Opinion
CV-22-8209-PCT-SPL (ASB)
11-07-2023
Tim D. McDonald, Petitioner, v. Ryan Thornell, et al., Respondents.
REPORT AND RECOMMENDATION
Honorable Alison S. Bachus United States Magistrate Judge
TO THE HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT JUDGE: Petitioner Tim D. McDonald (“Petitioner”), who is confined in the Arizona State Prison Complex-Globe, has filed a pro se Amended Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2254. (Doc. 7.) For the reasons that follow, the Court recommends that the Petition be denied and dismissed.
Citation to the record indicates documents as they are displayed in the District of Arizona's official Court electronic document filing system under Case No. CV-22-8209-PCT-SPL (ASB).
PROCEDURAL HISTORY
I. State Proceedings A. Facts
The Arizona Court of Appeals found the following facts and procedural history as true:
The Arizona Court of Appeals' recitation of the facts is presumed correct. See 28 U.S.C. § 2254(d)(2), (e)(1); Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012) (rejecting argument that statement of facts in state appellate court s opinion should not be afforded the presumption of correctness).
McDonald was charged with one count of fraudulent schemes and artifices and twenty-two counts of theft. On the state's motion, the superior court dismissed without prejudice six counts of theft on the first day of trial. The jury found McDonald guilty of one count of theft, a class 3 felony, and not guilty of a second count of theft. The jury was unable to reach a verdict on the remaining counts, so the court declared a mistrial as to those counts. The state did not prove any aggravating factors to the jury.
To avoid a retrial, McDonald pled guilty to attempt to commit fraudulent schemes and artifices, a class 3 felony, and the state agreed to dismiss the remaining charges. The plea agreement stated that though sentencing would be left to the court's discretion, any prison sentence would be concurrent to the sentence imposed for the theft conviction and would not exceed 4.5 years. After reviewing the plea agreement with McDonald, the court found that his plea was knowingly, intelligently, and voluntarily made and that there was a factual basis to support it.
On July 16, 2020, the court sentenced McDonald to concurrent prison terms of 3.5 years for the theft conviction and 4.5 years for the fraudulent schemes conviction. McDonald's trial attorney filed a motion to withdraw the next day, which the court granted on July 21.
On July 24, McDonald filed a timely notice of post-conviction relief, alleging that his attorney coerced him into accepting the plea. Then, on March 9, 2021, McDonald filed a second notice, alleging that his failure to file a timely notice of appeal was not his fault.
After holding an evidentiary hearing where McDonald and his trial attorney testified, the court denied post-conviction relief and dismissed the proceedings. McDonald then filed [a] petition for review.(Doc. 34-1 at 203-04.)
B. Direct Appeal
Petitioner did not file a direct appeal but later argued on his petition for post-conviction relief that his failure to file a timely notice of appeal was his trial attorney's fault. (Doc. 34-1, Exh. W.)
C. Post-Conviction Relief Proceedings
1. Rule 33 Petition
On July 20, 2020, Petitioner filed a timely Notice of Post-Conviction Relief under Rule 33 of the Arizona Rules of Criminal Procedure. (Doc. 34-1, Exh. N.) On December 21, 2020, Petitioner, through counsel, filed a Petition for Post-Conviction Relief (“PCR”). (Doc. 34-1, Exh. R.) On the petition, Petitioner raised one ineffective assistance of counsel claim, arguing counsel failed to adequately communicate the material terms of the plea agreement and induced and coerced Petitioner to enter into the plea agreement based upon erroneous advice. (Doc. 34-1, Exh. R, at 6.) Specifically, Petitioner argued counsel advised that the only possible way for him to receive probation as to (trial) Count 4 would be for Petitioner to plead guilty to (amended) Count 1, which was inaccurate advice because Petitioner was a first-time felony offender and probation eligible. (Id. at 12.)
2. Rule 32 Petition
On March 9, 2021, Petitioner filed a Notice of Post-Conviction Relief under Rule 32 of the Arizona Rules of Criminal Procedure. (Doc. 34-1, Exh. W.) Petitioner argued that his failure to file a timely notice of appeal was through no fault of his own, rather was the fault of trial counsel. (Doc. 34-1, Exh. W, at 7.)
3. Evidentiary Hearing and Ruling
On October 25, 2021, an evidentiary hearing was held before the sentencing judge as to Petitioner's PCR petitions. (Doc. 34-1, Exh. Y.) At the hearing, Petitioner and his trial counsel both testified. (Doc. 34-1, Exh. Y, at 1.) The court ruled, as to the Rule 33 petition, Petitioner had not met his burden of proof regarding the ineffective assistance of counsel claim. (Id. at 2.) As to Petitioner's Rule 32 petition, the court found Petitioner had not met his burden of proof by a preponderance of the evidence regarding his appellate rights. (Id.) Accordingly, the superior court denied Petitioner's PCR petitions and dismissed the proceedings. (Id.)
