Opinion
No. CV-20-8177-PCT-SPL (DMF)
01-05-2021
Jonathan McKinley Hegge, Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
TO THE HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT JUDGE:
On July 8, 2020, Petitioner Jonathan McKinley Hegge ("Petitioner"), who is confined in the Arizona State Prison Complex in San Luis, Arizona, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition") (Doc. 1) and an Application to Proceed In Forma Pauperis (Doc. 7). In an August 25, 2020 Order, the Court granted the Application to Proceed In Forma Pauperis and ordered Respondents to answer the Petition (Doc. 8). Respondents filed a Limited Answer on October 29, 2020 (Doc. 13). The time for Petitioner to reply has passed without Petitioner filing a reply. This matter is ripe.
The Petition was docketed by the Clerk of Court on July 20, 2020 (Doc. 1). The Petition contains a certificate of service indicating that Petitioner placed the Petition in the prison mailing system on July 8, 2020 (Doc. 1 at 12). Pursuant to the prison mailbox rule, the undersigned has used July 8, 2020, as the filing date. Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) ("A petition is considered to be filed on the date a prisoner hands the petition to prison officials for mailing.").
Citation to the record indicates documents as displayed in the official Court electronic document filing system maintained by the District of Arizona under Case No. CV-20-8177-PCT-SPL (DMF).
This matter is on referral to the undersigned United States Magistrate Judge for further proceedings and a report and recommendation pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure (Doc. 8 at 4). For the reasons set forth below, it is recommended that the Court dismiss the Petition (Doc. 1) with prejudice as procedurally defaulted without excuse and deny a certificate of appealability.
I. PERTINENT BACKGROUND AND PROCEDURAL HISTORY
A. The Indictments, Guilty Pleas, and Sentences
In case number CR-2017-01801, a Mohave County Grand Jury charged Petitioner with one count of felony theft, one count of felony fraudulent schemes and artifices, and one count of felony perjury (Doc. 13-1 at 3-6). Later, in case number CR-2018-01890, a Mohave County Grand Jury charged Petitioner with three more felonies: two counts of aggravated assault and one count of tampering with physical evidence (Id. at 8-9). A codefendant was charged in CR-2017-01801 with several offenses, and a different individual was charged as a codefendant for the aggravated assault felonies in CR-2018-01890 (Id. at 3-6, 8-9). Attorneys at the Rideout Law Group represented Petitioner in CR-2017-01801, and attorneys at The Zickerman Law Office represented Petitioner in CR-2018-01890 (Doc. 1 at 7-8; Doc. 13-1 at 44, 72).
Petitioner and the state reached a plea agreement that resolved CR-2017-01801 and CR-2018-01890 (Id. at 11-15). The plea agreement provided that Petitioner would plead guilty to one count of theft, a class-two felony, in CR-2017-01801, and one count of aggravated assault, a non-dangerous, class-three felony, in CR-2018-01890 (Id. at 11). The plea agreement also provided that Petitioner would receive "guaranteed probation" if he "paid at least $2,000.00" before the sentencing hearing and did not fail to appear for the sentencing hearing (Id. at 12). Yet, if Petitioner failed to appear or failed to pay at least two thousand dollars before sentencing, the court could place Petitioner on supervised probation or sentence Petitioner to prison, at the court's discretion (Id.). If the court sentenced Petitioner to prison, Petitioner could serve "up to five (5) years" in CR-2017-01801, and "up to three and one-half (3.5) years" in CR-2018-01890, "to run concurrently or consecutively at [the court]'s discretion" (Id.). Also, the plea agreement provided that Petitioner "shall be released on his own recognizance on both CR-2017-01801 and CR-2018-01890 after entering [the] plea", the state would dismiss the remaining counts charged, and the state would not allege any sentence enhancements (Id.).
