct. App. 2012) (citations omitted). Petitioner offers no factual allegations to show that this standard was met, and that he was injured by the denial of special action jurisdiction in ways not remediable on appeal. Petitioner alleges the impropriety of the denial is shown because the state court had accepted jurisdiction in similar matters. But he fails to identify those other cases.

Moreover, as discussed hereinabove in Section IV(A)(4), the issue in this case is not whether some error of state law occurred in denial of the special action proceeding, but whether the error denied Petitioner due process resulting in his criminal conviction. Petitioner alleges no facts to show some injury to his criminal defense was sustained that was not addressable through his direct appeal or PCR proceedings.

Thus, even if it asserted a cognizable claim, this claim is inadequately stated.

In Ground 8(c)(ii) Petitioner makes similar arguments regarding the appellate court's failure to “adequately adjudicate all claims presented on direct appeal.” (Petition, Doc. 1 at 11(H).) Respondents argue that this claim ignores that appellate error is not a basis for habeas relief. (Answer, Doc. 12 at 48-49.) This is the cognizability claim addressed hereinabove in Section IV(A)(4), but it does not establish the claim is inadequately stated.

In Ground 8(c)(iii) Petitioner makes similar arguments regarding the Arizona Supreme Court's denial of review of his petition for review without stating why. (Petition, Doc. 1 at 11(H).) Respondents argue this claim is inadequately stated because Petitioner fails to allege how he was denied fundamental fairness, or that he would have been successful had review been granted. (Answer, Doc. 12 at 49.) The allegation of the lack of reasoned decision (with a reasonable inference that an unreasoned decision provides no basis to evaluate the propriety of the decision or further appeal and that the appeal should have been successful on the grounds alleged to that court) is sufficient to allege a denial of fairness. This claim is adequately stated. (The non-cognizability of the claim is addressed in Section IV(A)(4).)

In Ground 8(e) Petitioner alleges the state court process was inadequate because it allegedly did not have a sufficient process to challenge the admissibility of evidence or to correct erroneous legal rulings, and because appellate procedures did not entitle Gwen to an evidentiary hearing. (Petition, Doc. 1 at 11(H).) Respondents do not argue a defect in pleading, but argue this claim is not cognizable, and without merit because the deficiency is based on the lack of relief from the state court. (Answer, Doc. 12 at 49-50.) This argument conflates merits and cognizability with the sufficiency of the allegations. This claim is adequately stated. (The non-cognizability of the claim is addressed in Section IV(A)(4).)

5. Grounds 9(a), 9(b) Inadequately Pled

In Ground 9(a) Petitioner raises a cruel and unusual punishment argument based on the trial court failing to decide sentencing issues. (Petition, Doc. 1 at 11(J).) Respondents argue Petitioner fails to identify the issues and fails to argue his sentence is unconstitutional or illegal. (Answer, Doc. 12 at 50.) Petitioner plainly asserts this claim as an Eight Amendment cruel and unusual punishment claim. But his failure to identify the undecided issues or to allege facts to show why his sentence is cruel or unusual renders this claim conclusory. This ground fails to adequately state a claim.

In Ground 9(b) Petitioner argues an Eighth Amendment violation based on the PCR court's failure to adjudicate his constitutional claims. (Petition, Doc. 1 at 11(J).) Respondents argue that this claim is inadequately stated because he fails to identify the undecided claims or prejudice from the failure to decide. (Answer, Doc. 12 at 50.) Unlike the claim in Ground 8(c)(i) (special action), Petitioner's claim is not directed at the entire proceeding to allow an inference about what claims in his PCR Petition are included in this claim, or the purported prejudice. Therefore, this ground is conclusory and fails to adequately state a claim.

6. Grounds 10(a), 10(b) Inadequate

In Ground 10(a), Petitioner alleges he was denied his right to a fair trial when the prosecutor called Gwen's expert to testify because the prosecutor “knew there exists no expert testimony to rebut,” and there was a “conflict in confidential communications” with Petitioner that precluded the testimony. In Ground 10(b), Petitioner alleges that he was denied a fair trial when the trial court abused its discretion allowing the expert witness to be called. (Petition, Doc. 1 at 11(K)-11(L).) Respondents argue that these claims are inadequately stated because Petitioner: (1) fails to identify the state law precluding the calling of this witness; and (2) fails to allege that confidential communications were disclosed. Respondents argue the claims are thus conclusory. (Answer, Doc. 12 at 5051.) The former argument is not persuasive. Petitioner's claim is not that calling the expert was prohibited by statute, but that (given the conflict issue) it was a due process violation. Moreover, it is a defect that could be cured by a liberal construction of legal theories. The latter argument is, however, persuasive. Petitioner's failure to allege that confidential communications were actually disclosed leaves no inference for this Court to make to show that Petitioner was prejudiced by the calling of the expert. These grounds fail to adequately state a claim.

7. Summary re Sufficiency of Claims

Based upon the foregoing, the undersigned concludes that the Petition fails to adequately state claims for relief in: (a) Grounds 1, 8(b)(i), 8(b)(v), 8(c)(i), 9(a), 9(b), 10(a) and 10(b); (b) to the extent based on duplicity, rather than multiplicity, the claims in Ground 1(d) and 9(c); and (c) to the extent based on lack of facts, Ground 1(e). Because the time for Petitioner to amend these claims expired on January 20, 2023 (see Order 12/27/2022, Doc. 20 at 1), these claims must be dismissed with prejudice.

C. EXHAUSTION, PROCEDURAL DEFAULT AND PROCEDURAL BAR

Respondents argue that Petitioner has either procedurally defaulted or was procedurally barred on an independent and adequate state ground, on his claims in Grounds 1, 1(a), 1(b)/1(c)/1(f), 1(e), 2(a), 2(b), 2(c), 3, 5, 6(a), 6(b), 6(c), 8(b)(i), 8(b)(ii), 8(b)(iii), 8(b)(iv), 8(b)(v), 8(c)(i), 9(a), 9(b), 10(a), and 10(b), and thus they are barred from federal habeas review.¹⁷

17 In Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010), a panel of the Ninth Circuit denominated an expected future application of a procedural bar as an “implied procedural bar,” and an actually applied procedural bar as “explicit.” Because habeas courts are sometimes called upon to imply an explicit procedural bar from a summary state court decision, see Hunter v. Aispuro, 982 F.2d 344 (9th Cir. 1992) and Wilson v. Sellers, 138 S.Ct. 1188 (2018), and because a procedural default involves a forecast of a state court's future decision, rather an implication about a past decision, the undersigned maintains the separate nomenclature of procedural default and procedural bar. The principles, however, are the same.

1. Exhaustion

a. Exhaustion Required

Generally, a federal court has authority to review a state prisoner's claims only if available state remedies have been exhausted. Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (per curiam); 28 U.S.C. § 2254(b) and (c). When seeking habeas relief, the burden is on the petitioner to show that he has properly exhausted each claim. Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981).

Ordinarily, to exhaust his state remedies, the petitioner must have fairly presented his federal claims to the state courts. “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.” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005) (citations omitted).

Petitioner argues that presentation of legal theories is not required under 28 U.S.C. § 2254, citing Northrop v. Hoffman of Simsbury, Inc, 134 F.3d 41 (2d Cir. 1997). (Reply, Doc. 26 at 4.) But Northrop did not address the sufficiency of a state court filing to exhaust state remedies, but the sufficiency of a federal complaint under Fed.R.Civ.P. 8. In evaluating exhaustion, the Supreme Court has made clear that failure to alert the state court to the constitutional nature of the claim will amount to failure to exhaust state remedies. Duncan v. Henry, 513 U.S. 364, 366 (1995). While the petitioner need not recite “book and verse on the federal constitution,” Picard v. Connor, 404 U.S. 270, 27778 (1971) (quoting Daugherty v. Gladden, 257 F.2d 750, 758 (9th Cir. 1958)), it is not enough that all the facts necessary to support the federal claim were before the state courts or that a “somewhat similar state-law claim was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam). “[T]he petitioner 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.” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9^th Cir. 2005),) Moreover, where specific clauses apply to broad categories of claims, a bare reference to the constitutional clause is not fair presentation of the federal basis for the claim. Gray v. Netherland, 518 U.S. 152, 163 (1996).

Petitioner argues that “[t]he Rule¹⁸ makes no distinction between the State authorities as opposed to federal authorities. (Reply, Doc. 26 at 4.) It is true that a federal claim may be fairly presented by “a citation to a state case analyzing [the] federal constitutional issue." Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003. However, the state court “must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution.” Duncan v. Henry, 513 U.S. 364, 365-66 (1995). Thus, the referenced state case must itself explicitly apply federal law. "[P]etitioner's daisy chain-which depends upon a case that was cited by one of the cases that was cited by one of the cases that petitioner cited-is too lengthy to meet this Court's standards for proper presentation of a federal claim." Howell v. Mississippi, 543 U.S. 440, 443-444 (2005). Further, there must generally be an indication that the state case is being cited for its constitutional analysis, or it must be limited to such an analysis. A drive-by-citation of a state case applying federal and state law is not sufficient.

18 To the extent that Petitioner's reference to “[t]he Rule” is a reference to the Arizona courts' motion briefing requirement in Ariz. R. Crim. Proced. 1.9(a) (cited in the preceding paragraph of the Reply), his argument is inapposite. While the state courts may erect their own procedural rules for the presentation of claims, those rules do not define for the federal courts whether a federal claim was fairly presented.

For a federal issue to be presented by the citation of a state decision dealing with both state and federal issues relevant to the claim, the citation must be accompanied by some clear indication that the case involves federal issues. Where, as here, the citation to the state case has no signal in the text of the brief that the petitioner raises federal claims or relies on state law cases that resolve federal issues, the federal claim is not fairly presented.

Casey v. Moore, 386 F.3d 896, 912 n. 13 (9th Cir. 2004).

Petitioner argues that Respondents have failed to “demonstrate by a showing in the record of a (1) state court procedure where state was not fairly apprised” of the federal nature of his claims. (Reply, Doc. 26 at 6.) But the burden of showing fair presentation and exhaustion does not lie with Respondents, but rather with Petitioner. Cartwright, 650 F.2d at 1104.

Petitioner argues, without authority, that this Court cannot consider Respondents subjective opinions on fair presentation. (Reply, Doc. 26 at 12.) Certainly this Court is the arbiter of such fair presentation. But the arguments and evidence put forward by Respondents are appropriate for this Court's consideration, as are Petitioner's arguments (and burden) to show fair presentation.

Finally, Petitioner argues that Respondents' procedural default defense is inarguable because the required form of habeas petition instructs Petitioner “you do not need to cite law.” (Reply, Doc. 26 at 31.) While that may be true in the habeas petition in this Court (which is the focus of those instructions), it is not true with respect to Petitioner's state court filings.

b. Proceedings Where Exhaustion Possible

For Petitioner, proper exhaustion must have occurred in the Arizona Court of Appeals. “In cases not carrying a life sentence or the death penalty, ‘claims of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.'” Castillo v. McFadden, 399 F.3d 993, 998 (9th Cir. 2005) (quoting Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999)).

Petitioner asserts exhaustion by presentation in the trial court. (Reply, Doc. 26 at 13.) While presentation to the trial court may be necessary for a fair presentation in the appellate court, see Casey v. Moore, 386 F.3d 896 (9th Cir. 2004), presentation to the trial court is not sufficient.

Petitioner asserts exhaustion by presentation in his Petition for Special Action (Exh. R-L). (Reply, Doc. 26 at 14.) "Submitting a new claim to the state's highest court in a procedural context in which its merits will not be considered absent special circumstances does not constitute fair presentation." Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994) (citing Castille v. Peoples, 489 U.S. 346, 351 (1989)). In Arizona, review in a petition for special action is discretionary with the and appropriate only when there is no equally plain, speedy or adequate remedy available by appeal, or when the case presents a narrow question of law of statewide importance.¹⁹ State ex rel. Romley v. Superior Court, 198 Ariz. 164, 7 P.3d 970, 972-3 (Ariz.Ct.App.2000).

19 Interlocutory double jeopardy claims to a subsequent prosecution are a type of claim properly brought in a petition for special action. See State v. Moody, 208 Ariz. 424, 437, 94 P.3d 1119, 1133 (2004). Here, Petitioner asserts a double jeopardy claim in Ground 1(d), but it is not based on successive prosecutions, but a duplicitous indictment. Moreover, Petitioner's Petition for Special Action did not fairly present a double jeopardy claim. (See generally Exh. R-L, Pet. Spec. Act.)

Petitioner asserts exhaustion in his PCR proceeding by presentation to the trial court. (Reply, Doc. 26 at 14-15.) As discussed above, however, Petitioner was required to present his claims not just to the trial court, but also to the Arizona Court of Appeals in a petition for review from the trial court's decision. He filed no such petition.

Petitioner asserts exhaustion by presentation to the Arizona Supreme Court in his Petition for Review of Appellate Court Decision (Exh. R-R). (Reply, Doc. 26 at 16.) However, that petition sought review of the rejection of his Petition for Special Action. As with the presentation to the Arizona Court of Appeals in that special action proceeding, this was not fair presentation of Petitioner's claims.

Petitioner asserts fair presentation to the Arizona Supreme Court in his petition for review in his direct appeal. (Reply, Doc. 26 at 16.) Assuming arguendo that Petitioner finally presented his federal claims to that court (that he failed to present to the Arizona Court of Appeals), that was not a fair presentation. Presentation to the Arizona Supreme Court for the first time is not sufficient to exhaust an Arizona state prisoner's remedies. "Submitting a new claim to the state's highest court in a procedural context in which its merits will not be considered absent special circumstances does not constitute fair presentation." Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994) (citing Castille v. Peoples, 489 U.S. 346, 351 (1989)). The Arizona Supreme Court does not grant review of claims not raised below, absent special considerations. See State v. Logan, 200 Ariz. 564, 565, 20 P.3d 631, 632, n.2 (2001).

In Casey v. Moore, 386 F.3d 896 (9^th Cir. 2004), the court reiterated that to properly exhaust a claim, "a petitioner must properly raise it on every level of direct review."

Academic treatment accords: The leading treatise on federal habeas corpus states, “Generally, a petitioner satisfies the exhaustion requirement if he properly pursues a claim (1) throughout the entire direct appellate process of the state, or (2) throughout one entire judicial postconviction process available in the state.”

Casey, 386 F.3d at 916 (quoting Liebman & Hertz, Federal Habeas Corpus Practice and Procedure, § 23.3b (4th ed. 1998).

Petitioner asserts exhaustion in his direct appeal to the Arizona Court of Appeals. (Reply, Doc. 26 at 15.) Fair presentation of Petitioner's federal claims in that proceeding could satisfy the exhaustion requirement. But, as discussed hereinafter, Petitioner fails for many of his claims to show a fair presentation in this proceeding.

c. Federal Claims Not Fairly Presented

Despite specific instruction in the Order filed December 27, 2022 (Doc. 20), Petitioner has failed to identify the specific portions of his briefs on direct appeal to the Arizona Court of Appeals in which his claims were fairly presented. He makes a variety of references to presentation in other proceedings, e.g. his state habeas corpus petition, motion on admissibility of evidence, motion to compel, his PCR petition. (Reply, Doc. 26 at 13-14). None of those were proper forums for exhaustion of his state remedies.