4. Petition for Review and Reconsideration
On February 3, 2022, Petitioner filed a petition for review in the Arizona Court of Appeals. (Doc. 34-1, Exh. CC.) In a decision dated September 20, 2022, the appeals court granted review but denied relief, finding: (1) the superior court reasonably concluded Petitioner was not coerced into accepting the plea agreement, (2) the superior court did not err in denying relief of Petitioner's appeal claim, and (3) Petitioner waived the arguments that there was prosecutorial misconduct and that the superior court erred by not appointing Petitioner new counsel after permitting trial counsel to withdraw, as Petitioner did not first raise the arguments before the superior court. (Doc. 34-1, Exh. FF, at 3-4.) Petitioner filed a motion for reconsideration (Doc. 34-1, Exh. GG) that was subsequently denied on November 23, 2022 (Doc. 34-1, Exh. HH). Following the denial, Petitioner filed a petition for review in the Arizona Supreme Court. (Doc. 34-1, Exh. JJ.) The Mandate issued December 28, 2022 (Doc. 34-1, Exh. LL), and the Arizona Supreme Court denied the petition for review on January 31, 2023 (Doc. 34-1, Exh. KK).
II. Federal Proceedings
A. Petitioner's Habeas Petition
On December 12, 2022, Petitioner filed the instant Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 7.) In his Petition, Petitioner raises two ineffective assistance of counsel claims and three due process claims. (Id.) Specifically, Petitioner asserts:
GROUND ONE: Counsel provided ineffective assistance by failing to adequately communicate the material terms of the plea agreement, thereby inducing and coercing Petitioner to enter into the plea agreement based upon erroneous advice.
GROUND TWO: Counsel provided ineffective assistance by withdrawing as counsel less than twenty-four hours after sentencing with no notice to Petitioner, violating Rule 6.3(b) of the Arizona Rules of Criminal Procedure, and by failing to
file a notice of appeal on Petitioner's behalf.
GROUND THREE: The trial court ignored Arizona Rules of Criminal Procedure by allowing trial counsel to withdraw less than twenty-four hours after sentencing and by not appointing Petitioner new counsel when requested.
GROUND FOUR: The trial court improperly kept Petitioner quarantined in county jail for twenty-eight days, thus keeping him from phone and legal library access, as well as prohibiting him from filing a timely notice of appeal.
GROUND FIVE: The trial court, prosecutor, and Petitioner's trial counsel made threats of life in prison, thus rendering the plea agreement involuntary.(Doc. 7.)
On May 5, 2023, Petitioner filed a supplemental memorandum in which he asserts that he has no legal resources while incarcerated, “evidence has been withheld,” and that “the judge and [district attorney] were biased as they did not explain their relationship with the LLC.” (Doc. 26.) Respondents filed a Limited Response, in which they argue Grounds Two through Five are procedurally defaulted and Ground One fails on the merits. (Doc. 34.) In his Reply, Petitioner restates his habeas grounds and asks the Court to “unconditionally vacate all sentences,” or in the alternative, allow for additional discovery or an evidentiary hearing. (Doc. 35.)
DISCUSSION
I. Applicable Law
The writ of habeas corpus affords relief to persons in custody pursuant to the judgment of a state court in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2241(c)(3), 2254(a). Petitions for Habeas Corpus are governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). 28 U.S.C. § 2244.
A. Standard of Review
1. Exhaustion
To seek federal habeas review, a state prisoner must also exhaust the available state remedies. 28 U.S.C. § 2254(b)(1)(A). To exhaust state remedies, a petitioner must afford the state courts the opportunity to rule upon the merits of his federal claims by “fairly presenting” them “in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing Duncan v. Henry, 513 U.S. 364, 365 (1995) and O 'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). In other words, proper exhaustion requires a petitioner to “give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” Date v. Schriro, 619 F.Supp.2d 736, 762 (D. Ariz. 2008) (quoting O 'Sullivan, 526 U.S. at 845).
Under controlling case law, fair presentment of a claim requires the Court to engage in a two-prong analysis. First, the Court must consider whether the petitioner invoked “one complete round” of the state's established review process for any claim raised on federal habeas review. O'Sullivan, 526 U.S. at 845. The Court then must determine whether the petitioner pled the federal nature of the claim with “considerable specificity” before the state courts. Rose v. Palmateer, 395 F.3d 1108, 1111 (9th Cir. 2005); see also Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005) (holding “[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”) (internal citations omitted).
a. Proper Forum
“To exhaust state remedies, a petitioner must afford the state courts the opportunity to rule upon the merits of his federal claims by ‘fairly presenting' them to the state's ‘highest' court in a procedurally appropriate manner.” Date, 619 F.Supp.2d at 762 (quoting Castille v. Peoples, 489 U.S. 346, 349 (1989) and Baldwin, 541 U.S. at 29). In non-capital cases arising in Arizona, the “highest court” requirement is satisfied by fair presentation to the Arizona Court of Appeals. Date, 619 F.Supp.2d at 762 (discussing Crowell v. Knowles, 483 F.Supp.2d 925 (D. Ariz. 2007) and Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999)). The Ninth Circuit in Swoopes held “Arizona has declared that its ‘complete round' [of appellate review] does not include discretionary review before the Arizona Supreme Court.” 196 F.3d at 1010 (clarifying the holding in O 'Sullivan requiring a petitioner to invoke “one complete round” of a state's established appellate review process). Thus, claims of Arizona state prisoners “are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.” Id.
b. Specificity of Federal Basis
In addition to presenting his claims to the proper court, a state prisoner must fairly present his claims to the state court by describing both the operative facts and the federal legal theory on which his claims are based. See Date, 619 F.Supp.2d at 764; Baldwin v. Reese, 541 U.S. 27, 33 (2004); Duncan, 513 U.S. at 365-66 (holding petitioners must fairly present federal claims to state courts in order to give the State the “opportunity to pass upon and correct” alleged violations of federal rights, which requires petitioners to alert the state courts that they are asserting claims under the federal Constitution) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)).