Petitioner, defense counsel Melissa Berry from the Rideout Law Group representing Petitioner in CR-2017-01801, and the prosecutor each signed the plea agreement (Id. at 14-15). At the start of the February 13, 2019, change of plea hearing, the superior court recounted that on February 6, 2019, Petitioner had requested that a change of plea hearing be set as soon as possible and the court had "agreed that Mr. Zickerman didn't have to be [at the hearing] so long as there was somebody present representing the defendant in [CR-2018-01890] in case [Petitioner] had any questions that he wanted to be able to ask in confidence" (Id. at 45). At the change of plea hearing, attorney Emily Weiss from the Zickerman Law Office appeared on behalf of defense counsel Zickerman for CR-2018-01890 and defense counsel Melissa Berry from the Rideout Law Group appeared for CR-2017-01801 (Id. at 43-69). Attorney Berry avowed to the court that she had reviewed the entire plea agreement relating to both cases with Petitioner (Id. at 46). Further, attorney Berry told the court that Petitioner wanted to proceed with the plea agreement that day and without delaying the matter for Mr. Zickerman's time conflicting Yavapai County jury trial to conclude (Id. at 46). The change of plea hearing then proceeded with attorneys Berry and Weiss appearing with and for Petitioner (Id. at 46-47).
During the February 13, 2019, change of plea hearing, Petitioner avowed that: he wanted to move forward with the plea agreement; he was satisfied with the assistance of his attorneys; he had read the plea agreement; he understood the plea agreement; the plea agreement contained everything to which he and the state had agreed; he agreed with all of the plea agreement's terms; he understood his rights and would waive them through the plea agreement; and no one threatened, used force, or promised him anything beyond the promises in the plea agreement to entice him to plead guilty (Id. at 47, 49-62). After the plea colloquy, Petitioner did not have any questions for the court, his attorneys, or the prosecutor, and Petitioner pleaded guilty to theft in CR-2017-01801 and aggravated assault in CR-2018-01890 (Id. at 62-65). The superior court accepted Petitioner's guilty pleas, set a sentencing hearing for Friday, March 15, 2019, to which Petitioner did not object, and released Petitioner on his own recognizance in accordance with the plea agreement (Id. at 65-68).
Petitioner did not appear for the March 15, 2019, hearing, and he did not timely pay the $2000 towards restitution (Id. at 75, 81). Sentencing proceeded on April 26, 2019, with Petitioner and his attorneys Rideout and Weiss present (Id. at 71-92). Consistent with the plea agreement, the court sentenced Petitioner to two consecutive terms in prison, four years for theft (to run first) and 2.5 years for aggravated assault, in addition to ordering restitution, fees, and community supervision (Id. at 78-89).
The day of sentencing, April 26, 2019, Petitioner received and signed a Notice of Rights of Review After Conviction and Right to Apply to Set Aside Conviction (Id. at 26-27, 89-91). Among other things, the notice informed that Petitioner did "not have a right to direct appeal if [he] ... pled guilty" and that he could seek relief only by petition for post-conviction relief ("PCR petition") (Id. at 26). Further, the notice warned that Petitioner would have to file a notice of post-conviction relief ("PCR notice") "within 90 days of the entry of judgment and sentence" (Id. at 27).
B. Post-Conviction Relief ("PCR") Proceedings
On June 14, 2019, Petitioner signed a PCR notice, which was timely filed with the superior court on June 25, 2019 (Doc. 13-1 at 29-31). In the PCR notice, Petitioner acknowledged that he understood that he must include in his PCR petition "every ground for relief which is known and which has not been raised and decided previously" (Id. at 31). Petitioner further acknowledged that he understood that failure to raise any known ground for relief in his PCR petition would prohibit him from raising it at any future date (Id.). On April 6, 2020, Petitioner's PCR counsel filed a notice of completion avowing that she was unable to find any colorable claims for submission to the court and would not be filing a PCR petition on [Petitioner]'s behalf (Id. at 33-36). In the notice of completion, Petitioner's counsel explained that she had "reviewed the entire case record herein, along with transcripts of the Change of Plea and Sentencing" and had written and spoken to Petitioner by telephone (Id. at 34). Counsel further requested that the court grant Petitioner a thirty day extension of time for Petitioner to file a pro per PCR petition (Id.). On April 9, 2020, the superior court granted Petitioner forty-five days to file a pro per PCR petition and advised Petitioner that failure to timely file the pro per PCR petition "may be grounds for dismissal" (Id. at 38-39). Because Petitioner did not file a pro per PCR petition and the time to do so had passed, on June 4, 2020, the superior court dismissed the PCR proceedings (Id. at 41).
In his Petition that initiated these habeas proceedings, Petitioner admits that he did not file a petition for review in the Arizona Court of Appeals or otherwise raise the Petition's habeas claims at the Arizona Court of Appeals (Doc. 1 at 3, 6, 7, 8, 11).
