Opinion
No. CV-18-03019-PHX-JGZ (DTF)
08-20-2019
Neil Ryan Mente, Petitioner, v. Charles Ryan, et al., Respondents.
REPORT AND RECOMMENDATION
Petitioner Neil Ryan Mente (Petitioner) presently incarcerated in the Arizona State Prison Complex-Tucson, filed an Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Amended Petition). Before the Court are the Amended Petition (Doc. 9), Respondent's Answer to Petition for Writ of Habeas Corpus (Doc. 15) and Petitioner's Reply to the State's Answer (Doc. 23). This matter was referred to Magistrate Judge Ferraro for Report and Recommendation. (Doc. 12.)
As more fully set forth below, the Magistrate Judge recommends that the district court, after its independent review, deny and dismiss the Petition.
BACKGROUND
State Trial Court Proceedings
Petitioner was charged in Scottsdale City Court, case number TR-2012-027943, for driving on a suspended license, unlawful use of a license, and speeding. (Doc. 16 at 8.) On December 17, 2012, Petitioner pled guilty in Scottsdale City Court to driving on a suspended license, and the charges for the other traffic violations were dismissed. (Id. at 17-18.)
On January 16, 2013, in case number CR-2013-000411, Petitioner was indicted by a grand jury in the Arizona Superior Court, Maricopa County and charged with one count of taking the identity of another. (Id. at 3-4.) The charge stemmed from police discovering a fictitious driver's license with Petitioner's picture but the identifying information of another person while conducting the traffic stop that led to Petitioner being charged in Scottsdale City Court. (Id. at 8.)
On June 25, 2013, Petitioner filed a motion to dismiss the January 2013 Maricopa County Superior Court indictment based on a violation of the Double Jeopardy Clause. (Id. at 7-14.) Petitioner argued that "knowingly possessing a fictitious driver's license is completely encompassed within the offense of taking identity of another," and that his right to be free from double jeopardy was violated when he was charged with the latter offense after the former charge had been dismissed. (Id. at 9-11.) After considering the motion, response and reply, the trial court denied Petitioner's motion to dismiss. (Id. at 21-36.)
On October 8, 2013, Petitioner was convicted by a jury of the charge of taking the identity of another. (Id. at 38-41.) On September 29, 2015, the trial court sentenced Petitioner to a 10-year term of imprisonment. (Id. at 44.)
Proceedings in the Court of Appeals
On direct appeal, Petitioner argued that the trial court abused its discretion in instructing the jury. (Id. at 51-84.) Petitioner's sole issue on appeal was that the trial court's jury instruction was erroneously broad and "converted the charge into a duplicitous one[.]" (Id. at 52.) The Arizona Court of Appeals found no error and affirmed Petitioner's conviction and sentence on May 9, 2017. (Id. at 133-39.)
Proceedings in the Arizona Supreme Court
Petitioner timely filed a petition for review with the Arizona Supreme Court, which was denied on November 17, 2017. (Id. at 141-159, 161.)
State PCR Court Proceeding
On January 18, 2018, Petitioner filed a notice of post-conviction relief ("PCR") pursuant to Rule 32 of the Arizona Rules of Criminal Procedure. (Id. at 163-67.) Petitioner's court appointed counsel timely filed a PCR petition in which he avowed that he had reviewed the record and could find no grounds for relief to raise and requested that Petitioner be allowed time to file a pro per PCR petition. (Id. at 175-79.) The trial court granted Petitioner leave to file a pro per petition. When Petitioner did not do so within the time allowed, the trial court dismissed the PCR proceeding on October 22, 2018. (Id. at 181-84.)
Federal Habeas Corpus Proceedings
About a month before the trial court's dismissal of his PCR proceeding, on September 24, 2018, Petitioner timely filed his habeas petition in district court. (Doc. 1.) On January 4, 2019, Petitioner timely filed his Amended Petition raising one ground for relief. (Doc. 9 at 6.)
Petitioner claims that his right to be free from double jeopardy pursuant to the Fifth and Fourteenth Amendments to the United States Constitution was violated because the charge that he faced in his Arizona Superior Court, Maricopa County case, the charge of taking the identity of another, arose out of "the same acts, facts, evidence and conduct" as one of the charges that was dismissed as part of the plea agreement in his Scottsdale City Court case. (Id.)
ANALYSIS
Exhaustion / Procedural Default
Legal Principles
This Court may consider a petitioner's application for writ of habeas corpus only if he "has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement prevents unnecessary federal court adjudication and affords the state courts with the opportunity to correct a constitutional violation. Rose v. Lundy, 455 U.S. 509, 518 (1982).