A claim is not fairly presented to the state court if that court “must read beyond a petition or a brief.. .that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so.” Baldwin, 541 U.S. at 32. Full and fair presentation requires a petitioner to “present the substance of his claim to the state courts, including reference to a federal constitutional guarantee and a statement of facts that entitle the petitioner to relief.” Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009); see also Picard, 404 U.S. at 278 (holding fair presentation of a claim in state courts requires petitioners to present the state courts with the “substantial equivalent” of the claim raised in federal court).
In the Ninth Circuit, petitioners “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. While the petitioner must refer to federal law in state court explicitly, exhaustion is satisfied once the petitioner makes that explicit reference even if the petitioner relies predominantly on state law before the state courts.” Insyxiengmay, 403 F.3d at 668.
2. Procedural Default
A federal habeas claim is not exhausted if the petitioner still has the right to raise the claim “by any available procedure” in the state courts. 28 U.S.C. § 2254(c). “A habeas petitioner's claims may be precluded from federal review in either of two ways.” Date, 619 F.Supp.2d at 765. A claim may be procedurally defaulted in federal court if: (1) “it was actually raised in state court but found by that court to be defaulted on state procedural grounds,” or (2) “a state prisoner failed to present his federal claims to the state court, but returning to state court would be ‘futile' because the state courts' procedural rules, such as waiver or preclusion, would bar consideration of the previously unraised claims.” Id. (internal citations omitted). “Technical” exhaustion, and thus procedural default of the claim, occurs when a claim was not actually exhausted in state court, but the petitioner no longer has an available state remedy. Id. at 766. Federal courts are barred from reviewing claims that were decided on independent and adequate state law grounds. See Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). “This rule applies whether the state law ground is substantive or procedural.” Id. at 729.
If a petitioner failed to exhaust his claim and is now procedurally barred from returning to state court to present it, then his claim is procedurally defaulted and barred from federal habeas corpus review. See Coleman, 501 U.S. at 735 n.1. A petitioner can overcome procedural default, and thus bar of his claim, only by showing cause for the default and resulting prejudice or that a fundamental miscarriage of justice will result from the denial. Id. at 750. To establish cause, the petitioner must “show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). “An objective factor outside of a petitioner's control (e.g., ineffective assistance of counsel or a basis for the claim that was previously unavailable) could constitute cause.” Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011). If a petitioner succeeds in showing cause, he can meet the prejudice prong if he demonstrates “that the errors ... worked to his actual and substantial disadvantage, infecting his entire [proceeding] with errors of constitutional dimension.” Id. (internal quotations and citations omitted). Alternatively, to show a “fundamental miscarriage of justice,” a petitioner must demonstrate that “in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him.” Bousley v. United States, 523 U.S. 614, 623 (1998) (internal quotations and citations omitted). Under this standard, “actual innocence” means “factual innocence, not mere legal insufficiency.” Id.
II. Analysis
A. Ground One
1. Petitioner's Claim
In Ground One of the Amended Petition, Petitioner claims ineffective assistance of “trial, appellate, and post-conviction” counsel. (Doc. 7 at 7.) But Petitioner's supporting facts only address actions of trial counsel. Specifically, Petitioner argues trial counsel failed to “adequately communicate the material term[s] of the plea agreement.. .by inducing and coercing” Petitioner to enter the agreement based upon erroneous advice. (Doc. 7 at 7.) The record shows Petitioner was assisted by counsel in the superior court at the post-conviction stage, but the instant Petition contains no specific fact or allegation to support an ineffective assistance claim by that counsel. (Doc. 34-1, Exh. R.) The record is further devoid of any appellate counsel who assisted Petitioner, and Petitioner fails to identify any such counsel, cite any facts, or make any arguments about the performance of any such individual. Due to Petitioner's failure to sufficiently develop any argument regarding appellate or post-conviction counsel's assistance, any request for relief on the basis of appellate or post-conviction counsel fails. Thus, the Court construes Ground One to be an ineffective assistance of trial counsel claim and addresses it accordingly.
Petitioner raised an ineffective assistance of trial counsel claim in both the PCR court and Arizona Court of Appeals but failed to raise any claim of ineffective assistance of appellate or post-conviction counsel. At the evidentiary hearing, the PCR court found Petitioner's trial counsel to be more credible and ruled that counsel did not misadvise Petitioner regarding the terms of the plea agreement and that Petitioner knowingly, intelligently, and voluntarily entered into the plea agreement. (Doc. 34-1, Exh. OO, at 110-16.) On review, the appeals court upheld that ruling. (Doc. 34-1, Exh. FF, at 3.) To the extent Petitioner is arguing trial counsel was ineffective during the plea process, that claim has been properly exhausted in the state courts and the Court will accordingly address it on the merits.
2. Applicable Law (Ineffective Assistance of Counsel)
Ineffective assistance of counsel claims are generally analyzed pursuant to Strickland v. Washington, 466 U.S. 668 (1984). To prevail on such a claim, a habeas petitioner must show: (1) his counsel's performance was deficient, meaning “counsel's representation fell below an objective standard of reasonableness,” and (2) that the deficient performance prejudiced the petitioner's defense. Strickland, 466 U.S. at 687-88. “The [petitioner] bears the burden of overcoming the strong presumption that counsel performed adequately..,[a]s with deficiency, Strickland places the burden of proving prejudice on the [petitioner], not the government.” Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010).