As to his direct appeal, his only reference to show proper exhaustion is a citation to page 2 of his Supplemental Brief. (Reply, Doc. 26 at 15.) But page 2 of that filing contains no reference to any federal constitutional provisions, principles, cases, law or claims. The sole citation is to a state case, State v. Brown, 205 Ariz. 325, 70 P.3d 454 (Ct. App. 2003), vacated, 209 Ariz. 200, 99 P.3d 15 (2004), for the proposition that Petitioner's claims were likely to recur (an issue Brown discussed as part of exercising special action jurisdiction).

For a federal issue to be presented by the citation of a state decision dealing with both state and federal issues relevant to the claim, the citation must be accompanied by some clear indication that the case involves federal issues. Where, as here, the citation to the state case has no signal in the text of the brief that the petitioner raises federal claims or relies on state law cases that resolve federal issues, the federal claim is not fairly presented.

Casey v. Moore, 386 F.3d 896, 912 n. 13 (9th Cir. 2004).

In Brown, the only federal authorities and principles discussed related to the right to a jury on issues increasing the possible punishment, e.g. Apprendi v. New Jersey, 530 U.S. 466 (2000), Ring v. Arizona, 536 U.S. 584 (2002), etc. But here, Petitioner does not raise a claim based on denial of a jury trial right at sentencing. Accordingly, citation to Brown did not fairly present any of Petitioner's claims.

On this basis alone, Petitioner having failed to show proper exhaustion, Petitioner's claims urged by Respondents as not fairly presented should be found as such, and to thus not be properly exhausted.

The undersigned will nonetheless independently review the relevant appellate brief to identify whether any of his habeas claims were fairly presented as federal claims. The task is complicated because: (a) many of Petitioner's habeas claims are conclusory; and (b) his pro per appellate brief was 60 pages long, largely meandering and conclusory, and the few references to federal law in that brief were largely generic, and often disconnected from any particular factual argument.

(1). Ground 1

In Ground 1, Petitioner asserts malicious prosecution and asserts claims of: (a) bad faith prosecution; (b) defective indictment; (c) insufficient evidence for grand jury; (d) duplicitous indictment; (e) indictment was deficient; and (f) insufficient evidence. Respondents argue Grounds 1(a), (b), (c) and (e) are procedurally defaulted or barred.

Regarding the general claim of malicious prosecution in Ground 1 and in particular Ground 1(a) (bad faith prosecution), Petitioner argued to the state court that his prosecution was malicious because it was undertaken in “bad faith before [the prosecution] had probable cause to do so.” But Petitioner failed to identify this as a federal claim. (Exh. Q. Supp. Br. at 5). In summing up his claim, Petitioner asserted malicious prosecution claims were reviewed de novo, and cited In re Estate of Shumway, 198 Ariz. 323, 9 P.3d 1062 (2000). (Id. at 9.) That case neither cited nor applied any federal law on a claim of malicious prosecution or bad faith. At most it analogized to a state standard on review of such claims to “probable cause” in the context of in terrorem clauses (bequest to heir is lost if the heir contests a will without probable cause).

Regarding Ground 1(b) (defective indictment), and Ground 1(c) (insufficient evidence for probable cause), Respondents treat these as separate claims. Respondents argue 1(b) was not presented as a federal claim on direct appeal and was procedurally barred in the PCR court. Respondents argue Ground 1(c) was not presented as a federal claim on direct appeal and Petitioner's citation to U.S. v. Lavasco, 431 U.S. 739 (1977) (id. at 7) was not fair presentation because that case dealt only with delay issues. Respondents subsequently argue Ground 1(b) fails to adequately state a claim because it fails to identify the defect.

As discussed hereinabove, the undersigned reads the allegations in what is denominated as Ground 1(b)/1(c)/1(f) as a single claim, i.e. that the indictment was defective because there was insufficient evidence for the grand jury to find probable cause. The undersigned agrees, however, that Petitioner did not fairly present this to the appellate court as a federal claim. Petitioner's discussion of this claim made no reference to federal law beyond the citation to Lavasco. (Id. at 5-7.) And as noted by Respondents, that case dealt only with a claim of preindictment delay, not any insufficiency in the evidence to the grand jury. “Citation of irrelevant federal or state cases does not provide a state court with a “‘fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim.” Castillo v. McFadden, 399 F.3d 993, 1001 (9th Cir. 2005). “Where the constitutional claim raised in a cited case is not the same claim that the petitioner asserts was presented to the state court, ‘it is clear that such a citation is insufficient.'” Shumway v. Payne, 223 F.3d 982, 988 (9th Cir. 2000).

Regarding Grounds 1(d)/9(c) (duplicitous/multiplicitous indictment), Respondents address these claims solely on the merits. However, because the Petition fails to adequately state a claim of duplicity, instead stating a claim of multiplicity, the undersigned has liberally construed it as asserting a claim of multiplicity.

Petitioner asserted to the state court that his Indictment was “duplicitous,” but argued that it stated “two counts for the same single act,” citing U.S. v. Broce, 781 F.2d 792 (1986). (See Exh. Q, Sup. Br. at 8.) In Broce, the Tenth Circuit decried as “duplicitous” an indictment arguably containing multiple counts for the same conspiracy. That is, of course, an issue of multiplicity, not duplicity. Indeed, the dissent in Broce identified the claim as one of “multiplicity.” In fact, the Federal Rule of Criminal Procedure being applied in Broce explicitly differentiates between the two:

(i) joining two or more offenses in the same count (duplicity);

(ii) charging the same offense in more than one count (multiplicity);

Fed. R. Crim. Proc. 12(b)(3)(B).

Because Respondents do not challenge the exhaustion of this issue, and the matter is less than clear, the undersigned declines to raise the exhaustion of this claim sua sponte, and instead will address the multiplicity portion of these Grounds on their merits. See 28 U.S.C. § 2254(b) (2) (“An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”).

Regarding Ground 1(e) (inadequate notice), Respondents argue Petitioner cited to an inapposite case, U.S. v. Russell, 411 U.S. 423 (1973) and failed to cite to a case identifying what constitutes adequate notice. To the contrary, Petitioner not only raised an inadequate notice claim, but cited to U.S. v. Hitt, 249 F.3d 1010 (D.C. Circ. 2001), see id. at 1022 (“indictment's key purpose-to provide notice to [defendant] of the charges against which he should be prepared to defend himself at trial”). He also quoted the relevant portion of the Sixth Amendment. (Id. at 7-8.) See U.S. Const. Amend. VI (“In all criminal prosecutions, the accused shall enjoy the right.. .to be informed of the nature and cause of the accusation.” That was sufficient to alert the state court to the federal nature of his claim.

The appropriate question is whether Petitioner provided the state court the same factual basis for the claim that he now asserts. Answering this is problematic because Petitioner makes no explanation in the Petition about the purported inadequacies of notice. At most he references duplicity. Duplicity is a subset of the clams of inadequate notice. “A duplicitous indictment compromises a defendant's Sixth Amendment right to know the charges against him, as well as his Fifth Amendment protection against double jeopardy.” United States v. King, 200 F.3d 1207, 1212 (9th Cir. 1999). But this would simply make Ground 1(e) duplicative of Ground 1(d)/9(c).

On direct appeal, Petitioner argued the inadequacy of notice arose from the lack of “factual specificity of the conduct to support the accusation” and that Counts Two and Three of the indictment charged “two crimes for the same [indecipherable] and fails to [?demonstrate?] what conduct constituted a crime.” Thus, just as Petitioner has failed to adequately state the facts of this claim in this Court, Petitioner failed to provide a factual basis for his claim to the state court of lack of adequate facts. Accordingly, this claim was not fairly presented to the state court.

In summary, in Ground 1, Petitioner fairly presented and properly exhausted state remedies only on his claim in Ground 1(d) (duplicitous indictment). Grounds 1(a), 1(b)/1(c)/1(f), and 1(e) were not properly exhausted.

(2). Ground 2

In Ground 2(a), Petitioner argues a denial of due process when “evidentiary procedures” were not conducted on the admissibility of the copy of the rental agreement.

In Ground 2(b)/2(c), Petitioner argues a denial of due process when a copy of the rental agreement was admitted. (Petition Doc. 1 at 8.)

On direct appeal, Petitioner challenged the admissibility of the rental agreement on a variety of grounds, e.g. chain of custody, use of a copy, lack of authentication, failure to disclose the original, etc. (Exh. Q, Supp. Br. at 18-37) He prefaced his arguments on this evidence with the following:

The Defendant's direct appeal alleges the evidence adduced at trial was insufficient to support his conviction as a matter of law and the trial court abused its discretion when the court admitted evidence it knew to be in violation of clearly established state law, federal constitutional and the act would violate Due Process protection, ultimately depriving Defendant of his fundament right to a fair and impartial trial.

(Id. at 18.) Petitioner went on to specify:

It is a violation of Due Process to admit evidence “that is unduly prejudicial that it renders the trial fundamentally unfair.” Payne v. Tennessee, 501 U.S. 805, 825 (1991).

(Id. at 19.) He further argued:

The evidence against him was constitutionally inadmissible. This case and the resulting conviction was predicated upon a factual dispute unresolved whether the Barlow Jeep Rental Agreement offered to the trier of fact was authentic. The trial court deprived Defendant of a full and fair hearing on a material fact in dispute denying Defendant his right to due process of the law.

(Id. at 30.)

The Defendant asserts his conviction was unconstitutional because it lacks the minimally required constitutional standard proof. The judgment and verdict was assailed upon the knowing use of false physical evidence known by the trial court to be constitutionally inadmissible in violation of Defendant[‘s] Fourteenth Amendment to the United States Constitution.

(Id. at 36.)

Regarding Ground 2(a), Petitioner argued that the Court should have addressed legal objections to the admissibility of evidence outside the hearing of the jury, and failure to do so “deprived Defendant of due process.” (Id. at 26-28. See also id. at 30.) However, "it is not enough to make a general appeal to a constitutional guarantee as broad as due process to present the ‘substance' of such a claim to a state court." Gray v. Netherland, 518 U.S. 152, 163 (1996). Petitioner did not cite to any additional federal authority to support his attack on the lack of hearing, rather only to State v. Hocker, 113 Ariz. 450, 455-456, 556 P.2d 784, 789-790 (1976). (Id. at 28.) But Hocker did not address due process concerns, nor any federal basis for mandating evidentiary hearings on admissibility issues. Rather, it was applying Arizona Rules of Criminal Procedure 16.2 regarding the process for resolving pretrial motions to suppress. Hocker did discuss various federal authorities, e.g. Terry v. Ohio, 392 U.S. 1 (1968). But did so only to address the admissibility of the specific evidence from an investigative stop which was at issue in that case. Moreover, Petitioner's explicit reliance on Rule 16.2 and Hocker defeated any general reference to federal due process some 8 pages earlier in his brief. Petitioner failed to fairly present to the state court his federal due process claim in Ground 2(a).

Regarding Ground 2(b)/2(c), Petitioner made explicit reference to the admission of inadmissible evidence in violation his rights under the Fourteenth Amendment, and explicitly cited Payne, 501 U.S. 805 in arguing that the evidence was a due process violation as unduly prejudicial evidence. Ground 2(b)/2(c) was fairly presented to the state court on direct appeal, and was properly exhausted.

(3). Ground 3

In Ground 3, Petitioner argues he was denied a speedy trial, citing the Fourteenth Amendment Due Process guarantee and state speedy trial authorities. “Although a speedy trial is guaranteed the accused by the Sixth Amendment to the Constitution... the right to a speedy trial is ‘fundamental' and is imposed by the Due Process Clause of the Fourteenth Amendment on the States.” Barker v. Wingo, 407 U.S. 514, 515 (1972).

Respondents acknowledge Petitioner raised this claim on direct appeal, and cited to the Sixth Amendment's speedy trial guarantee. However, they contend that Petitioner “did not develop the constitutional claim in any meaningful way” because he argued on the basis of various state laws, including Arizona Rules of Criminal Procedure 8 and a state suspension of trials during COVID-19. Respondents analogize the authorities finding failures to fairly present due process claims, e.g. Gray, 518 U.S. at 163. But the Speedy Trial guarantee is not a “broad” guarantee like Due Process. It is razor focused on one specific issue, the delay in bringing a criminal defendant to trial.

Nonetheless, whatever Petitioner's presentation of his claims may have been, the Arizona Court of Appeals actually addressed the federal Speedy Trial claim that Petitioner raises in Ground 3. After disposing of Petitioner's challenge based on Ariz. R. Crim. Proc. 8, the appellate court went on to address his speedy trial claim under “the United States Constitution,” applying the standard under Barker v. Wingo, 407 U.S. 514, 530 (1972).) (Exh. R, Mem. Dec. 3/1/22 at ¶ 17-21.) Moreover, the Court expressly addressed the effect of the “administrative order to postpone trials during the COVID-19 pandemic.” (Id. at ¶ 20.)

A state court's actual consideration of a claim satisfies the exhaustion requirement regardless of the lack of a fair presentation. “It is reasonable to infer an exception [to the fair presentation requirement] where the State has actually passed upon the claim.” Castille v. Peoples, 489 U.S. 346, 351 (1989). See Greene v. Lambert, 288 F.3d 1081, 1086 (9th Cir. 2002) (“exhaustion does not require repeated assertions if a federal claim is actually considered at least once on the merits by the highest state court”); Park v. California, 202 F.3d 1146, 1151 (9th Cir. 2000) (“the state court of last resort ... exercise[d] its opportunity to act on [petitioner's] federal constitutional claims, then no procedural default occurred that would bar federal review of those claims”).

Accordingly, Petitioner's state remedies on Ground 3 were properly exhausted.

(4). Ground 5

In Ground 5, Petitioner argues his due process rights were violated when he was not provided a preliminary hearing. (Petition, Doc. 1 at 14 (“11(A)”).) Respondents argue that although Petitioner raised the underlying state law claim, he failed to fairly present this as a federal claim. (Answer, Doc. 12 at 21-22.) However, Petitioner asserted the denial of a preliminary hearing guaranteed by state law amounted to a denial of “Defendants 14^th Amendment right to Due Process.” (Exh. Q, Supp. Br. at 9.) Respondents do no explain why this was not fair presentation of a federal claim. Although Arizona's Constitution include a Due Process guarantee, it is in Article II, § 4 of that document. Moreover, Arizona does not designate any of its constitutional amendments sequentially, but engrosses them into the document as a whole. Ground 5 was fairly presented to the Arizona Court of Appeals as a federal claim and thus Petitioner's state remedies were properly exhausted. (In any event, this Ground does not state a claim cognizable in this habeas proceeding.)

(5). Ground 6

In Ground 6, Petitioner asserts he was denied a Fourteenth Amendment right “to be free from unfair prejudice” where: (a) other-act evidence was improperly admitted during trial; (b) the “prosecutor's conduct deprived [Gwen] of his right to a jury verdict of guilt beyond a reasonable doubt”; (c) there was instructional error regarding other-act evidence. Respondents argue these claims were presented to the Arizona Court of Appeals solely as state law claims.

Regarding Ground 6(a) (other act evidence) Petitioner argued that the admission of other bad acts violated Arizona evidentiary law. He also argued it “does not comport with the spirit of fairness, which is one of the basic tenants [sic] of the administration of criminal law,” and cited to, inter alia, U.S. v. Crowder, 141 F.3d 1202 (DC Circ. 1998) and Bruton v. U.S., 389 U.S. 818 (1968). (Exh. Q, Supp. Br. at 43.) But Crowder did not engage in any evaluation of federal constitutional law, and instead simply applied the federal evidentiary rules regarding other act evidence, i.e. Federal Rules of Evidence 403 and 404. The cited order in Bruton was simply a grant of in forma pauperis status and of a petition for writ of certiorari review. Even the subsequent opinion in Bruton, found at 391 U.S. 123 (1968), did not apply Due Process to other act evidence. To the contrary, Bruton involved a challenge to hearsay under the Confrontation Clause. The only references to due process were in a quotation from a California case involving the admission of an involuntary confession. Bruton, 391 U.S. at 130 (quoting People v. Aranda, 63 Cal.2d 518, 528-529, 47 Cal.Rptr. 353, 358-359, 407 P.2d 265, 271-272 (1965). Neither of these citations (to Crowder and Bruton) were sufficient to alert the Arizona Court of Appeals to a federal due process claim. Ground 6(a) was not fairly presented.