C. These Habeas Proceedings
The Petition (Doc. 1) contains two grounds with sub-claims for relief. In Ground One, Petitioner asserts that his counsel in CR-2018-01890 ineffectively assisted him by:
a. "absconding from supplying any legal aid in" Petitioner's defense;(Doc. 1 at 7). Petitioner also avers that his counsel in CR-2017-01801 informed him that he could not fire his counsel in CR-2018-01890 (Id.). In Ground Two, Petitioner asserts that his counsel in CR-2017-01801 ineffectively assisted him by:
b. not "argu[ing] to drop assault and get tampering with evidence";
c. refusing to be a part of Petitioner's defense;
d. failing to appear "for any court date or phone calls from the Judge";
e. not signing Petitioner's plea agreement;
f. failing to interview Petitioner's six witnesses; and
g. causing Petitioner to be "forced into this plea" based on counsel's ineffective assistance.
a. "only arguing for one count of the two counts [Petitioner] was charged with[,]" stating that "she could not help with [the second] charge [and] that [Petitioner's counsel in CR-2018-01890] was supposed to represent" Petitioner on that charge; and(Id. at 8). Petitioner asks that this Court grant him either a reduced sentence, a "new plea", concurrent sentences, or minimum sentences, and the standard habeas petition form used by Petitioner also includes a request for "any other relief to which Petitioner may be entitled" (Id. at 11).
b. failing to "send someone to interview witnesses" even though counsel told Petitioner that she would do so.
Respondents assert that all of Petitioner's claims are procedurally defaulted without excuse and that Petitioner's claim in Ground 2(b) is waived because Petitioner pleaded guilty (Doc. 13). Respondents do not assert that the Petition was untimely filed (Id.).
Petitioner did not file a reply in support of his Petition.
II. PETITIONER'S CLAIMS ARE PROCEDURALLY DEFAULTED WITHOUT EXCUSE
A. Applicable Law: Exhaustion and Procedural Default
A state prisoner must properly exhaust all state court remedies before this Court may grant an application for a writ of habeas corpus. 28 U.S.C. § 2254(b)(1), (c); Duncan v. Henry, 513 U.S. 364, 365 (1995); Coleman v. Thompson, 501 U.S. 722, 731 (1991). Arizona prisoners properly exhaust state remedies by fairly presenting claims to the Arizona Court of Appeals in a procedurally appropriate manner. O'Sullivan v. Boerckel, 526 U.S. 838, 843-45 (1999); Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999). To be fairly presented, a claim must include a statement of the operative facts and the specific federal legal theory. Baldwin v. Reese, 541 U.S. 27, 32-33 (2004); Gray v. Netherland, 518 U.S. 152, 162-63 (1996); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) ("The mere similarity between a claim of state and federal error is insufficient to establish exhaustion."). To properly exhaust state remedies, a petitioner must fairly present his claims to the state's highest court in a procedurally appropriate manner. See O'Sullivan v. Boerckel, 526 U.S. 838, 839-46 (1999).
In Arizona, a petitioner must fairly present his claims to the Arizona Court of Appeals by properly pursuing them through the state's direct appeal process or through appropriate post-conviction relief. See Swoopes v. Sublett, 196 F.3d at 1010; Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994); Castillo v. McFadden, 399 F.3d 993, 998 & n.3 (9th Cir. 2005). Fair presentment of claims to the Arizona Court of Appeals requires a description of "both the operative facts and the federal legal theory on which his claim is based so that the state courts [could] have a 'fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim." Castillo v. McFadden, 399 F.3d at 999 (quoting Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003)).
It is not fair presentment, for example, 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) (internal citation omitted). It is also not enough to rely on 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. 153, 163 (1996); see also Castillo v. McFadden, 399 F.3d at 1002-03 (finding habeas petitioner did not give the state appellate court a fair opportunity to rule on a federal due process claim because "[e]xhaustion demands more than drive-by citation, detached from any articulation of an underlying federal legal theory," and the petitioner's claim in state court was a "conclusory, scattershot citation of federal constitutional provisions, divorced from any articulated federal legal theory").