Exhaustion requires a prisoner to '"fairly present" his claim in each state court, thereby alerting that court to the federal nature of the claim." Baldwin v. Reese, 541 U.S. 27, 29 (2004). The Ninth Circuit has held that a prisoner in Arizona does not exhaust a claim for federal review unless he has presented it to the Arizona Court of Appeals. See, e.g., Castillo v. McFadden, 399 F.3d 993, 998 (9th Cir. 2004) ("To exhaust his Arizona remedies, Castillo had to give the Arizona courts a 'fair opportunity' to act on his federal due process claim before presenting it to the federal courts. ... We consider Castillo's briefing to the Arizona Court of Appeals to determine whether he fairly presented his federal due process claim to the Arizona courts.") (Citations omitted); Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999) (Except in cases in which life sentences or the death penalty has been imposed, Arizona state prisoners properly exhaust their claims for the purpose of federal habeas corpus by presenting them to the Arizona Court of Appeals). Fair presentation of a claim for exhaustion purposes requires "reference to a specific federal constitutional guarantee." Gray v. Netherland, 518 U.S. 152, 162-63 (1996). "[G]eneral appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair trial, are insufficient to establish exhaustion." Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999).
Additionally, under the independent state grounds principle, a federal habeas court generally may not review a claim if the state court's denial of relief rests upon an independent and adequate state ground. Coleman v. Thompson, 501 U.S. 722, 729 (1991). The United States Supreme Court has explained:
In the habeas context, the application of the independent and adequate state ground doctrine is grounded in concerns of comity and federalism. Without the rule, a federal district court would be able to do in habeas what this Court could not do on direct review; habeas would offer state prisoners whose custody was supported by independent and adequate state grounds an end run around the limits of this Court's jurisdiction and a means to undermine the State's interest in enforcing its laws.Id. at 730-31. A petitioner who fails to follow a state's procedural requirements for presenting a 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. Thus, in order to prevent a petitioner from subverting the exhaustion requirement by failing to follow state procedures, a claim not presented to the state courts in a procedurally correct manner is deemed procedurally defaulted and is generally barred from habeas relief. Id. at 731-32.
Claims may be procedurally barred from federal habeas review based either upon an express bar or an implied bar. See Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). If a state court expressly applied a procedural bar when the petitioner attempted to raise the claim in state court, and the procedural bar is both independent and adequate, 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 a federal claim, that claim can ordinarily not be reviewed in federal court.") If a state court applies a procedural bar and alternatively addresses the merits of the federal claim, the claim remains 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."); Bennet 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.")
An implied procedural bar may be applied to unexhausted claims where state procedural rules make a return to state court futile. Coleman, 501 U.S. at 735 n.1 (claims are barred from habeas review when not first raised before state courts and those courts "would now find the claims procedurally barred."); Franklin v. Johnson, 290 F.3d 1223, 1230-31 (9th Cir. 2002) ("[T]he procedural default rule barring consideration of a federal claim 'applies. . . if it is clear that the state court would hold the claim procedurally barred.'") (quoting Harris, 489 U.S. at 263 n.9). In Arizona, claims not previously presented to state courts on either direct appeal or collateral review are generally barred from federal review because those claims would most likely be procedurally barred. See Ariz. R. Crim. P. 32.1(d)-(h); 32.2 (a) (successive petitions for post-conviction relief strictly limited to certain claims); 32.4 (time bar).
Because Arizona's preclusion rule (Rule 32.2(a)) is both independent and adequate, its application to a claim by an Arizona court or its operation precluding a return to state courts to exhaust a claim will procedurally bar subsequent review of the merits of that claim by a federal habeas court. See Stewart v. Smith, 536 U.S. 856, 860 (2002) (determinations made under Arizona's procedural default rule are independent of federal law); see also Arizona v. Mala, 916 P.2d 1035, 1050-52 (Ariz. 1996) (waiver and preclusion rules are strictly applied in post-conviction proceedings); Carriger v. Lewis, 971 F.2d 329, 333 (9th Cir. 1992) (en banc) (rejecting assertion that Arizona courts' application of procedural default rules were "unpredictable and irregular"). Additionally, Arizona's time bar under Rule 32.4 is an additional bar that would make a return to state court fruitless. See Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002) (holding that if an Arizona habeas petitioner "has any exhausted claims" they are "procedurally defaulted . . . because he is now time-barred under Arizona law from going back to state court"); Moreno v. Gonzalez, 116 F.3d 409, 410 (9th Cir. 1997) (observing timeliness under Rule 32.4(a) as grounds for dismissal of a PCR petition, distinct from preclusion under Rule 32.2(a)).