Regarding Ground 6(b) (reasonable doubt) Respondents argue Petitioner failed to raise this claim to the state courts at all. In arguing his claim based on the prior bad act evidence, Petitioner asserted:

The reason given by the trial court [for allowing the prior bad acts evidence], above defense objection, was to allow the police to explain its behavior to cover-up their deficiency [sic] in evidence necessary to convince a trier of act beyond a reasonable doubt.

(Exh. Q, Supp. Br. at 42.) But Petitioner made no argument this was a federal violation, and his only federal citations (Crowder and Bruton) did not fairly alert the state court to such a claim. Ground 6(b) was not fairly presented.

Regarding Ground 6(c) (instructional error), Petitioner complained that the “trial court's limiting jury instruction was prejudicial as to prove an unacceptable threat to Defendant's right to a fair trial.” (Exh. Q, Supp. Br. at 44.) But he did not urge this as a federal constitutional claim, and his citations to Crowder and Bruton did not serve to do so. Ground 6(c) was not fairly presented.

(6). Ground 8

In Ground 8(b) Petitioner argues he was denied his federal right to due process by a series of trial court orders, including: (i) denial of access to discovery procedures; (ii) denial of pretrial motions on admissibility, confrontation, and a writ of habeas corpus on duplicitous indictment; (iii) suspending the writ of habeas corpus; (iv) interfering with his right to seek a change of judge; and (v) redirecting mail to the presiding county judge.

Regarding Ground 8(b)(i) (discovery) the undersigned finds nowhere in Petitioner's appellate brief where the facts of this claims were presented, let alone as a federal due process claim. This claim was not fairly presented.

Regarding Ground 8(b)(ii) (pretrial motions), Respondents concede the portions related to the confrontation clause and a duplicitous indictment were presented, but assert they are addressed in relation to the related claims in Ground 7 (confrontation clause) and 1(d) and 9(c) (duplicity/multiplicity). As to the challenge on the admissibility of evidence, Respondents argue Petition failed to raise this as a federal claim. Petitioner raised various claims on direct appear regarding he denial of his motion on admissibility, and argued it “deprived Defendant of Due Process when it failed to afford Defendant a ‘full and fair' hearing on the evidence in dispute” (Exh. Q, Supp. Br. at 26), and summarized “the trial court deprived Defendant of a full and fair hearing on a material fact in dispute denying Defendant his right to due process of the law” (id. at 30). But Petitioner offered no suggestion he was referring to a federal due process right, as opposed to one under Arizona Constitution. Moreover, his generic reference to due process was not sufficient to fairly present such a federal claim. After much discussion, Petitioner went on to assert there was insufficient evidence to convict under Jackson v. Virginia, 443 U.S. 307 (1979) and In re Winship, 397 U.S. 358 (1970). (Id. at 36.) Those references would not fairly raise to the state court a due process claim based on the denial of evidentiary motions. This claim was not fairly presented.

Regarding Ground 8(b)(iii) (suspension of habeas corpus) Respondents point out that Petitioner's state habeas petition was based on a duplicitous indictment, which is the subject of Grounds 1(d) and 9(c). They argue Petitioner did not fairly present in his appellate brief a federal claim based on a suspension of his state habeas corpus rights. Although, as discussed hereinabove with regard to Grounds 1(d) and 9(c), Petitioner discussed his duplicity arguments in his appellate brief, the undersigned has identified no portion of that discussion that argued on the basis of a habeas suspension, let alone a federal claim on that basis. However, Petitioner separately argued that the “trial court unconstitutionally suspended the privilege of a writ of habeas corpus,” and asserted the writ is “a constitutional privilege secured by the 14^th Amendment.”²⁰ This claim was fairly presented.

20 Petitioner also cited U.S. v. Bruce, 781 F.2d 792 (1996). Bruce, however, was a double jeopardy case on direct appeal from a federal prosecution. It did not discuss any right to habeas corpus.

Regarding Ground(b)(iv) (change of judge) Respondents argue Petitioner did not raise this claim on direct appeal. The undersigned has not identified any portion of Petitioner's appellate brief raising the facts or legal arguments underlying this claim. This claim was not fairly presented.

Regarding Ground 8(b)(v) (mail) Respondents argue that to the extent this is not simply additional facts in support of Ground 8(b)(iv) (change of judge), it was never fairly presented to the state court. The undersigned has not identified any portion of Petitioner's appellate brief raising the facts or legal arguments underlying this claim. This claim was not fairly presented.

Respondents further argue that Petitioner did not fairly present to the state courts his claim in Ground 8(c)(i) (denial of special action jurisdiction). The undersigned has not identified any portion of Petitioner's appellate brief raising the facts or legal arguments underlying this claim. This claim was not fairly presented.

(7). Ground 9

In Ground 9, Petitioner argues his Eighth Amendment protections from cruel and unusual punishment were violated when: (a) the trial court failed to decide sentencing issues; (b) the PCR court failed to adjudicate his constitutional claims. (Petitioner also raises in Ground 9(c) the double jeopardy claim addressed hereinafter with Ground 1(d).)

Respondents argue Grounds 9(a) and 9(b) were argued only as a state law claim on appeal. They further argue Ground 9(a) but was fairly presented in the PCR proceeding but was precluded as waived on direct appeal. (Answer, Doc. 12 at 28.) Respondents provide only a general reference to Petitioner's state petitions and the PCR court's ruling.

Petitioner challenged his sentencing on direct appeal, but argued only on the basis of state law, and federal Double Jeopardy under the Fifth Amendment. (Exh. Q, Supp. Br. at 52-57.)

In his PCR proceeding, in addition to a variety of state law claims, Petitioner attempted to raise a laundry list of federal claims (e.g. “Fifth Amendment right,” “right confrontation to confrontation,” “fair, speedy and impartial trial,” “due process and equal protection,” “fair trial,” “Sixth and Fourteenth Amendment,” “Double Jeopardy Clause of the Fifth Amendment,” etc. Nowhere, however, did Petitioner assert and Eighth Amendment Cruel and Unusual Punishment claim in his PCR petition. And nowhere did the PCR Court address such a claim.

Grounds 9(a) and 9(b) were never fairly presented to the state courts.

(8). Ground 10

In Ground 10(a), Petitioner alleges he was denied his right to a fair trial when the prosecutor called Gwen's expert to testify because the prosecutor “knew there exists no expert testimony to rebut,” and there was a “conflict in confidential communications” with Petitioner that precluded the testimony. In Ground 10(b), Petitioner alleges that he was denied a fair trial when the trial court abused its discretion allowing the expert witness to be called. (Petition, Doc. 1 at 11(K)-11(L).)

Respondents argue these claims were not fairly presented on direct appeal. Respondents make no explicit argument they were not fairly presented in the PCR proceeding, instead arguing only that they would be precluded in a successive PCR proceeding. (Answer, Doc. 12 at 29-30.)

The undersigned has identified no portion of Petitioner's Supplemental Brief on direct appeal, or PCR petition raising these claims. These claims were not fairly presented to the state courts.

(9). Summary Re Exhaustion

Petitioner did not fairly present to the state court of appeals, and thus has not properly exhausted his state remedies, on his malicious prosecution claim in Ground 1, and the claims in Grounds 1(a), 1(b)/1(c)/1(f), 1(e), 2(a), 6(a), 6(b), 6(c), 8(b)(i), 8(b)(ii), 8(b)(iv), 8(b)(v), 8(c)(i), 9(a), 9(b), 10(a) and 10(b).

2. Procedural Default

Ordinarily, unexhausted claims are dismissed without prejudice, to allow the petitioner to attempt to exhaust his state remedies. Johnson v. Lewis, 929 F.2d 460, 463 (9th Cir. 1991). However, where a petitioner has failed to properly exhaust his available administrative or judicial remedies, and those remedies are now no longer available because of some procedural bar, the petitioner has "procedurally defaulted" and is generally barred from seeking habeas relief. Dismissal with prejudice of a procedurally defaulted habeas claim is generally proper absent a “miscarriage of justice” which would excuse the default. Reed v. Ross, 468 U.S. 1, 11 (1984).

Petitioner argues that this court cannot decide his petition based on “state court rule.” (Reply, Doc. 26 at 4, et seq.) But Petitioner proffers no authority to support that contention, and the principles of procedural default under state laws has long been established by the U.S. Supreme Court. Reed, supra.

Petitioner argues that only an expressly applied procedural bar can preclude habeas review. (Reply, Doc. 26 at 25.) Petitioner confuses procedural default and procedural bar, which is discussed hereinafter.

Respondents argue that Petitioner may no longer present his unexhausted claims to the state courts. Respondents primarily rely upon Arizona's PCR waiver bar,²¹ set out in Ariz. R. Crim. Proc. 32.2(b) and PCR time limit bar, set out in Ariz. R. Crim. P. 32.4.²² (Answer, Doc. 12 at 13-14.) This assertion is largely routine. However, Petitioner's premature PCR petition causes some wrinkles, which while not rendering Petitioner's claims properly exhausted, do result in some misdirected arguments by Respondents.

21 Under Ariz.R.Crim.P. 31.3, the time for filing a direct appeal expires twenty days after entry of the judgment and sentence. Moreover, no provision is made for a successive direct appeal. Accordingly, direct appeal is no longer available for review of Petitioner's unexhausted claims.

22 Respondents reference Ariz. R. Crim. Proc. 32 and 33. (Answer, Doc. 12 at 13-14.) Rule 33 and its various subparts only apply to defendants who pled guilty. See Ariz. R. Crim. Proc. 33.1. Therefore these rules do not apply to Petitioner, who pled not guilty and was convicted at trial. Thus, the undersigned addresses only the applicable section in Rule 32.

a. Valid Procedural Default Arguments

No Ability to Seek Review in First PCR With regard to Ground 9(b), Respondents contend this claim was raised in Petitioner's first PCR proceeding, but that it is now procedurally defaulted because it is too late for Petitioner to seek appellate review in that proceeding. (Answer, Doc. 12 at 28.) Although the undersigned has concluded this claim was not fairly presented in the PCR proceeding, if it was then Ariz. R. Crim. Proc. 32.16(a)(1) requires that petitions for review be filed within 30 days of the trial court's decision. That deadline expired on February 24, 2022. Thus this claim would (assuming presentation to the PCR court) be procedurally defaulted.

Indeed, the same rule would apply to any habeas claim fairly presented in Petitioner's PCR petition (but not in his direct appeal), rendering them procedurally defaulted.

No Ability to Seek Review in Successive PCR - Moreover, under Arizona's waiver and timeliness bars, Petitioner can no longer seek review by a subsequent PCR Petition.²³

23 The undersigned references Rule 32.2(a)(3) as a “waiver” bar to distinguish it from the other “precluded” claims in Rule 32.2(a). Rule 32.2(a)(1) also “preclude[s]” claims which are “still raiseable” on direct appeal, and Rule 32.2(a)(2) precludes claims “[f]inally adjudicated on the merits on appeal or in any previous collateral proceeding.”

Waiver Bar - Arizona's Rule 32.2(a) precludes PCR review of three types of claims, those too early, those already decided, and those too late. Respondents rely primarily on the latter, under Rule 32.2(a)(3), which provides that a claim may not be brought in a petition for post-conviction relief because it has “been waived at trial, on appeal, or in any previous collateral proceeding." Ariz.R.Crim.P. 32.2(a)(3).

Under this rule, some claims may be deemed waived if the State simply shows "that the defendant did not raise the error at trial, on appeal, or in a previous collateral proceeding." Stewart v. Smith, 202 Ariz. 446, 449, 46 P.3d 1067, 1070 (2002) (quoting Ariz.R.Crim.P. 32.2, Comments). But see State v. Diaz, 236 Ariz. 361, 340 P.3d 1069 (2014) (failure of PCR counsel, without fault by petitioner, to file timely petition in prior PCR proceedings did not amount to waiver of claims of ineffective assistance of trial counsel). For others of "sufficient constitutional magnitude," the State "must show that the defendant personally, ''knowingly, voluntarily and intelligently' [did] not raise' the ground or denial of a right." Id.

The requirement for a personal waiver is limited to those constitutional rights “that can only be waived by a defendant personally.” State v. Swoopes, 216 Ariz. 390, 399, 166 P.3d 945, 954 (App. Div. 2, 2007). Indeed, in coming to its prescription in Stewart v. Smith, the Arizona Supreme Court identified: (1) waiver of the right to counsel, (2) waiver of the right to a jury trial, and (3) waiver of the right to a twelve-person jury under the Arizona Constitution, as among those rights which require a personal waiver. 202 Ariz. at 450, 46 P.3d at 1071. Claims based upon ineffective assistance of counsel are determined by looking at “the nature of the right allegedly affected by counsel's ineffective performance. Id.

Here, none of Petitioner's claims are of the sort requiring a personal waiver, and Petitioner makes no claims of ineffective assistance of counsel. Accordingly, any of Petitioner's claims not fairly presented on direct appeal would now be precluded from presentation in a successive PCR proceeding, and thus are now procedurally defaulted.

Timeliness Bar - Even if not barred by preclusion, Petitioner would now be barred from raising his claims by Arizona's time bars. Ariz.R.Crim.P. 32.4 requires that petitions for post-conviction relief (other than those which are “of-right”) be filed “within ninety days of the entry of judgment and sentence or within thirty days of the issuance of the order and mandate in the direct appeal, whichever is the later.” See State v. Pruett, 185 Ariz. 128, 912 P.2d 1357 (App. 1995) (applying 32.4 to successive petition). That time has long since passed.

Exceptions - Rules 32.2 and 32.4(a) do not bar dilatory claims if they fall within the category of claims specified in Ariz.R.Crim.P. 32.1(b) through (h). See Ariz. R. Crim. P. 32.2(b) (exceptions to preclusion bars); Ariz. R. Crim. P. 32.4(a) (exceptions to timeliness bar). Petitioner has not asserted that any of these exceptions are applicable to his claims. Nor does it appear that such exceptions would apply.

Petitioner makes no claims covered by paragraphs 32.1(b) (lack of jurisdiction), (d) (expired sentence), (f) (untimely notice of appeal), (g) (change in the law), (h) clear and convincing evidence precluding conviction.

Petitioner does assert challenges to his sentencing in Ground 9. But the exception in paragraph (c) only applies where the claim is that “the sentence as imposed is not authorized by law.” Ariz. R. Crim. Proc. 32.1(c). Petitioner does not assert such a claim, instead arguing the sentence imposed was cruel and unusual.

In Grounds 2(d) and 8(a) Petitioner does assert Brady challenges that arguably might involve newly discovered facts (i.e. “discovered after the trial or sentencing,” Ariz. R. Crim. Proc. 32.1(e)(1). But Petitioner proffers nothing to show that the newly discovered evidence “probably would have changed the judgment or sentence.” Ariz. R. Crim. Proc. 32.1(e).