Fair presentation is not achieved by raising the claim for "the first and only time in a procedural context in which its merits will not be considered," unless there are special circumstances. Castille v. Peoples, 489 U.S. 346, 351 (1989). As example, raising a claim for the first time in a discretionary petition for review to the Arizona Supreme Court or in a special action petition is not sufficient to achieve fair presentation. See Casey v. Moore, 386 F.3d 896, 918 (9th Cir. 2004) ("Because we conclude that Casey raised his federal constitutional claims for the first and only time to the state's highest court on discretionary review, he did not fairly present them.") (footnote omitted).
A corollary to the exhaustion requirement is the "procedural default doctrine." The procedural default doctrine limits a petitioner from proceeding in federal court where his claim is procedurally barred in state court and "has its roots in the general principle that federal courts will not disturb state court judgments based on adequate and independent state law procedural grounds." Dretke v. Haley, 541 U.S. 386, 392 (2004). There are two types of procedural bars, "express and implied." Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). An express procedural bar exists if the state court denies or dismisses a claim based on a procedural bar '"that is both 'independent' of the merits of the federal claim and an 'adequate' basis for the court's decision." Harris v. Reed, 489 U.S. 255, 260 (1989); Stewart v. Smith, 536 U.S. 856, 860 (2002) (Arizona's "Rule 32.2(a)(3) determinations are independent of federal law because they do not depend upon a federal constitutional ruling on the merits"); Johnson v. Mississippi, 486 U.S. 578, 587 (1988) ("adequate" grounds exist when a state strictly or regularly follows its procedural rule).
In Arizona, claims not previously and properly presented to the state courts are generally barred from federal review because an attempt to return to state court to present them is futile unless the claims fit in a narrow category of claims for which a successive petition is permitted. See former rules Ariz. R. Crim. P. 32.2(a) (precluding claims not raised on appeal or in prior petitions for post-conviction relief), 32.4(a) (time bar), 32.1(d)-(h), 32.9(c) (petition for review must be filed within thirty days of trial court's decision); see also current rules Ariz. R. Crim. P. 33.4(b)(3) (time bar); Ariz. R. Crim. P. 33.1(b) through (h) and 33.2(b) (permitting successive PCR proceedings to raise only the following: superior court lacked subject-matter jurisdiction to render judgment or impose sentence; sentence, as imposed, not authorized by law or plea agreement; being held in custody beyond sentence expiration; newly-discovered material facts probably would have changed the judgment; untimely PCR notice not defendant's fault; significant change in the law retroactively applicable that would probably overturn conviction or sentence; and actual innocence); 33.16(a)(1) (petition for review must be filed within thirty days of trial court's decision).
Effective January 1, 2020, former Arizona Rules of Criminal Procedure ("Rules") 32 and 33 were abrogated, and new Rules 32 and 33 were adopted. See Arizona Supreme Court Order No. R-19-0012. As a general matter, the substance of former Rule 32 was divided among the two new rules based on whether a defendant was convicted at trial (new Rule 32) or had pled guilty or no contest (new Rule 33). See id.; Pet. to Amend (Jan. 10, 2019), at 4-5. New Rule 33 thus encompasses the rules applicable to a pleading defendant's right to seek post-conviction relief. See Ariz. R. Crim. P.17.1(e), 33.1; see also Pet. to Amend, at 4. New Rule 32 and new Rule 33 apply to "all actions filed on or after January 1, 2020," and to "all other actions pending on January 1, 2020, except to the extent that the court in an affected action determines that applying the rule or amendment would be infeasible or work an injustice, in which event the former rule or procedure applies." Arizona Supreme Court Order No. R-19-0012.
Arizona courts have consistently applied Arizona's procedural rules to bar further review of claims that were not properly raised on direct appeal or in prior Rule 32 post-conviction proceedings. See, e.g., Stewart, 536 U.S. at 860 (determinations made under Arizona's procedural default rule are "independent" of federal law); Smith v. Stewart, 241 F.3d 1191, 1195 n.2 (9th Cir. 2000) ("We have held that Arizona's procedural default rule is regularly followed [or "adequate"] in several cases.") (citations omitted), reversed on other grounds, Stewart v. Smith, 536 U.S. 856 (2002); State v. Mata, 916 P.2d 1035, 1050-52, 185 Ariz. 319, 334-36 (Ariz. 1996) (waiver and preclusion rules strictly applied in post-conviction proceedings). A petitioner who fails to follow a state's procedural requirements for presenting a valid claim deprives the state court of an opportunity to address the claim in much the same manner as a petitioner who fails to exhaust his state remedies.