With regard to the prejudice prong of the Strickland test, a petitioner “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. As defined by the Supreme Court, a reasonable probability is “a probability sufficient to undermine confidence in the outcome.” Id. “The likelihood of a different result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011). This is a heavy burden for a petitioner to overcome. See Strickland, 466 U.S. at 689 (holding “a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.'”).
The Strickland test also “applies to challenges to guilty pleas based on ineffective assistance of counsel.” Hill v. Lockhart, 474 U.S. 52, 58 (1985). In the context of guilty pleas, the prejudice requirement “focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process.” Id. at 59. “In other words, in order to satisfy the ‘prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Id.
In federal habeas corpus review, the federal court “must apply a ‘doubly deferential' judicial review to a state court's application of the Strickland standard under AEDPA.” Cheney, 614 F.3d at 995. It is Petitioner's burden to show “the state court applied Strickland to the facts of his case in an objectively unreasonable manner.” Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam). This Court has discretion to review the two prongs of the Strickland test in any order and need not address both prongs if Petitioner makes an insufficient showing in one. See Strickland, 466 U.S. at 697.
The Court applies the AEDPA's standard of review to the last reasoned state-court decision. Noguera v. Davis, 5 F.4th 1020, 1034 (9th Cir. 2021). Accordingly, this Court reviews the appeal court's decision as the last reasoned state court decision to address Petitioner's ineffective assistance of counsel claim.
3. Application of Law
The decisions of the Arizona state courts were not objectively unreasonable. The court of appeals applied state law to determine whether plea counsel's conduct amounted to ineffective assistance during plea negotiations. The appeals court reviewed the record and concluded:
At the evidentiary hearing, McDonald's trial attorney testified that he discussed the pros and cons of accepting the plea agreement with McDonald and advised him that his best chance at probation was to accept responsibility and enter the plea. The superior court found the attorney to be credible. The court further found that based on its own recollection of McDonald's answers and demeanor during the change of plea colloquy, McDonald understood the parameters of the plea, which included a possible prison sentence of up to 4.5 years. The record shows the court questioned the defendant in accordance with Boykin v. Alabama, 395 U.S. 238 (1969), and
McDonald's responses to those questions indicate that he entered the plea knowingly and voluntarily. The superior court reasonably concluded that McDonald was not coerced into accepting the plea agreement.(Doc. 34-1, Exh. FF, at 3) (internal citation omitted). This Court concurs with that conclusion.
At the change of plea hearing, the trial court adequately informed Petitioner of the consequences of his guilty plea. (Doc. 34-1, Exh. H.) Petitioner confirmed that he understood (1) the terms of the plea agreement, (2) the elements and factual basis of the charge to which he was pleading guilty, and (3) the rights he was giving up by pleading guilty under the terms of the plea agreement. (Id.); see also United States v. Ross, 511 F.3d 1233, 1236-37 (9th Cir. 2008) (a defendant's contemporaneous statements regarding his understanding of the plea agreement carry substantial weight in determining if his entry of a guilty plea was knowing and voluntary); United States v. Kaczynski, 239 F.3d 1108, 1115 (9th Cir. 2001) (giving “substantial weight” to defendant's in-court statements).
After raising this claim on PCR, an evidentiary hearing was held where both Petitioner and his trial counsel testified. (Doc. 34-1, Exh. OO.) Counsel testified he had numerous conversations with Petitioner about the terms of the plea agreement. (Doc. 34-1, Exh. OO, at 353.) Specifically, he testified, “I remember discussing with [Petitioner] I felt his best chance at getting probation was to accept responsibility under the plea and throw himself at the mercy of the [c]ourt.” (Id. at 355-56.) Counsel testified, “[a]t no time did I ever tell [Petitioner] he was guaranteed to get probation after the one jury verdict on the first trial, and at no time did I ever tell him he was guaranteed to get probation under [the] plea agreement.” (Id. at 374.) Counsel further testified he went through the plea agreement with Petitioner “line by line” and asked Petitioner after every paragraph whether he understood the terms. (Id. at 387.) Counsel testified Petitioner's questions concerned things like “what do you think the judge will do” and “what is the best option for me,” rather than questions clarifying the terms of the plea agreement. (Id. at 354.)
Petitioner next testified at the hearing. Petitioner admitted, “[trial counsel] advised me that my best possibility to get probation was ... agreeing to the additional charge[.]” (Doc. 34-1 at 413.) Further, Petitioner testified that “[trial counsel] never said the word guarantee” and acknowledged the sentencing judge warned of probation or prison time. (Id. at 412, 425-26.) At the conclusion of the evidentiary hearing, the judge stated, “[Petitioner] himself said that [trial counsel] did not guarantee him he was going to be placed on probation. [Petitioner] testified that that was his expectation, that's what he thought was going to happen . there is nothing [trial counsel] testified to or that I find that he in any way, shape, or form misled or coerced [Petitioner] into taking [the] plea agreement.” (Id. at 454.) The PCR court ultimately found that Petitioner had not met his burden of proof as to the ineffective assistance of counsel claim. (Id. at 455.)