In Ground 8(d) Petitioner asserts a due process challenge based on the appellate court's failure to consider an actual innocence claim. However, Petitioner does not raise a claim directly asserting his actual innocence. Accordingly, this claim would not be governed by the exception for claims of actual innocence under Rule 32.1(h).

Therefore, none of the exceptions apply, and Arizona's time and waiver bars would prevent Petitioner from returning to state court. Thus, Petitioner's claims that were not fairly presented are all now procedurally defaulted.

Grand Jury Challenges Untimely - Regarding Ground 1(c), Respondents also rely on Arizona Rule of Criminal Procedure 12.9(b) which requires challenges to a grand jury's probable cause determination to be brought “no later than 45 days after the certified transcript and minutes of the grand jury proceedings are filed or no later than 45 days after [his] arraignment, whichever is later.” (Answer, Doc. 12 at 17.)

Here, Petitioner was arraigned on May 30, 2017, and the grand jury transcripts were filed on June 9, 2017. Thus, any challenge to the grand jury was due by Monday, July 24, 2017. It is true that Petitioner's claim in Ground 1(c) is not just that the grand jury did not have sufficient evidence before them to make a finding of probably cause, but that the prosecution engaged in misconduct because they knew there was insufficient evidence to present to the grand jury. However, Arizona has long held that “Rule 12.9 is both ‘[t]he defendant's sole procedural vehicle for challenging grand jury proceedings' and ‘the appropriate method to challenge prosecutorial misconduct before the grand jury.” State v. Merolle, 227 Ariz. 51, 52-53, 251 P.3d 430, 431-32 (Ct. App. 2011), as amended (June 1, 2011) (quoting State v. Young, 149 Ariz. 580, 585, 586, 720 P.2d 965, 970, 971 (App. 1986)).

Petitioner makes no argument that this Rule is not an independent and adequate state ground sufficient to bar federal habeas review. See infra Bennett v. Mueller, 322 F.3d 573 (9th Cir.2003). The undersigned finds that it is. See Stroble v. Shinn, No. CV-20-0687-PHX-SRB-MHB, 2021 WL 1601282, at *6 (D. Ariz. Mar. 29, 2021), report and recommendation adopted, 2021 WL 1597906 (D. Ariz. Apr. 23, 2021) (finding 12.9(b) independent and adequate).

Petitioner does argue that Rule 12.9 cannot bar his claim of “constitutional error as opposed to a challenge to a sufficiency of a grand jury determination.” (Reply, Doc. 26 at 25.) But Petitioner proffers no explanation or authority to support this contention. To the contrary, there is no limit on the types of claims in a § 2254 proceeding which can be precluded by procedural bars and/or defaults.

Accordingly, Petitioner's claim in Ground 1(c) is also procedurally defaulted under Rule 12.9(b), not just Rules 32.3(a)(3) and 32.4.

b. Invalid Procedural Default Arguments

Although the foregoing procedural bars are sufficient to render procedurally defaulted all of Petitioner's federal claims not fairly presented on direct appeal, Respondents assert a variety of other procedural default arguments that must be rejected.

No 32.2(a)(2) Preclusion for Claims Not in Direct Appeal - Respondents assert with regard to Grounds 1(c), 1(d), 5, 6(a), 6(c), 8(b)(ii), and 8(b)(iii) that the claims were not fairly presented as federal claims in Petitioner's direct appeal, but also assert that it is now barred under Ariz. R. Crim. Proc. 32.2(a)(2). However, Rule 32.2(a)(2) (the “already decided” bar) only precludes PCR relief based on claims that were “finally adjudicated on the merits” in an earlier proceeding. If Petitioner's federal claims were not fairly presented in his direct appeal, and not addressed by the appellate court sua sponte, then they cannot have been finally adjudicated in that proceeding. Rather, the applicable rule is Arizona's waiver rule in Rule 32.2(a)(3).

But, [Rule 32.2(a)(2)] merely provides a claim “finally adjudicated on the merits in an appeal or in any previous post-conviction proceeding” is precluded, it does not address a claim waived in such an earlier proceeding. Ariz. R. Crim. P. 32.2(a)(2). Rather, Rule 32.2(a)(3) applies when a claim has been “waived at trial or on appeal, or in any previous post-conviction proceeding.”

State v. Chavez, 2022 WL 16832645, at *1 (Ariz.Ct.App. Nov. 9, 2022) (unpublished), review denied (Apr. 4, 2023).

No 32.2(a)(2) Preclusion for Claims Raised in First PCR - Respondents argue Petitioner is precluded under Rule 32.2(a)(2) from raising claims in a successive PCR petition that were asserted in his first PCR proceeding, i.e. Grounds 2(c), 8(b)(i), and 9(a). However, no claims in Petitioner's first PCR proceeding were “finally adjudicated on the merits.” Ariz. R. Civ. Proc. 32.2(a)(2). Rather, they were effectively dismissed without prejudice to allow them to be raised in the still pending direct appeal. See e.g. State v. Dunbar, No. 2 CA-CR 2019-0298-PR, 2020 WL 2569653 (Ariz.Ct.App. May 21, 2020) (unpublished) (claim dismissed from PCR pursuant to 32.2(a)(1) reinstated and remanded where appeal was terminated in the interim).

No 32.2(a)(3) Preclusion for Claims Not Raised in First PCR - Respondents also argue that under Rule 32.2(a)(3), Petitioner procedurally defaulted his state remedies on claims that could have been presented in his first PCR petition, but were not, i.e. Grounds 2(a), 5, 6(b), 6(c), 8(b)(ii), 8(b)(iii), 8(b)(iv), 8(b)(v), 8(c)(i), 10(a), and 10(b). (Answer, Doc. 12 at 18-19, 21-22.) However, preclusion under Rule 32.2(a)(3) only applies to claims that were waived in the previous proceedings. Such waiver applies only to claims that could have been raised but were not. State v. Petty, 225 Ariz. 369, 373, 238 P.3d 637, 641 (Ct. App. 2010). Under Rule 32.2(a)(1), Petitioner was precluded from raising in his first PCR petition any claims still raisable in his still pending direct appeal.²⁴ Thus, no waiver under 32.2(a)(3) occurred by failure to bring claims in Petitioner's premature PCR petition.

24 The only exception would be claims of ineffective assistance of counsel, which in Arizona are not raisable on direct appeal. State ex rel. Thomas v. Rayes, 214 Ariz. 411, 415, 153 P.3d 1040, 1044 (2007) (“defendant may bring ineffective assistance of counsel claims only in a Rule 32 post-conviction proceeding-not before trial, at trial, or on direct review”). Petitioner raises no such claims in his habeas petition.

Procedural Default of State Law Claims - Respondents argue Ground 1(e) (indictment inadequate) was not fairly presented as a federal claim and thus is procedurally defaulted under Arizona's waiver and timeliness bars in PCR proceedings. (Answer, Doc. 12 at 18.) Respondents then go further and mount a conflicting argument that because Ground 1(e) was raised as a state law claim on direct appeal, it is now precluded under Arizona's preclusion bar for previously decided claims, Ariz. R. Crim. Proc. 32.2(a)(2). (Id.)

But Respondents proffer nothing to suggest that Petitioner's presentation on appeal of the related state law claim amounted to a sufficient presentation of the federal law claim for Rule 32.2(a)(2) to apply. Indeed, such a conclusion would mean that Arizona treats presentation of related state law claims as presentation of the federal claim, amounting to proper exhaustion of both claims. See Koerner v. Grigas, 328 F.3d 1039 (9th Cir. 2003); Ceja v. Stewart, 97 F.3d 1246, 1253 (9th Cir.1996). Clearly, Respondents do not accept that proposition.

3. Procedural Bar on Independent and Adequate State Grounds

In addition to relying on procedural default, Respondents argue that Petitioner was procedurally barred by the state courts on his claims in Grounds 1(b), 2(b) and 9(a).

Related to the concept of procedural default is the principle of barring claims actually disposed of by the state courts on state grounds. “[A]bsent showings of ‘cause' and ‘prejudice,' federal habeas relief will be unavailable when (1) ‘a state court [has] declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement,' and (2) ‘the state judgment rests on independent and adequate state procedural grounds.' ” Walker v. Martin, 562 U.S. 307, 316 (2011) (cleaned up).

No Procedural Bar Based on “Raisable” Preclusion in PCR Court - With Grounds 1(b), 2(b), and 9(a), Respondents rely upon the PCR Court's purported application of the preclusion bar in Ariz. R. Crim. Proc. 32.2(a)(2) as a procedural bar precluding federal habeas review. However, the PCR court did not rely on Rule 32.2(a)(2) in dismissing the PCR Petition.

Rather, the PCR court noted that the State argued “all these claims are precluded under Rule 32.2[(a)](1) because Defendant's direct appeal is still pending before the Court of Appeals.” (Exh. AA, Order 1/24/22 at 1 (emphasis added).) Indeed the PCR court's ruling was issued on January 24, 2022 (and filed on January 25, 2022), when Petitioner's direct appeal was still pending before the Arizona Court of Appeals, which did not issue its decision (Exh. R) until March 1, 2022.

Rule 32.2(a)(2) only applies where a claim was “finally adjudicated on the merits in an appeal or in any previous post-conviction proceeding.” Thus, the PCR court's conclusion that the same claims raised in the PCR proceeding had been raised on direct appeal, and thus they were “precluded” was not the application of Rule 32.2(a)(2), but of Rule 32.2(a)(1), which precludes PCR relief on a claim “still raiseable on direct appeal under Rule 31 or in a post-trial motion under Rule 24.” Ariz. R. Crim. Proc. 32.2(a)(1) (emphasis added). Such a ruling was not a final adjudication of a claim, but rather, effectively, a dismissal without prejudice to the claim being raised in such other proceedings.²⁵ See e.g. State v. Dunbar, No. 2 CA-CR 2019-0298-PR, 2020 WL 2569653 (Ariz.Ct.App. May 21, 2020) (unpublished) (claim dismissed from PCR pursuant to 32.2(a)(1) reinstated and remanded where appeal was terminated in the interim). It is only judgments finally disposing of a claim on state law grounds that preclude habeas review.²⁶ Cf. Stewart v. Martinez-Villareal, 523 U.S. 637, 638 (1998) (dismissal of habeas petition as premature was not “an adjudication of his claim,” and thus did not render subsequent petition “successive”).

25 To the extent the PCR court intended to rely on waiver under Rule 32.2(a)(2), that ruling was arguably not adequate to bar habeas relief. See Powell v. Lambert, 357 F.3d 871, 874 (9th Cir. 2004) (to constitute an adequate state ground, the procedural rule must be “clear, consistently applied, and well-established at the time of petitioner's purported default”). Because Respondents have not been given the opportunity to point to precedent regularly applying Rule 32.2(a)(2) prior to the conclusion of a still pending direct appeal, the undesigned does not resolve this issue, nor rely on such a procedural bar.

26 Respondents' misplaced reliance on Rule 32.2(a)(1) is understandable. Caselaw from this district is full of citations to Rule 32.2(a)(1) and quotations of its “raisable on direct appeal” language. But the substance those cases make clear that what is being applied is either Rule 32.2(a)(2) and its “finally adjudicated.. .in an appeal” bar or Rule 32.2(a)(3) and its “waived.on appeal” bar. See e.g. Ortloff v. Chandler, No. CV-16-01910-PHX-SRB, 2019 WL 296205, at *4 (D. Ariz. Jan. 23, 2019) (citing 32.2(a)(1) but relying on 32.2(a)(3)'s bar of claims “waived.on appeal”); and Olmos v. Ryan, No. CV-11-344-PHX-GMS-BSB, 2012 WL 8466125, at *9 (D. Ariz. Dec. 19, 2012), report and recommendation adopted in part, 2013 WL 3199831, *8 (D. Ariz. June 24, 2013).

4. Independence and Adequacy of State Procedural Bars

In Bennett v. Mueller, 322 F.3d 573 (9th Cir.2003), the Ninth Circuit addressed the burden of proving the independence and adequacy of a state procedural bar.

Once the state has adequately pled the existence of an independent and adequate state procedural ground as an affirmative defense, the burden to place that defense in issue shifts to the petitioner. The petitioner may satisfy this burden by asserting specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule. Once having done so, however, the ultimate burden is the state's.

Id. at 584-585.

Petitioner makes no argument that any of the procedural rules relied upon by Respondents in arguing procedural default or procedural bar are not independent and adequate. The courts have found independent and adequate: the waiver bar in Rule 32.2(a)(3), Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014); the time bar in Rule 32.4, Simmons v. Schriro, 187 Fed.Appx. 753, 754 (9th Cir. 2006) (unpublished decision); and the grand jury claim time bar in Rule 12.9(b), Stroble v. Shinn, No. CV-20-0687-PHX-SRB-MHB, 2021 WL 1601282, at *6 (D. Ariz. Mar. 29, 2021), report and recommendation adopted, 2021 WL 1597906 (D. Ariz. Apr. 23, 2021).

Petitioner does conclusorily argue that that the PCR court's process was inadequate to protect his rights because the court failed to rule on his claims. (Reply Doc. 26 at 28.) But that fails to show that the state procedural bars actually applied by that court (or presumed now applicable by this Court) were inadequate. Further, to be “adequate,” the state law or rule upon which the state court's ruling rests must be “firmly established” and “regularly applied” at the time of its application. Harris v. Reed, 489 U.S. 255 (1989). Petitioner proffers nothing to show that the procedural rules relied on by the PCR court to bar (as opposed to dismiss as premature) any of his claims in this case.

5. Conclusions Re Exhaustion

Respondents raise no exhaustion defense as to Grounds 1(d), 1(f), 2(d), 4, 7, 8(a), 8(c)(ii), 8(c)(iii), 8(d), 8(e), and 9(c).

Based upon the foregoing, the undersigned concludes that Petitioner:

a. properly exhausted his remedies as to Ground 3;

b. procedurally defaulted on his malicious prosecution claim in Ground 1, and the claims in Grounds 1(a), 1(b)/1(c), 1(e), 2(a), 6(a), 6(b), 6(c), 8(b)(i), 8(b)(ii), 8(b)(iv), 8(b)(v), 8(c)(i), 9(a), 9(b), 10(a) and 10(b).

c. was not procedurally barred on independent and adequate state grounds on any of his grounds for relief.

6. Cause and Prejudice

If the habeas petitioner has procedurally defaulted on a claim, he may not obtain federal habeas review of that claim absent a showing of “cause and prejudice” sufficient to excuse the default. Reed v. Ross, 468 U.S. 1, 11 (1984).

Cause - "Cause" is the legitimate excuse for the default. Thomas v. Lewis, 945 F.2d 1119, 1123 (1991). "Because of the wide variety of contexts in which a procedural default can occur, the Supreme Court 'has not given the term "cause" precise content.'" Harmon v. Barton, 894 F.2d 1268, 1274 (11th Cir. 1990) (quoting Reed, 468 U.S. at 13). The Supreme Court has suggested, however, that cause should ordinarily turn on some objective factor external to petitioner, for instance:

... a showing that the factual or legal basis for a claim was not reasonably available to counsel, or that "some interference by officials", made compliance impracticable, would constitute cause under this standard.

Murray v. Carrier, 477 U.S. 478, 488 (1986) (citations omitted).

The Petition proffers no cause for any exhaustion failure. Indeed, Petitioner routinely crossed out that portion (question “(b)”) of the petition form (Petition, Doc. 1 at “6” - “11”), or simply failed to include it in his added blank pages (id. at “11(A)” -“11(L)”).