If a state court expressly applied a procedural bar when a petitioner attempted to raise the claim in state court and that state procedural bar is both "independent" and "adequate," then review of the merits of the claim by a federal habeas court is barred. See Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) ("When a state-law default prevents the state court from reaching the merits of a federal claim, that claim can ordinarily not be reviewed in federal court.") (citing Wainwright v. Sykes, 433 U.S. 72, 87-88 (1977) and Murray v. Carrier, 477 U.S. 478, 485-492 (1986)). Moreover, if a state court applies a procedural bar, but goes on to alternatively address the merits of the federal claim, the claim is still barred from federal review. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law.... In this way, a state court may reach a federal question without sacrificing its interests in finality, federalism, and comity.") (citations omitted); Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003) ("A state court's application of a procedural rule is not undermined where, as here, the state court simultaneously rejects the merits of the claim.") (citing Harris, 489 U.S. at 264 n. 10).
B. Application of Exhaustion and Procedural Default to Record
None of Petitioner's habeas claims were timely or procedurally appropriately raised in the superior court, and none of Petitioner's habeas claims were raised in the Arizona Court of Appeals. It is too late to return to the Arizona courts to try to raise such claims. See Ariz. R. Crim. P. 33.4(b)(3); Ariz. R. Crim. P. 33.1(b) through (h) and 33.2(b); Ariz. R. Crim. P. 33.16(a)(1). Therefore, all Petitioner's claims are unexhausted and subject to an express procedural bar. In other words, all Petitioner's habeas claims are procedurally defaulted.
C. Excuse for Procedural Default
This Court may review a procedurally defaulted claim if the petitioner can demonstrate either: (1) cause for the default and actual prejudice to excuse the default, or (2) a miscarriage of justice/actual innocence. 28 U.S.C. § 2254(c)(2)(B); Schlup v. Delo, 513 U.S. 298, 321 (1995); Coleman, 501 U.S. at 750; Murray v. Carrier, 477 U.S. 478, 495-96 (1986).
"Cause" is something that "cannot be fairly attributable" to a petitioner, and a petitioner must show that this "objective factor external to the defense impeded [his] efforts to comply with the State's procedural rule." Coleman, 501 U.S. at 753 (citation and internal quotation marks omitted). To establish prejudice a "habeas petitioner must show 'not merely that the errors at ... trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'" Murray, 477 U.S. at 494 (quoting United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original)). "Such a showing of pervasive actual prejudice can hardly be thought to constitute anything other than a showing that the prisoner was denied 'fundamental fairness' at trial." Id. While both "cause" and "prejudice" must be shown to excuse a procedural default, 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).
The miscarriage of justice exception to procedural default "is limited to those extraordinary cases where the petitioner asserts his [actual] innocence and establishes that the court cannot have confidence in the contrary finding of guilt." Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir. 2008) (emphasis in original). To pass through the actual innocence/Schlup gateway, a petitioner must establish his or her factual innocence of the crime and not mere legal insufficiency. See Bousley v. U.S., 523 U.S. 614, 623 (1998); Jaramillo v. Stewart, 340 F.3d 877, 882-83 (9th Cir. 2003). A petitioner "must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." McQuiggin v. Perkins, 569 U.S. 383, 399 (2013) (quoting Schlup, 513 U.S. at 327). "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence." Schlup, 513 U.S. at 324. See also Lee v. Lampert, 653 F.3d 929, 945 (9th Cir. 2011); McQuiggin, 569 U.S. at 399 (explaining the significance of an "[u]nexplained delay in presenting new evidence"). Because of "the rarity of such evidence, in virtually every case, the allegation of actual innocence has been summarily rejected." Shumway v. Payne, 223 F.3d 982, 990 (9th Cir. 2000) (citing Calderon v. Thompson, 523 U.S. 538, 559 (1998)).