The record shows counsel adequately informed Petitioner of the terms of the plea agreement and did not guarantee probation if Petitioner pleaded guilty. (See Doc. 34-1 at 353, 355-56, 374, 387.) The record further establishes Petitioner acknowledged that counsel did not guarantee probation under the plea agreement and that the judge explained the terms of the plea agreement during the plea colloquy. (Doc. 34-1, Exh. H.) That explanation included the possibility of being placed on probation as well as receiving a prison sentence for the count to which Petitioner was pleading guilty. (See Doc. 34-1 at 425-26 (at the evidentiary hearing, the State asked Petitioner if he recalled the judge explaining the terms of the plea agreement to him; Petitioner responded “yes, I do.” The State further questioned, “[a]nd that you could be placed on probation or you could receive prison for the Count 1 that you were taking a plea on?” Petitioner again responded “yes.”).) Additionally, Petitioner affirmed during the change-of-plea hearing that his plea was knowing and voluntary. (Doc. 34-1, Exh. H.) On this record, Petitioner is unable to show counsel's purported deficient performance. See Hill, 474 U.S. at 59.
Moreover, even if counsel's performance were deficient, Petitioner was not prejudiced by counsel's prediction because the plea agreement (Doc. 34-1, Exh. G) and the change of plea hearing (Doc. 34-1, Exh. H) adequately informed Petitioner of the potential consequences of his guilty plea. See Doganiere v. United States, 914 F.2d 165, 168 (9th Cir. 1990) (holding that the petitioner “suffered no prejudice from his attorney's prediction because, prior to accepting his guilty plea, the court explained that the discretion as to what the sentence would be remained entirely with the court.”); Womack v. Del Papa, 497 F.3d 998, 1003 (9th Cir. 2007) (“a mere inaccurate prediction, standing alone, would not constitute ineffective assistance” (internal quotation omitted)); United States v. Garcia, 909 F.2d 1346, 1348 (9th Cir. 1990) (finding that an erroneous sentence prediction “does not entitle a defendant to challenge his guilty plea”). Because Petitioner was clearly informed of the potential for a prison sentence, he cannot demonstrate that he was prejudiced by his attorney's prediction.
The Court concludes Petitioner has failed to show that the state courts' rejection of Ground One is contrary to or an unreasonable application of federal law or is based on an unreasonable determination of the facts. The Court recommends that the claim be denied.
B. Ground Two
1. Petitioner's Claim
In Ground Two, Petitioner contends counsel provided ineffective assistance by withdrawing as counsel less than twenty-four hours after sentencing with no notice to Petitioner, violating Rule 6.3(b) of the Arizona Rules of Criminal Procedure, and by failing to file a notice of appeal on Petitioner's behalf. (Doc. 7 at 7.) On his Rule 32 petition, Petitioner argued his failure to file a timely notice of appeal was the fault of his attorney. (Doc. 34-1, Exh. W.) Petitioner asserted his trial counsel violated Rule 6.3(b) by failing to file a notice of appeal on Petitioner's behalf and asked the court to grant him the ability to file a delayed notice of appeal. (Id.)
After hearing argument on the issue at the evidentiary hearing, the PCR court held: “I do not find the defense has established that the defense failure to file a timely notice of appeal was without the defendant's fault. I don't find it was [trial counsel's] fault. And the defendant was properly advised, both verbally and in writing, as to what his rights [were]. And, again, he can ask for a lawyer that will be appointed if he didn't have a lawyer at that time ... the defense has not established factually by preponderance of the evidence the issues raised under Rule 32.” (Doc. 34-1 at 457.) After presenting the issue on his petition for review, the Arizona Court of Appeals upheld the PCR court's decision. (Doc. 34-1, Exh. FF, at 3-4.) That court stated, “[t]he superior court found that though it would have been ‘better practice' for counsel to file a notice of appeal before withdrawing, [Petitioner] was on notice that counsel would be off the case after sentencing. No evidence showed that [Petitioner] told counsel to initiate an appeal before withdrawing, and [Petitioner] does not allege that he mistakenly believed counsel had filed a notice of appeal. Mere regret that one did not appeal does not establish a cognizable claim under Rule 32.1(f). We detect no error in the superior court's denial of relief.” (Id. at 4) (internal citation omitted).
2. Application of Law
Petitioner's Ground Two claim is procedurally defaulted in the instant proceeding. Petitioner was required to allege the same claim in the Arizona courts as he raises here. See Insyxiengmay, 403 F.3d at 668. As discussed, supra, Petitioner raised a similar claim in his Rule 32 proceedings but failed to specify the federal basis of the claim or raise the issue as an ineffective assistance of counsel claim. Specifically, on Petitioner's Notice of Post-Conviction Relief, he answered “no” when asked if he was raising a claim of ineffective assistance of counsel. (Doc. 34-1, Exh. W, at 2.) Further, Petitioner's entire Rule 32 argument was based in Arizona law. (See id. at 3-7 (citing Arizona cases State v. Ainsworth, 35 Arizona Cases Digest 8, WL 2021 58320 (filed 01/07/2021) and State v. Smith, 184 Ariz. 456, 458, 910 P.2d 1 (Ariz. 1996), and Rules 6.3(b) and 32.1(f) of the Arizona Rules of Criminal Procedure).) Petitioner did not cite to federal case law or specify any particular provision of the federal Constitution in the state courts, as required for purposes of exhaustion. See Date, 619 F.Supp.2d at 764; Baldwin v. Reese, 541 U.S. 27, 33 (2004); Duncan, 513 U.S. at 365-66.