The Reply asserts that the PCR court erred in dismissing his claims (Reply, Doc. 26 at 15, 27-30), arguing that the PCR court improperly treated his petition as “successive,” citing the PCR court's January 25, 2022 order (Exh. AA). That Order did not dismiss the petition or any claims as successive (and thus precluded under Ariz. R. Crim. Proc. 32.2(a)(2) or (a)(3)), but as premature since still pending or raisable on direct appeal, and thus precluded under 32.2(a)(1). Petitioner fails to show any error.

Petitioner argues the PCR court's earlier order was ambiguous and contradictory because it dismissed from his PCR Notice any constitutional claims under 32.1(a), while allowing him to proceed on his claims under 32.1(e) and (h). (Reply, Doc. 26 at 27.) But the nature of those claims are not ones asserting errors at trial remediable on appeal. Rule 32.1(e) authorizes claims based on newly discovered facts. Such a claim does not rely upon trial error subject to appeal, but upon Arizona's choice to allow convictions to be set aside based on such newly discovered evidence. Similarly, Rule 32.1(h) authorizes claims the facts of which establish a form of actual innocence. Again, this rule does not depend upon an appealable error, but upon any claim showing such innocence. There was no inconsistency in the PCR court's rulings.

Finally, Petitioner complains that the PCR court's process was inadequate to protect his rights because the court failed to rule on his claims. (Reply Doc. 26 at 28.) The PCR court did not fail to rule on Petitioner's claims. It addressed each claim. That they may have been addressed on state procedural grounds does not render the decision inadequate. More importantly, Petitioner fails to show how any inadequacy of the PCR proceedings precluded him from properly exhausting his remedies in his direct appeal, where his procedural defaults occurred.²⁷

27 To the extent that Petitioner might intend to raise this argument as a ground for relief, he may nor properly assert a new claim in a reply. “The district court need not consider arguments raised for the first time in a reply brief.” Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007). See Fed.R.Civ.P. 15 (amendment of pleadings).

Prejudice - Both "cause" and "prejudice" must be shown to excuse a procedural default, although a court need not examine the existence of prejudice if the petitioner fails to establish cause. Engle v. Isaac, 456 U.S. 107, 134 n. 43 (1982); Thomas v. Lewis, 945 F.2d 1119, 1123 n. 10 (9th Cir.1991). Petitioner has filed to establish cause for his procedural default. Accordingly, this Court need not examine the merits of Petitioner's claims or the purported "prejudice" to find an absence of cause and prejudice.

7. Actual Innocence

The standard for “cause and prejudice” is one of discretion intended to be flexible and yielding to exceptional circumstances, to avoid a “miscarriage of justice.” Hughes v. Idaho State Board of Corrections, 800 F.2d 905, 909 (9th Cir. 1986). Accordingly, failure to establish cause may be excused “in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Murray v. Carrier, 477 U.S. 478, 496 (1986) (emphasis added). Although not explicitly limited to actual innocence claims, the Supreme Court has not yet recognized a "miscarriage of justice" exception to exhaustion outside of actual innocence. See Hertz & Lieberman, Federal Habeas Corpus Pract. & Proc. §26.4 at 1229, n. 6 (4th ed. 2002 Cumm. Supp.). The Ninth Circuit has expressly limited it to claims of actual innocence. Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir. 2008).

A petitioner asserting his actual innocence of the underlying crime must show "it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence" presented in his habeas petition. Schlup v. Delo, 513 U.S. 298, 327 (1995). A showing that a reasonable doubt exists in the light of the new evidence is not sufficient. Rather, the petitioner must show that no reasonable juror would have found the defendant guilty. Id. at 329. This standard is referred to as the “Schlup gateway.” Gandarela v. Johnson, 286 F.3d 1080, 1086 (9th Cir. 2002).

Moreover, to pass through the Schlup gateway, not just any evidence of innocence will do; the petitioner must present “new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” Schlup, 513 U.S. at 324.

Here, Petitioner argues in Ground 8(d) that the appellate court erred in failing to decide whether he was actually innocent. (Petition, Doc. 1 at 22 (“11(i)”).) But he offers nothing to suggest that he has new credible evidence of his actual innocence. Nor does he show that he offered such evidence to the state appellate court. At best, he argued various evidentiary errors and insufficiency of the evidence. Neither argument establishes actual innocence.

Evidentiary errors do not establish actual innocence. Indeed, in making a finding on actual innocence, the federal habeas court must consider all the evidence, old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under rules of admissibility that would govern at trial. House v. Bell, 547 U.S. 518, 538 (2006).

Nor does a showing of insufficient evidence establish actual evidence. A finding of procedural "actual innocence" is not to be based upon a finding that insufficient evidence to support the charge was presented at trial, but rather upon affirmative evidence of innocence. See U.S. v. Ratigan, 351 F.3d 957 (9th Cir. 2003) (lack of proof of FDIC insurance in a bank robbery case, without evidence that insurance did not exist, not sufficient to establish actual innocence). “It is important to note in this regard that ‘actual innocence' means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998).

8. Summary re Procedural Default

Based on the foregoing, Petitioner's procedurally defaulted his state remedies on his malicious prosecution claim in Ground 1, and the claims in Grounds 1(a), 1(b)/1(c)/1(f), 1(e), 2(a), 6(a), 6(b), 6(c), 8(b)(i), 8(b)(ii), 8(b)(iv), 8(b)(v), 8(c)(i), 9(a), 9(b), 10(a) and 10(b). Petitioner establishes neither cause and prejudice nor actual innocence to excuse these defaults, and these claims must be dismissed with prejudice.

D. MERITS OF EXHAUSTED CLAIMS

Based upon the foregoing, this Court must address the merits of Grounds 2(d), 3, 5, 7, 8(a), and 9(c).²⁸

28 Respondents address on the merits the claims in Grounds 1(d), 1(e), 1(f), 2(d), 7, 8(a), 8(b)(ii), and 9(c). The undersigned has concluded Grounds 1(d), 1(e), and 1(f) must be dismissed for failure to state a claim, and Ground 8(b)(ii) fails to state a cognizable habeas claim. The merits of Ground 3 have been addressed in the Supplemental Answer and Supplemental Reply.

1. Standards of Review

While the purpose of a federal habeas proceeding is to search for violations of federal law, in the context of a prisoner “in custody pursuant to the judgment of a State court,” 28 U.S.C. § 2254(d) and (e), not every error justifies relief.

Harmless Error - On direct appeal, a constitutional trial error can be held excused only if it was harmless beyond a reasonable doubt. Brecht v. Abrahamson, 507 U.S. 619, 630 (1993). On habeas review, however, the standard for relief is much higher. Rather than requiring a showing by the government beyond a reasonable doubt of no harm, on habeas, relief is proper only if the federal court has grave doubt (i.e. the court is at least in equipoise) about whether a trial error of federal law had substantial and injurious effect or influence. O'Neal v. McAninch, 513 U.S. 432, 436 (1995).²⁹

29 An exception applies to “structural error,” e.g. complete denial of counsel, biased trial judge, racial discrimination in selection of grand jury, denial of self-representation, denial of public trial, defective reasonable doubt instruction. Neder v. United States, 527 U.S. 1, 8 (1999).

Deferential Review of Merits Decisions - Where the state court has rejected a claim on the merits, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied [the law] incorrectly.” Woodford v. Visciotti, 537 U.S. 19, 24- 25 (2002) (per curiam). See Johnson v. Williams, 133 S.Ct. 1088, 1091-92 (2013) (adopting a rebuttable presumption that a federal claim rejected by a state court without being expressly addressed was adjudicated on the merits).

Rather, in such cases, 28 U.S.C. § 2254(d) provides restrictions on the habeas court's ability to grant habeas relief based on legal or factual error. This statute “reflects the view that habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102-03 (2011).

Errors of Law - To justify habeas relief based on legal error, a state court's merits-based decision must be “contrary to, or involve[ ] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” before relief may be granted. 28 U.S.C. §2254(d)(1).

The Supreme Court has instructed that a state court decision is “contrary to” clearly established federal law “if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases or if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [its] precedent.” Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (internal quotation marks omitted).

To show an unreasonable application, “a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103.

Errors of Fact - Similarly, the habeas courts may grant habeas relief based on factual error only if a state-court merits decision “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)(2). "Or, to put it conversely, a federal court may not second-guess a state court's fact-finding process unless, after review of the state-court record, it determines that the state court was not merely wrong, but actually unreasonable." Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004). “Moreover, implicit findings of fact are entitled to deference under § 2254(d) to the same extent as explicit findings of fact.” Blankenship v. Hall, 542 F.3d 1253, 1272 (11th Cir. 2008). See also Watkins v. Rubenstein, 802 F.3d 637, 649 (4th Cir. 2015).

De Novo Review - Where there is no state-court merits-based decision, Johnson v. Williams, 133 S.Ct. 1088, 1091-92 (2013), or the standards of § 2254(d) have been met, the habeas court reviews the state judgment de novo.

But even where the habeas court is reviewing a claim de novo, there is a well-established presumption of correctness of state court findings of fact. This presumption has been codified at 28 U.S.C. § 2254(e)(1), which states that "a determination of a factual issue made by a State court shall be presumed to be correct" and the petitioner has the burden of proof to rebut the presumption by "clear and convincing evidence." This presumption of correctness applies not only to the explicit factual findings by the state court, but to the implicit factual findings as well. See Tinsley v. Borg, 895 F.2d 520, 525 (9th Cir.1990) (implicit factual findings are entitled to a presumption of correctness in appropriate circumstances); see also Taylor v. Horn, 504 F.3d 416, 433 (3d Cir.2007) (“Implicit factual findings are presumed correct under § 2254(e)(1) to the same extent as express factual findings.”).

Evidentiary Hearings - Further, even when a claim is reviewed de novo, the petitioner may not obtain an evidentiary hearing or otherwise introduce new evidence if he has “failed to develop” the record in the state courts, unless he meets certain stringent showings related to justification for the delay in developing the record, 28 U.S.C. § 2254(e)(2)(A), and that the new evidence will show a lack of evidence to convict, 28 U.S.C. § 2254(e)(2)(B).

Finally, even where permitted an evidentiary hearing the petitioner “must meet one of the Townsend [v. Sain, 372 U.S. 293 (1963)] factors and make colorable allegations that, if proved at an evidentiary hearing, would entitle him to habeas relief." Insyxiengmay v. Morgan, 403 F.3d 657, 670 (9th Cir. 2004).

Applicable Decisions - In evaluating state court decisions, the federal habeas court looks through summary opinions to the last reasoned decision. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).

2. Ground 1(d) and 9(c)- Duplicitous/Multiplicitous Indictment

In Ground 1(d), Petitioner argues his indictment was duplicitous. In Ground 9(c) Petitioner argues that his sentences violate double jeopardy because the indictment was duplicitous. Because Petitioner failed to adequately allege a claim of duplicity, but did adequately allege a claim of multiplicity, the undersigned has liberally construed these claims as asserting multiplicity. However, although a clam of duplicity was raised to the state court, a claim of multiplicity was not, and thus these claims are procedurally defaulted.

In an abundance of caution, the undersigned addressed the merits of these grounds both on the basis of duplicity and on the basis of multiplicity.

Respondents concede a duplicity argument was raised to but not explicitly addressed by the Arizona Court of Appeals. Nonetheless, they argue that under Richter it must be treated as a merits decision, and that there was a proper basis to reject it, i.e. that Petitioner's claim is really one of multiplicity (single offense in more than one count), not duplicity (more than one offense in a single count), and that each of the counts set out a different offense, under the standard in Blockberger v. United States, 284 U.S. 299 (1932). Respondents further argue that any error was harmless, inasmuch as his sentences were concurrent.

Petitioner does not reply.

Respondents do not address whether Petitioner's multiplicity claim was considered by the trial court. Thus, the Court cannot discern whether it is reviewing the possibility of any reasonable basis to dispose of this claim under Richter, or the propriety of the trial court's actual decision under Wilson.

Even so, even if considered de novo, the claims (whether based on duplicity or multiplicity) are without merit.

Treating the claim as one of duplicity, Petitioner cannot meet the standard under 28 U.S.C. § 2254(d) for a legal challenge because “[t]he U.S. Supreme Court has never held that an indictment is deficient under the federal constitution merely because it contains a duplicitous count.” Covarrubias v. Gower, 2016 WL 1569972, at *22 (N.D. Cal. Apr. 19, 2016). Moreover, even if such a claim were cognizable, Petitioner fails to show that more than one offense was charged in any count, i.e.: Count 1, fraudulent schemes and artifices; Count 2, theft of a means of transportation by control; and Count 3, theft of a means of transportation by conversion.³⁰

30 An indictment is not duplicitous merely because a count identifies several ways in which the one offense may be committed. “When a statute specifies two or more ways in which an offense may be committed, all may be alleged in the conjunctive in one count and proof of any of those acts conjunctively charged may establish guilt.” U.S. v. Urrutia 897 F.2d 430, 432 (9th Cir. 1990). The Supreme Court has noted that “[a] single offense should normally be charged in one count rather than several, even if different means of committing the offense are alleged.” Sanabria v. U.S. 437 U.S. 54 66 n. 20 (1978).

Treating the claim as one of multiplicity, Petitioner fails to show that a single one offense was charged in more than one count of the Indictment. As noted above, each count contained distinct charges. To the extent that Petitioner relies on the various charges arising out of a single course of conduct, his reliance is misplaced. “The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304 (1932). Petitioner proffers nothing to show complete identity between the elements of the three counts in his indictment.

Grounds 1(d) and 9(c) are without merit and must be denied.

3. Ground 2(b)/2(c)

In Ground 2(b)/2(c), Petitioner alleges a denial of due process by the admission of inadmissible evidence. (Petition, Doc. 1 at 8-8(a).) The undersigned has liberally construed Ground 2(b)/2(c) to be based on the admission at trial of the computer-generated copies of Petitioner's rental agreement for the rental car, which was purportedly unduly prejudicial.

State Court Decision - Although Petitioner argued this claim to the state court, as discussed hereinabove in Section IV(C)(1)(c)(2), the state court did not explicitly rule on this due process claim. Despite the lack of an explicit ruling the undersigned finds no reason to conclude that this claim was disposed of other than on the merits. Accordingly, that decision is subject to deferential review under 28 U.S.C. § 2254(d).

Moreover, in addressing other claims, the state court made the following relevant factual findings:

Gwen argues he was prejudiced by the State's failure to disclose the original Jeep rental agreement and original payment receipts for the rental. The record does not support this contention.

The State sent Gwen copies of the original rental agreement and the payment receipts in the mail and arranged for Gwen's attorney to view the original rental agreement in person.

(Exh. R, Mem. Dec. 3/1/22 at ¶ 14.)

Application of Law - To support his due process claim, Petitioner must show state court "error" that was "so arbitrary and fundamentally unfair that it violated federal due process." Jammal, 926 F.2d at 920. Petitioner must begin by showing error.

No State Error - Petitioner cites to various Federal Rules of Evidence (103(a); 104(a), (b), (c)(3); 403; 901(c); “(7)(a);” 902(a), (b), 1002, 1003). Such rules are not applicable to Petitioner's criminal conviction, which occurred in the state courts. See Fed.R.Evid. 101(a) (“These rules apply to proceedings in United States courts.”). Rather, his state proceedings were governed by the Arizona Rules of Evidence. See Ariz. R. Evid. 101(a) (“These rules apply to proceedings in courts in the State of Arizona.”); Ariz. R. Evid. 1101(b) (“These rules apply generally.. .to criminal cases and proceedings”).