Procedural Status of Petitioner's Claim
Petitioner's claim alleging that his double jeopardy rights were violated because the conduct for which he was convicted in the Arizona Superior Court, Maricopa County case arose out of the same acts, facts, evidence and conduct as one of the charges that was dismissed in his Scottsdale City Court case as part of a plea agreement, was presented to the state trial court in his motion to dismiss. The trial court determined the claim had no merit and denied the motion to dismiss. However, Petitioner did not present this claim to the Arizona Court of Appeals. The sole issue presented to the court of appeals on Petitioner's direct appeal was:
Whether an instruction including optional elements not supported by the facts created a duplicitous charge, which constituted reversible error when the jury was urged to and likely did convict appellant for crimes committed years prior to the charged date.See Doc. 16 at 74. Petitioner failed to properly exhaust the sole claim alleged in the Amended Petition. Castillo, supra; Swoopes, supra.
Petitioner cannot now return to state court to exhaust his claim. Any attempt by Petitioner to return to state court to exhaust his claim would be barred by the state's procedural rules. See, e.g., Ariz. R. Crim. 32.1(d) - (h); 32.2(a). Additionally, the time for filing a state court PCR petition has passed. See Ariz. R. Crim. P. 32.4(c).
In sum, this Court determines that the sole ground for relief raised in the Amended Petition is procedurally defaulted.
The Procedural Default Cannot be Excused
Federal habeas review of a procedurally defaulted claim is precluded unless the default is excused. A procedural default may be excused if a habeas petitioner establishes either (1) "cause" and "prejudice," or (2) that a fundamental miscarriage of justice has occurred. Sawyer v. Whitley, 505 U.S. 333, 339 (1992). "Cause" that is sufficient to excuse a procedural default is "some objective factor external to the defense" which precludes the Petitioner's ability to pursue his claim in state court. Murray, 477 U.S. at 488. "Prejudice" in the habeas context means actual, objective harm resulting from the alleged error. United States v. Frady, 456 U.S. 152, 170 (1982) (a habeas petitioner "shoulder[s] the burden of showing, not merely that the errors...created a possibility of prejudice, but that they worked to his actual and substantial disadvantage" and infected the state proceedings with errors of constitutional dimension). (Emphasis in original.) A fundamental miscarriage of justice may occur 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) (the merits of a defaulted claim could be reached "in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent...")
Petitioner argues that "on direct review the appellate counsel refused to raise the double-jeopardy claim." (Doc. 23 at 2.) Petitioner appears to claim that the ineffective assistance of his appellate counsel caused the default of his habeas claim. While ineffective assistance of counsel can constitute cause for a procedural default, the exhaustion doctrine generally requires that a claim of IAC be presented to the state court as an independent claim before such a claim may be used to establish cause to excuse a procedural default. See Murray, 477 U.S. at 488 ("[T]he exhaustion doctrine, which is 'principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings,' Rose v Lundy, 455 U.S. 508, 518 (1982), generally requires that a claim of ineffective assistance be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default."). Petitioner failed to present any IAC claim(s) in the state courts. Petitioner's PCR proceeding was dismissed for his failure to file a PCR petition. See Doc. 16 at 181-84.
This Court determines that Petitioner has not established the cause that is required for the district court to excuse the procedural default of his sole habeas claim. Since this Court determines that Petitioner has failed to establish cause, it need not determine whether Petitioner has established actual prejudice. See, e.g., Frady, 456 U.S. at 168 ("[W]e find it unnecessary to determine whether Frady has shown cause, because we are confident he suffered no actual prejudice..."). Nevertheless, this Court determines that Petitioner has also failed to establish that he has suffered actual prejudice.
Petitioner summarily claims that "competent representation of this double-jeopardy claim would necessarily have resulted in a dismissal of the charges." (Doc. 23 at 2.) Petitioner's bare assertion is insufficient to establish prejudice. See Id., 456 U.S. at 170 (a habeas petitioner "must shoulder the burden of showing, not merely that the errors...created a possibility of prejudice, but they worked to his actual and substantial disadvantage...")
Finally, there are also no grounds upon which this Court could determine that Petitioner would suffer a fundamental miscarriage of justice if the default of Petitioner's sole claim for relief was not excused. Petitioner has made no effort to argue (much less establish) that he is actually innocent of the charge of taking the identity of another as found by the jury. (Doc. 23 at 1-4.)
In sum, there are no grounds upon which this Court can recommend that the district court excuse the procedural default of Petitioner's claim.
RECOMMENDATION
This Court determines that the sole ground for relief raised in the Petition is procedurally defaulted without excuse and precluded from federal habeas review. Accordingly, the Magistrate Judge recommends that the district court, after its independent review, DISMISS the Petition for Writ of Habeas Corpus.
Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the district court. If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should use the following case number: 2:18-cv-03019-JGZ.
Dated this 20th day of August, 2019.
/s/_________
Honorable D. Thomas Ferraro
United States Magistrate Judge