Here, Petitioner raises the notice of appeal issue as an ineffective assistance of counsel claim in violation of his Sixth Amendment. (Doc. 7 at 7.) Petitioner was required to give the state courts the “opportunity to pass upon and correct” the alleged violation of Petitioner's constitutional rights. Duncan, 513 U.S. at 365. Because Arizona's procedural rules preclude Petitioner from returning to state court to properly exhaust this claim, Ground Two is technically exhausted but procedurally defaulted from this Court's review. See Date, 619 F.Supp.2d at 765-66; see also Moreno v. Gonzalez, 116 F.3d 409, 410 (9th Cir. 1997) (stating under Arizona's preclusion rule, petitioners generally are barred from raising any claim that was: (1) finally adjudicated on the merits in an appeal or in any previous PCR proceeding, or (2) waived at trial, on appeal, or in any previous collateral proceeding) (citing Ariz. R. Crim. P. 32.2(a)(2), (3)). Petitioner can overcome procedural default by showing cause for the default and resulting prejudice, or that a fundamental miscarriage of justice will occur absent consideration of the merits. See Coleman, 501 U.S. at 750.
Petitioner is unable to establish cause and prejudice. In his Reply, Petitioner cites to Maples v. Thomas, 565 U.S. 266 (2012) and Foley v. Biter, 793 F.3d 998 (9th Cir. 2015) to excuse the default. (Doc. 35 at 3.) Petitioner argues the Supreme Court in Maples held that “cause” to excuse a default may be shown when “counsel abandons the client without notice.” (Id.) Similarly, Petitioner contends Foley defines “abandonment” as counsel's failure to communicate with petitioner, preserve petitioner's ability to appeal, and counsel's withdrawal from the case. (Id.) However, the facts of both cases are dissimilar to Petitioner's. In Maples, the Court ruled the petitioner was able to show cause to excuse the procedural default of his claims after his two post-conviction attorneys left their firm and were unable to serve as his counsel, failed to seek the trial court's leave to withdraw, no other attorney at the firm moved to substitute counsel, and failed to inform the petitioner of their inability to serve as his counsel. 565 U.S. at 266. Moreover, in Foley, the Ninth Circuit found the petitioner was abandoned by his attorney after the attorney failed to notify petitioner that his habeas petition had been denied, failed to take measures to preserve his appellate rights, failed to withdraw as counsel, and discarded numerous unanswered letters from petitioner. 793 F.3d at 1003-04.
Under this precedent, Petitioner was not abandoned by counsel following sentencing. First, trial counsel withdrew from the case after Petitioner was sentenced, and the withdrawal was approved by the court. (Doc. 34-1, Exhs. L, M.) Second, Petitioner and trial counsel had multiple discussions about counsel withdrawing once Petitioner was sentenced. (See Doc. 34-1 at 377, 382). Trial counsel testified, “I'm sure we would have discussed [counsel not representing Petitioner on appeal] at some point and told him we wouldn't be representing him in an appeal without being paid ... [w]e did a trial for him without being paid[.]” (Doc. 34-1 at 377.) Counsel later testified, “we would have had [discussions about counsel withdrawing from the case after sentencing] way before . we ever even started trial, that - when things were done and when he was ultimately sentenced, we would be off the case . so [Petitioner] was aware [trial counsel] would be getting off his case as soon as [they] were done.” (Id. at 382.)
Further, Petitioner testified, “[trial counsel and Petitioner] had specific conversation [] that [trial counsel's] firm would not represent [him] on an additional hearing and/or in fact they would not even represent [him] on appeal.” (Doc. 34-1 at 397.) When asked if trial counsel specifically told Petitioner his firm would not represent him on appeal, Petitioner responded “[t]hat's one hundred percent correct.” (Id.) Thus, Petitioner's own testimony confirms he was aware trial counsel would be withdrawing from the case at the conclusion of sentencing and would not be representing Petitioner on appeal unless the firm was paid. (Id.) Moreover, Petitioner and trial counsel did not have any direct communication following sentencing. (Doc. 34-1 at 366.)
In sum, Petitioner's Ground Two claim is procedurally defaulted in the instant proceeding. The claim is not defaulted due to Petitioner's failure to file a notice of appeal; rather, it is defaulted because Petitioner did not raise it as an ineffective assistance of counsel claim in the state courts, as he does here. Thus, Petitioner is unable to establish cause and resulting prejudice to excuse the procedural default of this claim and has not shown that a fundamental miscarriage of justice will result from the denial.
Accordingly, Petitioner has not made the necessary showings to overcome the procedural bar and Ground Two is not reviewable by this Court.
C. Ground Three
1. Petitioner's Claim
In Ground Three, Petitioner contends the trial court ignored Arizona Rules of Criminal Procedure by allowing trial counsel to withdraw less than twenty-four hours after sentencing and by not appointing Petitioner new counsel when requested. (Doc. 7 at 8.) On petition for review, Petitioner argued the trial court “ignored” Rule 6.3(b) of the Arizona Rules of Criminal Procedure by allowing trial counsel to withdraw “24 hours after” sentencing. (Doc. 34-1, Exh. CC.) Petitioner further argued the trial court “ignored” Rule 31.5(e) of the Arizona Rules of Criminal Procedure when denying Petitioner's request for counsel. (Id.)