The undersigned liberally construes the Petition to rely on the comparably numbered rules of the Arizona Rules of Evidence, the most directly relevant of which is Arizona Rules of Evidence 1003, which provides: “A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original's authenticity or the circumstances make it unfair to admit the duplicate.”

Here, Petitioner failed to present any facts or evidence to the state court to show that there was a genuine question about the authenticity of the original agreement, or other circumstance made it unfair to admit the duplicate. At best, he (wrongly) argued the state had relied on a copy without producing the original, and conclusorily asserted that the copies were “non-identical” (Exh. Q, Supp. Br. at 24, 26), and disclosure had been delayed (id. at 25).

Petitioner offered nothing to show that there were material deviations between the various duplicates and/or the original. Petitioner complained to the trial court about a hole punch, a handwritten credit card number in blue ink on the copy. (Exh. BB, RT 1/5/21 at 28-29.) But Petitioner fails to explain how those rendered the duplicates an inaccurate depiction of the original. He does not, for example, suggest they resulted in a misrepresentation of the terms of his rental contract. The Rule does not mandate an identical duplicate. What is required is an accurate depiction of the relevant information, in this instance the terms of the agreement. See e.g. United States v. Stewart, 420 F.3d 1007, 1021 n. 13 (9th Cir. 2005) (permitting digital copy of analog recording, under Fed.R.Evid. 1003); and Amoco Prod. Co. v. United States, 619 F.2d 1383, 1391 (10th Cir. 1980) (under Fed.R.Evid. 1003, duplicate inadmissible because the most critical part of the original was not completely reproduced).³¹

31 Federal precedent applying the federal counterpart of the Arizona Rules of Evidence is persuasive in the Arizona courts. State v. Winegardner, 243 Ariz. 482, 413 P.3d 683 (2018).

Nor does he suggest the differences rendered the evidence unfair. Indeed, at trial the parties discussed with the trial court the various copies and original (Exhibit 8) of the agreement, concluding:

THE COURT: Okay. So that we don't get confused tomorrow, can we simply not use Exhibit Number 8?

MR. ASAY: Yes, Your Honor.

THE COURT: Okay. Mr. Gwen, would you agree with that, that we're not going to use Exhibit Number 8?

MR. GWEN: Yes, Your Honor. That's agreeable to me. * * *

THE COURT: For now the Clerk's going to hold on to these originals. I'm not going to mark them in any way because they're relatively small and I don't want to put a sticker on them because we don't need to. We have copies of those.

As long as the parties agree that these copies are true and accurate copies of the originals, then this is what we can use throughout the trial. But again, Mr. Gwen, if you want to -- want the original to be shown to a witness or something like that, that's fine. We can do that. Okay? Everybody satisfied with that?

MR. GWEN: Yes, Your Honor.

(Exh. BB, RT 1/5/21 at 23-26.)

Petitioner argued the duplicates had not been properly authenticated, citing Ariz. R. Evid. 901. But that rule permits authentication from testimony of a witness with knowledge that the “item is what is claimed to be.” Ariz. R. Evid. 901(b)(1). The prosecution presented testimony of the witness, ML, the rental company employee who rented the Jeep to Petitioner, that the copy admitted into evidence was the agreement signed by Petitioner. (Exh. CC, R.T. 1/6/21 at 52.) Petitioner fails to explain why this was not sufficient authentication.³²

32 Petitioner raised these arguments prior to presentation of the prosecution's case as part of a challenge to prior rulings, such as bail, etc. (See Exh. BB, RT 1/5/21 at 23.) But the only use of such exhibits relevant to this habeas action, is the use made of these exhibits at trial.

No Egregious Error - Even if this Court could now conclude that, somehow, the state court's decision was contrary to state law, Petitioner fails to explain how such error was sufficiently egregious as to amount to a violation of due process.

Any Error Harmless - Petitioner offers nothing to show the admission of the agreement copies rather than the original was prejudicial. Thus, any error was harmless, requiring this claim be denied. O'Neal, 513 U.S. at 436.

Ground 2(b)/2(c) is without merit and must be denied.

4. Grounds 2(d) and 8(a) - Brady

Parties' Arguments - In Ground 2(d), Petitioner alleges his due process rights were violated by trial court's evidentiary rulings on the failure of police to disclose the original rental agreement in violation of Brady v. Maryland, 373 U.S. 83 (1963). (Petition, Doc. 1 at 8-8A.) In Ground 8(a) Petitioner again alleges he was denied due process because the State failed to timely disclose the original rental agreement in violation of Brady, and instead allowed the admission of a copy. (Id. at 11(F)-11(G).)

Respondents argue that the Arizona Court of Appeals denied this claim on the merits and Petitioner cannot show that the state court's resolution was contrary to or an unreasonable application of Supreme Court law or based on an unreasonable determination of the facts. They argue: (1) the state court properly rejected the claim finding no suppression, and thus its decision was not contrary to or an unreasonable application of Brady; (2) the state court's finding was not only not unreasonable but affirmatively supported by evidence in the record; (3) Petitioner's claim that the copies received were forged is unsupported and refuted by evidence at trial; and (4) Petitioner's rental of and absconding with the jeep is supported by other evidence, thus eliminating any potential prejudice. (Answer, Doc. 12 at 63-66.)

Petitioner does not address the merits of this claim in his Reply.

State Court Decision - The last reasoned decision on this claim was that of the Arizona Court of Appeals on direct appeal. That court reasoned:

Gwen argues he was prejudiced by the State's failure to disclose the original Jeep rental agreement and original payment receipts for the rental. The record does not support this contention. The State sent Gwen copies of the original rental agreement and the payment receipts in the mail and arranged for Gwen's attorney to view the original rental agreement in person.

(Exh. R, Mem. Dec. 3/1/22, at ¶ 14.)

Application of Law to Facts - The Court instructed Petitioner:

Any assertions in the reply that Petitioner's claims addressed on the merits by the state courts meet the standards of 28 U.S.C. § 2254(d) must be supported by: the specific error under U.S. Supreme Court law; and/or the erroneous factual determinations and why the state court determination of those facts was unreasonable in light of the evidence before the state courts.

(Order 12/27/22, Doc. 20 at 1-2.) Petitioner makes no effort to make this showing.

A Brady violation requires a showing that the following three conditions are met: “The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-282 (1999).

Here the state court made the factual finding that no evidence was suppressed, and thus concluded the second requirement (suppression) was not met. Petitioner offers nothing to show that determination was unreasonable in light of the evidence before the state court. At most, Petitioner complains that the original documents were not provided or introduced at trial. (Petition, Doc. 1 at 8.) Brady makes no requirement for production of an original, absent some showing that the original was so different from the copy that the original (as opposed to a copy) was material. As discussed supra regarding Grounds 2(b)/2(c), Petitioner points to no material difference.

Nor does Brady require that the prosecution introduce exculpatory evidence at trial, only that it disclose such evidence to the defendant. “The Brady rule is based on the requirement of due process. Its purpose is not to displace the adversary system as the primary means by which truth is uncovered, but to ensure that a miscarriage of justice does not occur.” United States v. Bagley, 473 U.S. 667, 675 (1985).

Nor does Petitioner proffer anything to suggest why making the originals available for Petitioner to inspect was not sufficient disclosure of this evidence.³³

33 In a reply brief on a motion to compel disclosure of the original contract, Petitioner's counsel “acknowledges he has inspected the original contract although he believes its authenticity is questionable.” (Exh. G, Order 1/7/20 at 2.)

Ground 2(d) and 8(a) are without merit and must be denied.

5. Ground 3 - Speedy Trial

a. Parties Arguments

In Ground 3, Petitioner asserts his right to a speedy trial was violated when the trial court vacated his trial dates in ways not authorized by state law in violation of his Fourteenth Amendment rights, by applying time credits related to COVID-19 under an executive order that did not apply to his trial. (Petition, Doc. 1 at 9-9A.)

Respondents argue that under the deferential review required under 28 U.S.C. § 2254 for the state court's merits decision, Petitioner's claim in Ground 3 is without merit. They argue the state court applied the applicable Supreme Court standard, and Petitioner fails to show a non-distinguishable Supreme Court case reaching a contrary conclusion. Respondents also argue the state court concluded that Petitioner waived his speedy trial rights. (Supp. Ans., Doc. 32.)

Petitioner replies (Doc. 35) relying on the Arizona Rules of Criminal Procedure, and various state court and executive orders and directives regarding the COVID-19 pandemic and state emergency orders.³⁴ He argues the prejudice he suffered was stress and anxiety.

34 Petitioner also asserts counsel was ineffective (Doc. 35 at 6) forcing him to waive his speedy trial rights. The Petition does not assert ineffective assistance as a ground for relief. The Court need not address a claim raised for the first time in a supplemental reply. Zamani, 491 F.3d at 997. To the extent that Petitioner raises this argument solely to explain away his failure to assert his Speedy Trial rights, “the attorney is the [defendant's] agent when acting, or failing to act, in furtherance of the litigation.” Vermont v. Brillon, 556 U.S. 81 90 (2009).

b. Decision of State Court

In addressing Petitioner's speedy trial claims on direct appeal, the Arizona Court of Appeals first addressed Petitioner's claim under Arizona Rule of Criminal Procedure 8, and rejected it for a lack of prejudice and as waived at trial. (Exh. R, Mem. Dec. 3/1/22 at ¶¶ 16, 18.) The court also addressed the related constitutional claims, reasoning:

¶17 In contrast, neither the Arizona Constitution nor the United States Constitution impose a specific time limit, Spreitz, 190 Ariz. at 139 (citations omitted), and courts instead examine “(1) the length of the delay; (2) the reason for the delay; (3) whether the defendant has demanded a speedy trial; and (4) the prejudice to the defendant,” State v. Lukezic, 143 Ariz. 60, 69 (1984) (citing Barker v. Wingo, 407 U.S. 514, 530 (1972)). Of these factors, the length of the delay is the least important, while any prejudice to the defendant is the most important. Spreitz, 190 Ariz. at 139-40 (citation omitted).

¶19 As for Gwen's constitutional right to a speedy trial, approximately three years and eight months passed between Gwen's arraignment and trial. Such a delay prompts analysis of the other Barker factors. See id. at 140 (citing Doggett v. United States, 505 U.S. 647, 652 n.1 (1992) (holding a post-accusation delay approaching one year triggers the Barker analysis)).

¶20 Here, the reason for the delay was primarily due to defense counsels' requests to postpone the trial date to allow newly appointed attorneys time to prepare the case and defendant time to secure a court-appointed expert witness. On one occasion, the trial was continued pursuant to the administrative order to postpone trials during the COVID- 19 pandemic.

¶21 Most importantly, Gwen was not prejudiced by the trial delay. To determine prejudice, courts may assess the defendant's loss of liberty, the anxiety such delay causes the defendant and his family and friends, the disruption of employment and financial resources, curtailment of association, public obloquy, and, most seriously, the possibility that the defense will be impaired by diminishing memories and loss of exculpatory evidence. State v. Soto, 117 Ariz. 345, 348 (1977) (citing United States v. Marion, 404 U.S. 307, 320 (1971)). Gwen argues the delay deprived him of his speedy trial right, but he does not allege any resulting prejudice. While Gwen was incarcerated awaiting trial, he does not contend he suffered anxiety, financial

strain, disruption in employment, or, that the delay limited his ability to mount a defense. Neither does the record show that exculpatory evidence was lost or that witness memories diminished. We conclude, therefore, that Gwen was not deprived of his constitutional right to a speedy trial. See id.

(Exh. R, Mem. Dec. 3/1/22 at ¶¶ 17, 19-21 (emphasis added).)

c. No Waiver Applied

Respondents argue the state court concluded that Petitioner waived his speedy trial rights by failing to raise them. (Supp. Ans., Doc. 32 at 2 (citing Exh. R at ¶ 20).) The Supreme Court has not recognized such a silent waiver. Although an invocation of the speedy trial right is not a prerequisite to reliance on it, “the defendant's assertion of or failure to assert his right to a speedy trial is [only] one of the factors to be considered in an inquiry into the deprivation of the right.” Barker, 407 U.S. at 528.

Here, however, the state court reasoned:

¶18 Here, Gwen first raised his speedy trial rights in his “motion to declare a mistrial” on January 5, 2021, the day trial was set to begin. Even assuming Gwen was deprived of his speedy trial right under Rule 8, he waived this right by failing to assert it promptly before the trial court. See id. at 138.

(Exh. R, Mem. Dec. 3/1/22 at ¶ 18 emphasis added.) Thus, the undersigned finds that this waiver determination was applied only to Petitioner's claim under Ariz. R. Crim. Proc. 8, and was not applied to his constitutional speedy trial rights. Thus, such a waiver was not applied to Petitioner's constitutional Speedy Trial claim.

d. Not Unreasonable Application of or Contrary to Supreme Court Law

Despite being advised of the necessity of doing so (Order 12/6/22, Doc. 13 at 2), Petitioner offers nothing to show that the Arizona court's decision was contrary to or an unreasonable application of Supreme Court law or based on an unreasonable determination of the facts based on the evidence before the state court. The undersigned finds that it was not.

In general, the applicable Supreme Court standard is that set out in Barker.

The approach we accept is a balancing test, in which the conduct of both the prosecution and the defendant are weighed.

A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.

Barker, 407 U.S. at 530. This is generally the standard applied by the Arizona Court of Appeals.

Importance of Prejudice - The undersigned had tentatively concluded that the Arizona Court's assertion of a primacy of prejudice was contrary to Supreme Court law when it concluded that the failure to allege or show prejudice was “[m]ost important[ ].”³⁵(Exh. R, Mem. Dec. 3/1/22 at ¶¶ 17, 19-21 (emphasis added).) (See Order 5/9/23, Doc. 30.)

35 It is true that courts may, at times, refer to a specific factor as “more” or “most” important. See e.g. United States v. Simmons, 536 F.2d 827, 832 (9th Cir. 1976) (“most importantly, the absence of serious prejudice caused by the delay”). But this is often in the context of evaluating the weight of each factor in light of the specific facts of the case. At first blush it might be assumed the Arizona Court of Appeals' “most important” appellation was just that. However, that court explicitly adopted a priority of factors when it opined: “Of these factors, the length of the delay is the least important, while any prejudice to the defendant is the most important. Spreitz, 190 Ariz. at 139-40 (citation omitted).” (Exh. R Mem. Dec. 3/1/22 at ¶ 17.) Indeed Spreitz held exactly that.

Indeed, Barker provided no such hierarchy. To the contrary, Barker provided:

We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.

Barker, 407 U.S. at 533. “Barker v. Wingo expressly rejected the notion that an affirmative demonstration of prejudice was necessary to prove a denial of the constitutional right to a speedy trial.” Moore v. Arizona, 414 U.S. 25, 26 (1973). That changed.

Subsequently, in Doggett v. U.S., the Supreme Court held that as a preliminary matter a defendant must show that “the interval between accusation and trial has crossed the threshold dividing ordinary from “presumptively prejudicial” delay.” 505 U.S. 647, 651-52 (1992) (quoting Barker, 407 U.S. at 530-531). The Court described this prejudice question as “actually a double enquiry,” Doggett, 505 U.S. at 652, first to determine whether the trial was speedy, id., and then subsequently to determine whether the delay was a violation of the Sixth Amendment by applying the Barker, multi-factor, analysis, id. at 654-656. Moreover, the Court clarified that any presumption applied in the first enquiry might or might not be sufficient at the second enquiry based on the other Barker factors (in that case, the reasons for the delay, and the length of the delay).