In his Petition, Petitioner asserts regarding his failure to raise Ground One in the Arizona Court of Appeals: "I filed the notice to file Rule 32 but did not meet the deadline due to multiple moves from prisons" (Doc. 1 at 6). Respondents argue that this bare assertion does not:
suffice to excuse his failure to file [his PCR petition]. He does not assert that he did not receive the notice or deadline to file a PCR Petition. (Dkt. 1, at 7-8.) He does not state his number of transfers or when or where each of them had occurred. (Id.) Nor does he state how any transfer hindered him from filing it or a request to extend the deadline. (Id.) What is more, he does not express that any of these prisons had denied him or had lacked resources that would have thwarted him from filing either document. (Id.) He does not even allege that he had written a PCR Petition but that it became lost in the prison mailing system based on any transfer. (Id.)(Doc. 13 at 15-16). Respondents are correct. Further, while it also appears that prejudice has not and cannot be shown on this record, this Court need not reach prejudice because Petitioner has failed to established cause.
Petitioner makes no assertion or argument that can be construed as an actual innocence argument as to CR-2017-01801. Regarding CR-2018-01890, Petitioner asserts in Ground Two that the "video footage as well as the witnesses and Judge know that I had nothing to do with assault, only tampering with evidence" (Doc. 1 at 8). The video footage is not new evidence. Rather, the video was mentioned, as was its review by a law enforcement officer on the day of the assault, in Petitioner's presentence report (Doc. 13-1 at 21). Further, the factual basis for the Petitioner's guilty plea to the assault charge was stated as follows at Petitioner's change of plea hearing:
[A] co-defendant was the principal actor. [Petitioner] was the accomplice. Both the [Petitioner], the co-defendant, and the victim were all inmates at the Mohave County Adult Correctional Facility.(Id. at 64-65).
The co-defendant went into the victim's cell with a broom. Hit him causing various injuries. Lacerations that required staples. Including a laceration to his spleen, which had to be surgically removed.
[Petitioner] acted as the accomplice by acting as the lookout or blocking the door to the cell but did not have any active role in the assault.
Under Arizona law, a person "is criminally accountable for the conduct of another" if the person acts as an "accomplice" to the offense. Ariz. Rev. Stat. § 13-303(A)(3). An "accomplice" is a person "who with the intent to promote or facilitate the commission of an offense: (1) Solicits or commands another person to commit the offense; or (2) Aids, counsels, agrees to aid or attempts to aid another person in planning or committing an offense. (3) Provides means or opportunity to another person to commit the offense." Ariz. Rev. Stat. § 13-301. An accomplice is also liable for "any offense that is a natural and probable or reasonably foreseeable consequence of the offense for which the person was an accomplice." Ariz. Rev. Stat. § 13-303(A)(3). Given Petitioner's accomplice liability under Arizona law for the assault, Petitioner cannot claim actual innocence for the assault to try to excuse the procedural default.
In sum, Petitioner has not shown cause for his procedural default because Petitioner has not shown that there was an external force that prevented Petitioner from exhausting his claims by timely bringing his claims through state appropriate process and to the Arizona Court of Appeals. Nor has Petitioner met the requirements for a showing of miscarriage of justice/actual innocence to excuse the procedural default. Accordingly, all grounds in the Petition are procedurally defaulted without excuse, and, on that basis, the Petition should be dismissed with prejudice.
III. CONCLUSION
All of the grounds in the Petition are unexhausted and procedurally defaulted without excuse. Thus, the Petition should be dismissed with prejudice. Because undersigned finds that all of the Petition grounds are unexhausted and procedurally defaulted without excuse and that the Petition should be dismissed with prejudice on that basis, undersigned has not addressed Respondents' argument that Petitioner's guilty plea waived the claim in Ground 2(b) of the Petition.
Accordingly, the undersigned recommends that the Petition (Doc. 1) be dismissed with prejudice. Assuming the recommendations herein are followed in the District Judge's judgment, the District Judge's decision will be on procedural grounds. Under the reasoning set forth herein, reasonable jurists would not find it debatable whether the District Judge was correct in its procedural ruling. Therefore, to the extent the District Judge adopts this Report and Recommendation regarding the Petition, a certificate of appealability should be denied. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
IT IS THEREFORE RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be dismissed with prejudice.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability be denied because dismissal of the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) is justified by a plain procedural bar and reasonable jurists would not find the procedural ruling debatable.
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. The parties shall have fourteen days within which to file responses to any objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determination of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed. R. Civ. P. 72.
Dated this 5th day of January, 2021.
/s/_________
Honorable Deborah M. Fine
United States Magistrate Judge