The Arizona Court of Appeals granted review but denied relief, stating: “[Petitioner] finally argues in passing that there was ongoing prosecutorial misconduct, and that the court erred by not appointing new counsel after permitting trial counsel to withdraw. Those arguments are waived because they were not first raised before the superior court, and because [Petitioner] neither cites relevant authority nor develops the arguments in a meaningful way. See Rule 33.16(c)(2)(B)[.]” (Doc. 34-1, Exh. FF, at 4) (internal citations omitted).
2. Application of Law
Petitioner's Ground Three is procedurally defaulted from this Court's review. As evidenced, supra, the Arizona Court of Appeals found this claim to be waived under state law and declined to address the claim on the merits. (Doc. 34-1, Exh. FF, at 4.) The state courts denied relief on independent and adequate state law grounds when finding Petitioner waived his right to argue prosecutorial misconduct or challenge the trial court's failure to appoint new counsel by not first presenting the issues to the superior court. This Court “will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Coleman, 501 U.S. at 729. The court of appeals' decision is independent of the federal question and adequate to support the judgment. Therefore, the procedural default doctrine applies to this claim.
Petitioner can overcome procedural default by showing cause for the default and resulting prejudice, or that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750. In his Reply, Petitioner attempts to excuse the default by citing to Kemp v. United States, - U.S. -, 142 S.Ct. 1856 (2022), and arguing that the Supreme Court ruled Rule 60(b) of the Federal Rules of Civil Procedure allows relief when a judge makes an error of law. (Doc. 35 at 3.) However, in Kemp, the petitioner was convicted by a federal jury and later filed an untimely 28 U.S.C. § 2255 motion to vacate his sentence. 142 S.Ct. at 1860. The district court dismissed the motion, and the petitioner did not appeal. Id. Nearly two years later, the petitioner attempted to reopen his § 2255 proceedings under Federal Rule of Civil Procedure 60(b), and argued his original petition was not untimely as the date of denial for his codefendants' rehearing petitions started the one-year period to file his motion. Id. The Supreme Court ultimately concluded that Rule 60(b)(1) of the Federal Rules of Civil Procedure includes a judge's legal errors, and since the petitioner's motion alleged such error, it was subject to the one-year limitation period, and therefore, untimely. Id. at 1865.
In short, the holding in Kemp does not apply to Petitioner. First, Petitioner's argument in Ground Three alleges the trial court “ignored” Rule 31.5(e) of the Arizona Rules of Criminal Procedure by not appointing Petitioner new counsel after his trial counsel withdrew from his case. (Doc. 35 at 3.) Rule 60(b)(1) of the Federal Rules of Civil Procedure does not apply to Petitioner's state law convictions, nor has Petitioner filed a motion to amend or alter judgment pursuant to Rule 60(b). Next, Petitioner was represented by counsel on both his Rule 32 and Rule 33 petitions. He could have raised his Ground Three claims in the state courts but failed to do so. Kemp is unavailing. Finally, Petitioner has not demonstrated that a fundamental miscarriage of justice will occur absent consideration of the merits.
Accordingly, Petitioner's Ground Three is procedurally defaulted and not reviewable by this Court.
D. Ground Four
1. Petitioner's Claim
In Ground Four, Petitioner contends the trial court improperly kept Petitioner quarantined in county jail for twenty-eight days, thus keeping him from phone and legal library access, as well as prohibiting him from filing a timely notice of appeal. (Doc. 7.) Petitioner argues this was a violation of his Fifth Amendment Due Process rights and claims he presented the issue on his first petition to the Arizona Court of Appeals. (Id.) However, Petitioner's Petition for Review did not raise a Fifth Amendment issue and his Motion for Reconsideration to the appeals court briefly stated trial counsel's withdrawal from the case less than twenty-four hours after sentencing “made it impossible to ask [trial counsel] to file a notice of appeal as [Petitioner] was in quarantine in county jail.” (Doc. 34-1 at 209.) This statement was raised in the context of arguing trial counsel was ineffective for “not following procedure as to Rule 6.3(b) [of the Arizona Rules of Criminal Procedure],” and the trial court “ignoring Arizona Rule of Criminal Procedure Rule 31.5(e).” (Id. at 210.) That is not the same claim as Petitioner raises here.
2. Application of Law
As discussed, supra, Petitioner was required to give the state courts the “opportunity to pass upon and correct” the alleged violation of Petitioner's constitutional rights. Duncan, 513 U.S. at 365. Having never presented this claim in the state courts, Petitioner's Ground Four has not been properly exhausted. See Baldwin, 541 U.S. at 29; O 'Sullivan, 526 U.S. at 845; Date, 619 F.Supp.2d at 762. Because Petitioner may no longer return to the state courts to properly exhaust this claim, it is technically exhausted but procedurally defaulted. See Date, 619 F.Supp.2d at 766 (holding “technical” exhaustion, and thus procedural default of the claim, occurs when a claim was not actually exhausted in state court, but the petitioner no longer has an available state remedy); see also Moreno, 116 F.3d at 410.