Further, the Supreme Court has held, subsequent to the Barker and Doggett decisions that a “showing of prejudice is required to establish a violation of the Sixth Amendment Speedy Trial Clause.” Reed v. Farley, 512 U.S. 339, 353 (1994) (emphasis added).

Some lower courts have attempted to reconcile these decisions.

Subsequently, the Court has stated without discussion that a showing of prejudice is required to establish a violation of the Sixth Amendment's Speedy Trial Clause. More thorough ensuing discussions by various courts of appeals have cited language in the Barker and Doggett opinions to the effect that in order to determine whether a defendant's Sixth Amendment right to a speedy trial has been violated, the court must first determine whether the delay was presumptively prejudicial, and that only if this threshold is met need the court engage in the Barker balancing test.

Wright & Miller, Prejudice to accused, 9A Fed. Proc., L.Ed. § 22:1308. At least some of these courts have interpreted Reed's mandate for prejudice to only apply in certain circumstances. See e.g. United States v. Gregory, 322 F.3d 1157, 1163 (9th Cir. 2003) (“when the government has been negligent and the delay does not far exceed the minimum time required to trigger the full Barker inquiry, ‘we must consider the amount of delay in relation to particularized prejudice'”); United States v. Brown, 169 F.3d 344, 350 (6th Cir. 1999) (“When the delay is lengthy and attributable to bad faith by the government, no showing of prejudice is required... However, when the government has used reasonable diligence to pursue a defendant, the defendant must show that the delay caused ‘actual prejudice' to his defense.”), and United States v. Erenas-Luna, 560 F.3d 772, 778-79 (8th Cir. 2009) (”The extent to which a defendant must demonstrate prejudice under this factor depends on the particular circumstances. A showing of actual prejudice is required if the government exercised reasonable diligence in pursuing the defendant... Where the government has been negligent, however, prejudice can be presumed if there has been an excessive delay.”).

But the Supreme Court has never backed from the blanket assertion in Reed that a showing of actual prejudice is “required.” 512 U.S. at 353.

Thus, at worst (for Petitioner), Reed affirms that a showing of prejudice is not only the most important factor, but actually required to prove up a Speedy Trial claim. At best (for Petitioner), Reed muddies the waters, and shows that there is no longer clearly established Supreme Court law on how prejudice is to be evaluated in the Speedy Trial context.

State Law Error re COVID-19 - Petitioner argues that the trial court improperly relied on COVID policies in delaying trial. Assuming, arguendo, that such an error would impact the constitutional speedy trial analysis, this Court cannot find such an error. The same state law arguments were presented to the Arizona court, which rejected them, and concluded “On one occasion, the trial was continued pursuant to the administrative order to postpone trials during the COVID- 19 pandemic.” (Exh. R, Mem. Dec. 3/1/22 at ¶ 20.) A state court determination of state law is not subject to review in a federal habeas court. Bains v. Cambra, 204 F.3d 964, 971 (9th Cir. 2000) ("federal court is bound by the state court's interpretations of state law"). Thus, this Court cannot conclude on its own that the trial court's COVID-19 related extensions were not pursuant to the Arizona courts' administrative order.

Even if this Court could review such matters, Petitioner's claim is without merit.

First, assuming arguendo (in Petitioner's favor) that the state court erred in granting the continuance, violation of a state's speedy trial rules does not establish a violation of the Constitution's Speedy Trial Clause. “[A] statutory right to a speedy trial is separate and distinct from a constitutional speedy trial.” People v. Julian, 2012 Guam 26 (Guam Dec. 26, 2012). See Patton v. Ryan, No. CV-15-00877-PHX-DJH, 2019 WL 1227200, at *4 (D. Ariz. Mar. 15, 2019) (distinguishing between claims under Ariz. R. Crim. Proced. 8 and those under the Sixth Amendment's Speedy Trial Clause).

Second, Petitioner fails to show how the error would alter the Barker analysis. The reason for the delay was ultimately the COVID-19 pandemic. Courts around the country, including this one, were issuing similar orders postponing criminal trials. See e.g. District of Arizona, General Order 20-20 (4/16/20), available at https:// www.azd.uscourts.gov/sites/azd/files/general-orders/20-20.pdf, last accessed 3/8/24) (all scheduled criminal jury trial continued through June 1, 2020). See United States v. Olsen, 21 F.4th 1036, 1041 (9th Cir. 2022) (discussing widespread state and federal orders delaying criminal trials). Assuming arguendo that this type of delay should be attributed to the prosecution, Petitioner fails to show it would weigh heavily enough to require a conclusion that Petitioner was denied a speedy trial. See Barker, 407 U.S. at 531 (“more neutral reason such as negligence or overcrowded courts should be weighted less heavily”). Cf. Sara Hildebrand & Ashley Cordero, The Burden of Time: Government Negligence in Pandemic Planning as A Catalyst for Reinvigorating the Sixth Amendment Speedy Trial Right, 67 Vill. L. Rev. 1, 30 (2022) (arguing as a matter of policy that failure to have adequate emergency plans for “foreseeable” events like a pandemic should be counted against the prosecution as governmental negligence).

Third, Petitioner shows no error under state law. Petitioner argues the governing Administrative Order “did not suspend or cancel trials as erroneously stated by trial court.” (Supp. Reply, Doc. 35 at 4.) Petitioner cites to Administrative Order No. 2020-47, dated March 16, 2020. (Id.) The trial court did not cite to a specific Administrative Order, but merely referenced the Arizona Supreme Court's “directive” and noting that time was excluded for purposes of the state speedy trial rule “pursuant to the recent Administrative Order from the Supreme Court.” (Pet. Supp. Reply, Doc. 35, Exh. A, M.E. 4/24/20.) Petitioner provides Administrative Order 2020-47 (2/16/20) (id. at Exh. B)), Administrative Order 2020-60 (4/6/20) (id. at Exh. C), and Administrative Order 2020-79 (5/20/20) (id. at Exh. D). Petitioner fails to provide the order operative at the time the trial court vacated the trial date on April 24, 2020, Administrative Order 2020-70 (4/24/20), available at https://www.azcourts.gov/Portals/22/admorder/Orders20/2020-70.pdf?ver=2020-04-24-145922-837, last accessed 3/8/24 (attached hereto as Exhibit 1).³⁶ While none of the Administrative Orders explicitly suspended or cancelled all trials, each through 2020-70 did include direction that empaneling of new petit juries be rescheduled. The operative Administrative Order, 2020-70, directed “empaneling of new petit juries scheduled through June 1, 2020 be rescheduled.” (Exh. 1 at 1.) This effectively mandated rescheduling of the associated trials to held with a jury. Ultimately, Administrative Order 2020-79 (5/20/20) delayed the resumption of jury trials to “not prior to June 15, 2020,” and excluded the “period of March 18, 2020 through August 1, 2020” from consideration under Arizona's laws and rules, including Arizona's Rule 8. ((Pet. Supp. Reply, Doc. 35, Exh. D at ¶¶ IV(1), V(i).)

36 Whether treated as the law of the State of Arizona, or as a historical fact judicially noticed as a public record, see Fed.R.Evid. 201; and Louis v, McCormick & Schmick Rest. Corp., 460 F.Supp.2d 1153, 1156 (C.D. Cal. 2006) (detailing cases), this Court may consider the Arizona Supreme Court's Administrative Order.

e. No Unreasonable Determination of the Facts

Likewise, Petitioner offers nothing to show that the Arizona court's decision was based on an unreasonable determination of the facts in light of the evidence before the state court. The undersigned finds that it was not.

Petitioner fails to show that the Arizona court's finding of no allegations of prejudice (and particularly related to stress and anxiety) was an unreasonable determination of the facts, nor that the finding of no prejudice was unreasonable based on the evidence before that court.

Petitioner now apparently³⁷ argues that he was prejudiced by stress and anxiety. (Supp. Reply, Doc. 35 at 8.) But Petitioner proffers no evidence of such stress or anxiety. Moreover, Petitioner offers nothing to show that he presented evidence (or even facts or arguments) of such stress and anxiety to the Arizona Court of Appeals. The undersigned finds none in Petitioner's brief to that court. (See e.g. Exh. Q, Supp. Br. at 13-18.) Petitioner also offers nothing to show that the lack of evidence was not the result of his failure to develop the state court record. Nor does he offer anything to show that any such evidence of prejudice from delay will show a lack of evidence to convict, 28 U.S.C. § 2254(e)(2)(B). Consequently, regardless of the legal soundness (or lack thereof) of the state court's decision, this Court is limited to the evidence before the state court. See 28 U.S.C. § 2254(e)(2). That evidence showed no prejudice.

37 Petitioner does not explicitly assert he suffered anxiety and stress. Rather he simply asserts he was prejudiced, and then cites an Arizona case as holding that “anxiety and stress can be factors in determining whether Defendant was prejudiced by trial delay.” (Supp. Reply, Doc. 35 at 8.) The undersigned liberally construes this as an assertion Petitioner suffered anxiety and stress.

f. Conclusion re Ground 3

Ground 3 is without merit and should be denied.

6. Ground 5 - Preliminary Hearing

In Ground 5, Petitioner argues his due process rights were violated when he was not provided a preliminary hearing. (Petition, Doc. 1 at 14 (“11(A)”).) The undersigned concludes hereinabove that this claim attacks only the validity of Petitioner's pretrial proceedings, and thus is not cognizable on habeas review.

Even if cognizable, however, this claim is plainly without merit. As discussed hereinabove, Petitioner has no federal right to a preliminary hearing. Of course, however, his claim is not that he had a federal right to such a proceeding, but that he had a state right, and its denial amounted to a violation of due process.

However, as found by the Arizona Court of Appeals, Petitioner is simply mistaken about his state law right to a preliminary hearing. The Arizona Court of Appeals ruled:

In addition, because the State chose to indict Gwen by grand jury, no preliminary hearing was required. See State v. Bojorquez, 111 Ariz. 549, 553 (1975) (holding that either method of establishing probable cause, indictment by grand jury or preliminary hearing, is constitutionally proper); Segura v. Cunanan, 219 Ariz. 228, 234, ¶ 22 (App. 2008) (noting the prosecution may obtain an indictment from a grand jury as an alternative to a preliminary hearing).

(Exh. R, Mem. Dec. 3/1/22 at ¶ 11.) This "federal court is bound by the state court's interpretations of state law.” Bains v. Cambra, 204 F.3d 964, 971 (9th Cir. 2000).

Even if Petitioner could show that the decision was erroneous, not every violation of state law amounts to a denial of due process. An error of state law must be “sufficiently egregious to amount to a denial of equal protection or of due process of law guaranteed by the Fourteenth Amendment.” Pully v. Harris, 465 U.S. 37, 41 (1984). Petitioner must show that the state court "error" was "so arbitrary and fundamentally unfair that it violated federal due process." Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991) (quoting Reiger v. Christensen, 789 F.2d 1425, 1430 (9th Cir.1986)). Petitioner offers nothing to show why the state court's decision rose to this level of error.

Accordingly, Petitioner cannot show a denial of due process from the denial of a preliminary hearing.

7. Ground 7 - Confrontation

In Ground 7 Petitioner argues that he was denied his Sixth Amendment confrontation right because the State did not call every witness in its disclosure statements at trial. (Petition, Doc. 1 at 11(D)-11(E).)

Respondents argue that the silence of the state court on this claim should be construed as a decision on the merits. Respondents argue that Petitioner has not and cannot provide Supreme Court law finding a confrontation right to require the state to call every listed witness, or that any unreasonable determination of the facts underlay the silent decision. (Answer, Doc. 12 at 66-68.)³⁸

38 Respondents also address with Ground 7 Petitioner's related due process claim in Ground 8(b)(ii). However, the undersigned has concluded hereinabove that Ground 8(b)(ii) was procedurally defaulted.

Petitioner does not reply.

The Decision Made - Richter, 562 U.S. 86, made two significant determinations regarding state court opinions that fail to provide a reasoned rejection of a claim fairly presented. First: “Where a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden [under 28 U.S.C. § 2254(d)] still must be met by showing there was no reasonable basis for the state court to deny relief.” 562 U.S. at 98. Second: “When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Id. at 99.

But, Richter was not the Supreme Court's last word on habeas review of silent state court decisions. In Wilson v. Sellers, 136 S.Ct. 1188 (2018), the Court concluded that the reviewed court's silence was not carte blanche to the habeas court to invent reasonable bases for the state court to have rejected the claim:

We hold that the federal court should “look through” the unexplained decision to the last related state-court decision that does provide a relevant rationale. It should then presume that the unexplained decision adopted the same reasoning. But the State may rebut the presumption by showing that the unexplained affirmance relied or most likely did rely on different grounds than the lower state court's decision, such as alternative grounds for affirmance that were briefed or argued to the state supreme court or obvious in the record it reviewed.

136 S.Ct. at 1192.

Here, Respondents have not addressed whether: (1) the trial court had rejected a challenge by Petitioner on confrontation grounds;³⁹ (2) whether the presumption that the trial court's reasoning was adopted by the Arizona Court of Appeals can be overcome; and (3) if not whether the trial court's reasoning survives scrutiny under 28 U.S.C. § 2254(d).

39 See e.g. Exh. DD, R.T. 1/7/21 at 108 (“it's your responsibility through your advisory counsel that someone needs to make a phone call to get them here. The Court is not going to do it.”).

Even so, if this court were to review this claim de novo, it would find this claim without merit. “The Confrontation Clause provides two types of protections for a criminal defendant: the right physically to face those who testify against him, and the right to conduct cross-examination.” Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987). Petitioner's claim does not indicate either of those protections were denied. Nor could he, because his complaint is that the witnesses did not testify at all, triggering neither the right to physically confront them in testifying, nor to cross-examine, there having been no direct examination.

While this Court might ordinarily liberally construe Petitioner's claim to be based not upon the Confrontation Clause of the Sixth Amendment, but upon the Compulsory Process Clause of the Sixth Amendment, such a claim was not fairly presented to the Arizona Court of Appeals. Rather, Petitioner plainly argued this claim as one under the Confrontation Clause. (See Exh. Q, Supp. Brief at 48-49 (repeatedly referencing “confrontation” right).) Thus, any Compulsory Process Clause claim is procedurally defaulted.

Even if this Court could find a Compulsory Process claim properly exhausted, it is without merit. “[T]he Compulsory Process Clause guarantees a criminal defendant the right to present relevant and material witnesses in his defense ....” Alcala v. Woodford, 334 F.3d 862, 879 (9th Cir. 2003); see Chambers v. Mississippi, 410 U.S. 284, 302 (1973); Washington v. Texas, 388 U.S. 14, 17-19 (1967). The Supreme Court has contrasted the confrontation and compulsory process protections:

While the Confrontation Clause guarantees a defendant the right to be confronted with the witnesses “against him,” the Compulsory Process Clause guarantees a defendant the right to call witnesses “in his favor.” U.S. Const., Amdt. 6. The text of the Amendment contemplates two classes of witnesses-those against the defendant and those in his favor. The prosecution must produce the former; the defendant may call the latter.

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 313-14 (2009).⁴⁰

40 In Melendez-Diaz, the Court when on to apply these principles to witnesses (expert drug analysts) who did not appear for trial but were nonetheless allowed to “testify” via affidavit. In such an instance, denying confrontation by use of the extra-judicial affidavits was not saved by relying on the defendant's right to have subpoenaed them. “But that power-whether pursuant to state law or the Compulsory Process Clause-is no substitute for the right of confrontation. Unlike the Confrontation Clause, those provisions are of no use to the defendant when the witness is unavailable or simply refuses to appear.” 557 U.S. at 324. Here, Petitioner does not suggest that the non-appearing witnesses were somehow allowed to testify at his trial.