To excuse the procedural default of his claim, Petitioner reiterates his Ground Four claim in his Reply and argues the claim was presented to the court of appeals and Arizona Supreme Court. (See Doc. 35 at 4.) However, in his Amended Petition (Doc. 7), Petitioner stated Ground Four was presented in his “first petition” and was not presented to the Arizona Supreme Court. (See Doc. 7 at 10.) Further, while Petitioner contends the issue was presented to the court of appeals and Arizona Supreme Court (Doc. 35 at 4), Petitioner fails to direct the Court to any such evidence in the record. As discussed, supra, neither Petitioner's Petition for Review to the appeals court (Doc. 34-1, Exh. CC), Motion for Reconsideration (Doc. 34-1, Exh. GG), nor his Petition for Review to the Arizona Supreme Court (Doc. 34-1, Exh. JJ) raise a Fifth Amendment Due Process issue, as he does here.
The Court concludes Petitioner has failed to establish cause and prejudice to excuse the default and has not shown that a fundamental miscarriage of justice will result absent consideration of the merits. Petitioner's Ground Four is procedurally defaulted from review.
E. Ground Five
1. Petitioner's Claim
In Ground Five, Petitioner contends the trial court, prosecutor, and trial counsel made threats of life in prison, thus rendering the plea agreement involuntary and violating Petitioner's Fifth Amendment Due Process rights. (Doc. 7.) Petitioner contends this claim was presented to the Arizona Court of Appeals in his “first petition,” but admits it was not presented to the Arizona Supreme Court. (Id.) However, the Court was directed to no specific document in the record and was unable to locate any state petition in which Petitioner asserted a Fifth Amendment claim. The only potential reference the Court could identify was in Petitioner's Motion for Reconsideration submitted to the Arizona Court of Appeals. (Doc. 34-1, Exh. GG.) In that motion, he argued, “[w]ith threats of a life sentence from the [PCR] judge, and [trial counsel] giving [Petitioner] erroneous advice, [Petitioner] was coerced into signing a plea. Such representation may be deemed constitutionally ineffective.” (Doc. 34-1 at 208.) Against this backdrop, the Court begins its analysis.
2. Application of Law
A similar analysis in Ground Four, supra, applies here. While Petitioner made mention of the alleged “threats” in the state court, he did so in the context of a separate argument that trial counsel was ineffective. Such argument does not satisfy fair presentment of Ground Five to the state courts for purposes of exhaustion. See Baldwin, 541 U.S. at 29; O 'Sullivan, 526 U.S. at 845. Rather, Petitioner was required to fairly present his claims to the state court by describing both the operative facts and the federal legal theory on which his claims were based. See Date, 619 F.Supp.2d at 764. Because Petitioner never presented this due process claim in the state courts, much less argued a Fifth Amendment violation, the claim is technically exhausted but procedurally defaulted here. See id. at 766; Moreno, 116 F.3d at 410. To excuse the procedural default of this claim, Petitioner argues he “substantially complied with relevant state rule[s] and made good faith efforts to comply as in requesting counsel from the Arizona Court of Appeals, but yet being denied.” (Doc. 35 at 4.) However, Petitioner would not have been able to challenge the voluntariness of his plea agreement on direct appeal. Petitioner's PCR petition would have been the first time he could raise the issue, but Petitioner, through counsel, did not raise this claim in the PCR courts.
Further, the record belies the assertion that a fundamental miscarriage of justice will occur absent consideration of the merits. At the change of plea hearing, the judge found that “no threats were made to get the Defendant to enter into [the] plea agreement.” (Doc. 34-1, Exh. H.) Petitioner's Ground Five argues that threats of life in prison at the evidentiary hearing rendered his plea agreement involuntary. (See Doc. 7 (“The superior court [judge], [prosecutor], and [trial counsel] made threats of life in prison that [Petitioner] should spend the rest of [his] life in prison ... [t]hus making the plea not voluntary but induced in part by comments of the trial judge.”).) However, Petitioner entered a plea of guilty on June 11, 2020, admitted on the same date that no threats were made to get him to enter into the agreement (Doc. 34-1, Exh. H), and was sentenced on July 16, 2020 (Doc. 34-1, Exh. J). The evidentiary hearing did not occur until October 25, 2021, when Petitioner argues the “threats” were made. (Doc. 34-1, Exh. Y.) Thus, the record does not support that the alleged threats “induced” Petitioner to enter into the plea agreement, as the statements were not made until more than one year after he signed the plea agreement.
Accordingly, Petitioner has failed to establish cause and prejudice to excuse the default and has not shown that a fundamental miscarriage of justice will occur absent consideration of the merits. Petitioner's Ground Five is procedurally defaulted from review.
CONCLUSION
The Court concludes Petitioner is not entitled to relief on any ground raised in his habeas petition. The record is sufficiently developed, and the Court does not find that additional discovery or an evidentiary hearing is necessary for resolution of this matter. See Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 2011). Accordingly, IT IS THEREFORE RECOMMENDED that the Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 7) be DENIED and DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that Petitioner's request for additional discovery or an evidentiary hearing be DENIED.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because Petitioner has not shown jurists of reason would not find the procedural ruling debatable, and because Petitioner has not made a substantial showing of the denial of a constitutional right.
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), 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(a), 6(b) and 72. Thereafter, the parties have fourteen days within which to file a response to the objections.
Failure to timely file 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 timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed.R.Civ.P. 72.