Here, Petitioner makes no argument that he was precluded from calling any witnesses, only that the state failed to call them. Nor does he offer anything to show that they would have been witnesses in his favor. Nor did he place any such proof before the Arizona Court of Appeals, only summarily arguing the witnesses' “testimony would have cast favorable evidence.” (Exh. Q, Supp. Br. at 49 (emphasis added).)

Finally, given the conclusory nature of Petitioner's allegations, any error must be deemed harmless.

Ground 7 must be denied as without merit.

8. Ground 8(b)(iii) - Suspension of Habeas

In Ground 8(b)(iii) Petitioner argues his due process rights were violated when the state court denied his state habeas petition in violation of his rights under the Arizona and Federal Suspension Clauses.

The former is without merit because Petitioner fails to show that the state suspension clause was violated, let alone that the violation was sufficiently egregious to amount to a denial of federal due process. The state's suspension clause provides: “The privilege of the writ of habeas corpus shall not be suspended by the authorities of the state.” Ariz. Rev. Stat., Const. Art. 2 § 14. Petitioner offers nothing to show he was precluded from filing a state petition for writ of habeas corpus. At most, he complains that it was denied. A denial of a habeas petition does not amount to a suspension of the writ.

Petitioner argument under the federal Suspension Clause, U.S. Const. Art. 1 § 9 is wholly without merit because that clause “is not restrictive of state, but only of national, action.” Gasquet v. Lapeyre, 242 U.S. 367, 369 (1917).

9. Summary re Merits

Petitioner's claims in Grounds 1(d)/9(c), 2(b)/2(c), 2(d)/8(a), 3, 5, 7, and 8(b)(iii) are without merit and must be denied.

E. SUMMARY

Based upon the foregoing, the undersigned concludes that the following disposition of Petitioner's claims is appropriate.

Petition fails to state cognizable habeas claims in Grounds 1(a), 1(b)/1(c)/1(f), 5, 8(c), 8(d), 8(e), 9(b), because they are based on insufficient processes in his special action, appellate, or PCR proceedings. Accordingly, such claims must be dismissed.

Petitioner's Ground 4 must be dismissed as failing to meet the “in custody” requirement.

Petitioner fails to adequately state claims for relief in: (a) Grounds 1, 1(e), 8(b)(i), 8(b)(v), 8(c)(i), 9(a), 9(b), 10(a) and 10(b); and (b) to the extent based on duplicity, rather than multiplicity, the claims in Ground 1(d) and 9(c). These claims must be dismissed.

Petitioner procedurally defaulted his state remedies on his malicious prosecution claim in Ground 1, and the claims in Grounds 1(a), 1(b)/1(c)/1(f), 1(e), 2(a), 6(a), 6(b), 6(c), 8(b)(i), 8(b)(ii), 8(b)(iv), 8(b)(v), 8(c)(i), 9(a), 9(b), 10(a) and 10(b). These claims must be dismissed.

Grounds 1(d)/9(c), 2(b)/2(c), 2(d)/8(a), 3, 5, 7, and 8(b)(iii) are without merit and must be denied.

Evaluating these on a per claim basis:

- Ground 1 (malicious prosecution) must be dismissed with prejudice because it fails to adequately state a claim;

- Ground 1(a) (bad faith) must be dismissed with prejudice because it asserts a non-cognizable claim, and is procedurally defaulted;

- Ground 1(b) (defective indictment) (along with Grounds 1(c) and 1(f)) must be dismissed with prejudice because it asserts a non-cognizable claim and is procedurally defaulted;

- Ground 1(c) (probable cause) (along with Grounds 1(b) and 1(f)) must be dismissed with prejudice because it asserts a non-cognizable claim and is procedurally defaulted;

- Ground 1(d) (with Ground 9(c)) (double jeopardy) must, to the extent it asserts a claim of duplicity (rather than multiplicity) be dismissed for failure to adequately state a claim, and both as to duplicity and multiplicity denied

as without merit;

- Ground 1(e) (inadequate factual notice) must be dismissed: (1) for failure to adequately state a claim; and (2) as procedurally defaulted;

- Ground 1(f) (insufficient evidence), discerned by Respondents as an insufficient evidence at trial claim, is not raised in the Petition, and thus need not be addressed, and the claim of insufficient evidence at the grand jury (along with Grounds 1(b) and 1(c)) must be dismissed with prejudice because it asserts a non-cognizable claim and is procedurally defaulted;

- Ground 2(a) (evidentiary procedures) must be dismissed as procedurally defaulted;

- Ground 2(b)/2(c) (admission of copies) must be denied as without merit;

- Ground 2(d) (with Ground 8(a)) (Brady) must be denied as without merit;

- Ground 3 (speedy trial) must be denied as without merit;

- Ground 4 (bail) must be dismissed with prejudice because it fails to meet the “in custody” requirement;

- Ground 5 (preliminary hearing) must be dismissed with prejudice because it asserts a non-cognizable claim, or alternatively denied as without merit;

- Ground 6(a) (other act evidence) must be dismissed with prejudice as procedurally defaulted;

- Ground 6(b) (reasonable doubt) must be dismissed with prejudice as procedurally defaulted;

- Ground 6(c) (instructional error) must be dismissed with prejudice as procedurally defaulted;

- Ground 7 (confrontation) must be denied as without merit;

- Ground 8(a) (with Ground 2(d)) (Brady) must be denied as without merit;

- Ground 8(b)(i) (evidentiary procedures) must be dismissed with prejudice because it fails to adequately state a claim;

- Ground 8(b)(ii) (pretrial motions) must be dismissed with prejudice as

procedurally defaulted;

- Ground 8(b)(iii) (suspension of habeas) must be denied as without merit;

- Ground 8(b)(iv) (change of judge) must be dismissed with prejudice because it fails to adequately state a claim and as procedurally defaulted;

- Ground 8(b)(v) (U.S. mail) must be dismissed with prejudice because it fails to adequately state a claim, and as procedurally defaulted;

- Ground 8(c)(i) (special action) must be dismissed with prejudice because it asserts a non-cognizable claim, for failure to adequately state a claim, and as procedurally defaulted;

- Ground 8(c)(ii) (failure to adjudicate) must be dismissed with prejudice because it asserts a non-cognizable claim;

- Ground 8(c)(iii) (denial of review) must be dismissed with prejudice because it asserts a non-cognizable claim;

- Ground 8(d) (failure to consider actual innocence) must be dismissed with prejudice because it asserts a non-cognizable claim;

- Ground 8(e) (insufficient appeal procedures) must be dismissed with prejudice because it asserts a non-cognizable claim;

- Ground 9(a) (failure to decide sentencing issues0 must be dismissed with prejudice because it fails to adequately state a claim and as procedurally defaulted;

- Ground 9(b) (PCR error) must be dismissed with prejudice because it asserts a non-cognizable claim, for failure to adequately state a claim, and as procedurally defaulted;

- Ground 9(c) (with Ground 1(d)) (Double Jeopardy) must, to the extent it asserts a claim of duplicity (rather than multiplicity) be dismissed for failure to adequately state a claim, and both as to duplicity and multiplicity denied as without merit;

- Ground 10(a) (Petitioner's expert) must be dismissed with prejudice because

it fails to adequately state a claim and as procedurally defaulted;

- Ground 10(b) (expert testimony) must be dismissed with prejudice because it fails to adequately state a claim and as procedurally defaulted.

V. CERTIFICATE OF APPEALABILITY

The standard for issuing a certificate of appealability (“COA”) is whether the applicant has “made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. “If the court issues a certificate, the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” 28 U.S.C. § 2253(c)(3). See also Rules Governing § 2254 Cases, Rule 11(a).

Assuming the recommendations herein are followed in the district court's judgment, that decision will be in part on procedural grounds, and in part on the merits. Under the reasoning set forth herein, jurists of reason would not find it debatable whether the district court was correct in its procedural ruling, and jurists of reason would not find the district court's assessment of the merits of the constitutional claims debatable or wrong.

Accordingly, to the extent that the Court adopts this Report & Recommendation as to the Petition, a certificate of appealability should be denied.

VI. RECOMMENDATION

IT IS THEREFORE RECOMMENDED:

(A) Grounds 1(d)/9(c), 2(b)/2(c), 2(d)/8(a), 3, 5, 7, and 8(b)(iii) of Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) be DENIED.

(B) The remainder of Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) be DISMISSED WITH PREJUDICE.

(C) To the extent the foregoing findings and recommendations are adopted in the District Court's order, a Certificate of Appealability be DENIED.

VII. EFFECT OF RECOMMENDATION

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.

However, 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. See also Rule 8(b), Rules Governing Section 2254 Proceedings. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9^th Cir. 2003)(en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).

In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”

(Attachment: Exh. 1, Ariz. Admin. Order 2020-70 (4/24/20)

In the Matter of: AUTHORIZING LIMITATION OF COURT OPERATIONS DURING A PUBLIC HEALTH EMERGENCY

Administrative Order

No. 2020 - 70

(Replacing Administrative Order No. 2020 - 60)

Due to concern for the spread of COVID-19 in the general population, the Governor of the State of Arizona declared a statewide emergency pursuant to A.R.S. § 26-303 and in accordance with A.R.S. § 26-301(15). On March 18, 2020, Administrative Order No. 2020-48 directed Arizona's courts to conduct business in a manner that reduces the risk associated with this public health emergency. This order revises, clarifies, and adds to that direction.

Arizona Courts remain open to serve the public. Nevertheless, given the current emergency, and in the interest of public safety, certain limitations and changes in court practices are necessary. It is anticipated that Arizona courts will be able to begin a phased-in approach to conducting in person hearings and jury trials in late Spring or early Summer. An order providing for that transition will be issued soon. Until that time, it is necessary to extend the duration of the provisions of Administrative Order No. 2020-60.

Therefore, pursuant to Article VI, Sections 3 and 5, of the Arizona Constitution, IT IS ORDERED that all in-person proceedings in all Arizona appellate, superior, justice and municipal courts and before the presiding disciplinary judge be avoided to the greatest extent possible consistent with core constitutional rights until further order of this court.

IT IS FURTHER ORDERED that empaneling of new petit juries scheduled through June 1, 2020 be rescheduled.

IT IS FURTHER ORDERED that the presiding superior court judge of each county shall determine how any in-person court proceedings are to be conducted in each of the county's court rooms, under conditions that protect the health and safety of all participants including:

(a) Limiting in-person contact as much as possible by using available technologies, including alternative means of filing, teleconferencing, video conferencing, and use of email and text messages and issuing orders to reasonably ensure the health and safety of all participants.

(b) Following CDC social distancing recommendations, considering the size of the court facility. Courts shall not schedule multiple, simultaneous hearings in a number that prevents appropriate social distancing, considering the size of the courtroom, and in no event shall a court schedule more than 10 persons at one time. Requiring all scheduled participants to notify the court of any COVID-19 symptoms or suspected exposure and

to refrain from coming to the courthouse. The intent of this order is to discourage the use of large group scheduling of court hearings. However, in extraordinary circumstances, and with appropriate precautions, the presiding judge may authorize groups larger than 10 but in no event larger than 25.

(c) Limiting any required in-person proceedings to attorneys, parties, victims, witnesses, jurors, court personnel, and other necessary persons, where necessary to maintain the recommended social distancing within a court facility, and authorizing trial judges to make reasonable orders to ensure the health and safety of hearing participants consistent with the parties' right to due process of law.

(d) Liberally granting continuances and additional accommodations to parties, witnesses, attorneys, jurors and others with business before the courts who are at a high risk of illness from COVID-19.

IT IS FURTHER ORDERED that the presiding superior court judge continue to meet with local criminal justice system stakeholders to coordinate how best to handle criminal proceedings, including grand jury proceedings, for the duration of this health emergency.

IT IS FURTHER ORDERED that, until further order, the presiding superior court judge of each county is authorized to adopt or suspend any local rules and orders needed to address the current public health emergency in cooperation with public health officials and to take any reasonable action that the circumstances require to enable necessary operations of the superior, justice and municipal courts in each county.

IT IS FURTHER ORDERED that any court rule that impedes a judge's or court clerk's ability to use available technologies to eliminate or limit in-person contact in the conduct of court business is suspended through June 1, 2020, except such suspension is subject to constitutional requirements. Judges may hold ex parte hearings on orders of protection telephonically.

IT IS FURTHER ORDERED that if it becomes necessary to close court offices to the public during the period of suspension, these offices shall remain accessible to the public by telephone and email during their regular business hours to the greatest extent possible, including using drop boxes for documents that cannot be e-filed.

IT IS FURTHER ORDERED that for the period March 18, 2020 through June 1, 2020 if a judge is unable to rule on a pending matter due to illness or is otherwise unable to work, the judge is deemed to be physically disabled and therefore that period is excluded from the calculation of the 60 days from the date of submission in which a matter must be determined under ARS § 12128.01 or § 11-424.02.

IT IS FURTHER ORDERED that the period March 18, 2020 through June 1, 2020:

(a) Is excluded from calculation of time under rule provisions and statutory procedures that require court proceedings to be held within a specific period of time, including Rule 8, Rules of Criminal Procedure; Rules 17, 79 and 100, Rules of Procedure for the Juvenile Court; Rules 2 and 3, Rules of Procedure in Eviction Actions and Rule 38.1(d)(2), Rules of Civil Procedure. A judge, pursuant to Rule 8, may extend this exclusion of time in criminal cases, for good cause.

(b) Is not excluded from calculation of time for:

The following proceedings for persons held in-custody: initial appearances, arraignments, preliminary hearings, in-custody probation violation, and conditions of release;

Domestic violence protective proceedings;

Child protection temporary custody proceedings;

Civil commitment hearings and reviews;

Emergency protection of elderly or vulnerable persons proceedings;

Habeas corpus proceedings;

COVID-19 public health emergency proceedings;

Juvenile detention hearings;

Election cases; and

Any other proceeding that is necessary to determine whether to grant emergency relief.

IT IS FURTHER ORDERED that the clerks of the court shall continue to issue marriage licenses and may do so remotely if the available technology allows licenses to be properly issued. A judge may perform a marriage ceremony at the courthouse with no more than 10 persons present with proper social distancing.

IT IS FURTHER ORDERED that the time for conducting Preliminary Hearings for incustody defendants under Rule 5.1(a) and (d) and Probation Revocation Arraignments under Rule 27.8 (a)(1) of the Arizona Rules of Criminal Procedure is extended to twenty (20) days from an initial appearance that occurs through June 1, 2020.

IT IS FURTHER ORDERED that electronic, digital or other means regularly used in court proceedings may be used to create a verbatim record, except in grand jury proceedings, notwithstanding a party's request that the proceedings be recorded by a certified court reporter.

IT IS FURTHER ORDERED that, until June 1, 2020, notwithstanding Rule 6 (b)(2), Rules Civil Procedure that in an individual case the court may extend the time to act under Rules 50(b), 52(b), 59(b)(1), (c), and (d), and 60(c) as those rules allow, or alternatively, may extend the time to act under those rules for 30 days upon a showing of good cause.

IT IS FURTHER ORDERED that the presiding superior court judge notify court customers, the public, and the Administrative Director of all administrative orders issued under the authorization provided by this order using the most effective means available.

Dated this 24th day of April, 2020.

ROBERT BRUTINEL, Chief Justice