Opinion
No. CV-18-01208-PHX-JGZ (DTF)
06-26-2019
Lancer James Moore, Petitioner, v. Charles L Ryan, et al., Respondents.
REPORT AND RECOMMENDATION
Petitioner Lancer James Moore (Petitioner) presently incarcerated in the Arizona State Prison-Kingman in Kingman, Arizona, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Petition). Before the Court are the Petition (Doc. 1), Respondent's Answer to Petition for Writ of Habeas Corpus (Doc. 9) and Petitioner's Rebuttal to Answer to Petition for Writ of Habeas Corpus (Doc. 10). This matter was referred to Magistrate Judge Ferraro for Report and Recommendation. (Doc. 11.)
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
On August 2, 2013, Petitioner was indicted by a grand jury in the Arizona Superior Court, Maricopa County and charged with three counts of sexual conduct with a minor and two counts sexual abuse. (Doc. 9-1 at 16-18.) On August 26, 2014, Petitioner entered a plea agreement with the State. (Id. at 10-12.) Under the terms of the plea agreement, Petitioner agreed to plead guilty to one count of sexual conduct with a minor (Count 1 of the indictment) and two counts of attempted sexual abuse (Counts 2 and 5 of the indictment). (Id. at 10.) For Count 1, the parties agreed that Petitioner would be sentenced in a range of a minimum prison sentence of 13 years flat, a presumptive sentence of 20 years flat, and a maximum sentence of 27 years flat. (Id.) For Counts 2 and 5, the parties agreed that Petitioner's sentence would be suspended and he must register as a sex offender, and may be placed on probation for a lifetime term. (Id.) The State agreed to dismiss the two remaining counts of sexual conduct with a minor (Counts 3 and 4 of the indictment). (Id. at 11.) On October 17, 2019, the trial court sentenced Petitioner in accordance with the plea agreement and imposed a presumptive sentence of 20 years flat for Count 1 and lifetime probation on Counts 2 and 5. (Id. at 38.)
State PCR Court Proceedings
On November 18, 2014, Petitioner filed a notice of post-conviction relief ("PCR") pursuant to Rule 32 of the Arizona Rules of Criminal Procedure. (Id. at 56-57.) After Petitioner's court appointed counsel found no colorable claim for relief, the court granted Petitioner an opportunity to file a pro per PCR petition and ordered that defense counsel remain in an advisory capacity for Petitioner. (Id. at 58-59.)
With the assistance of his court appointed counsel, Petitioner filed his PCR petition primarily attacking his 20-year flat-time prison sentence on the grounds that his sentencing under Ariz. Rev. Stat. § 13-705 (statute governing sentencing for those convicted of violating Arizona's dangerous crimes against children statute) was improper and raising a claim of prosecutorial misconduct and ineffective assistance of counsel. (Id. at 60-78.)
After considering the PCR petition, response and reply, on June 13, 2016, the trial court determined that Petitioner stated no colorable claim for relief. (Id. at 89.) The trial court determined that Petitioner, pursuant to his plea of guilty, was precluded from seeking relief on his claim of prosecutorial misconduct. (Id.) Additionally, the trial court determined that Petitioner's claim regarding his 20-year flat-time prison sentence was meritless. (Id. at 90.) Finally, the trial court ruled that Petitioner's trial counsel correctly interpreted the sentencing statutes and conveyed those interpretations to the defendant. (Id.) Thus, the trial court determined that Petitioner failed to establish his claim of ineffective assistance of counsel. (Id.)
Proceedings in the Court of Appeals
On July 20, 2016, Petitioner filed a Petition for Review in the Arizona Court of Appeals seeking review of the trial court's dismissal of his PCR petition. (Id. at 78-85.) The Arizona Court of Appeals granted review but denied relief. (Id. at 86.) The appellate court determined there was no support for Petitioner's argument that his sentencing under A.R.S. § 13-705 was improper (Id. at 88-88.) Thus, the court of appeals rejected Petitioner's attacks on the sentencing range. (Id.) Additionally, the court of appeals limited its review to the arguments raised in Petitioner's Petition for Review because he failed to comply with Arizona Criminal Procedure Rule 32.9 when he "incorporated by reference" his pro se PCR petition. (Id.)
Proceedings in the Arizona Supreme Court
On February 14, 2018, Petitioner filed a "Motion to Withdraw Petition for Review" to the Arizona Supreme Court. (Id. at 91.) The state supreme court issued an order granting the motion and dismissing the petition. (Id.) ...
Federal Habeas Corpus Proceedings
On April 19, 2018, Petitioner timely filed his Section 2254 petition for a writ of habeas corpus raising four grounds for relief. (Doc. 1.)
In Ground One, Petitioner argues that he was subjected to an unconstitutional search and seizure in violation of the Fourth Amendment to the United States Constitution. (Id. at 6.) In Ground Two, Petitioner alleges that he was subjected to prosecutorial misconduct in violation of the Fifth and Fourteenth Amendments to the United States Constitution. (Id. at 7.) In Ground Three, Petitioner claims that his trial counsel rendered ineffective assistance in violation of the Sixth Amendment to the United States Constitution. (Id. at 8.) In Ground Four, Petitioner asserts that he was subjected to additional misconduct by the prosecutor in violation of the Fourteenth Amendment to the United States Constitution. (Id. at 9.)
ANALYSIS
Exhaustion / Procedural Default
Legal Principles
This Court may consider 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. § 2554(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, 501 U.S. at 729. 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 a 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. Muller, 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); 32.9 (contents requirement for a petition for review).
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. Mata, 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 contents requirement of a petition for review under Rule 32.9 prohibits a petitioner from raising an issue through incorporation of any document by reference, except for appendices. Ariz. R. Crim. P. 32.9(c)(1)(iv). See Wood v. Ryan, 693 F.3d 1104, 1117 (9th Cir. 2012) (holding that an Arizona habeas petitioner fails to fairly present his claims to the Arizona Supreme Court if the state's procedural requirements were not met).
Procedural Status of Petitioner's Claims
Petitioner's two prosecutorial misconduct claims (Grounds 2 and 4) and his ineffective-assistance-of-counsel claim (Ground 3) were not considered on their merits by the Arizona Court of Appeals. This is because Petitioner improperly incorporated by reference his state court PCR petition in his Petition for Review that he filed in the court of appeals. (Doc. 9-1 at 88.) As such, Petitioner has not properly exhausted his claims in Grounds 2, 3, and 4 of the Petition. See Nunnemaker, 501 U.S. at 801 ("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.") Petitioner's search and seizure claim (Ground 1) was never presented to the Arizona Court of Appeals. See, e.g., Doc. 9-1 at 79-80. Petitioner failed to properly exhaust his search and seizure claim. Castillo, supra; Swoopes, supra.
Petitioner cannot now return to the state court to exhaust these claims. As mentioned above, habeas review of Ground 2, 3, and 4 is barred because the state court of appeals expressly applied a procedural bar to these claims. Nunnemaker, supra. Any attempt by Petitioner to return to state court to exhaust his claim in Ground 1 would be barred by the state's procedural rules. See, e.g., Ariz. R. Crim. 32.1(d) - (h); 32.2(a).
In sum, this Court determines that all of the grounds for relief raised in the Petition are procedurally defaulted.
The Procedural Defaults 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" is a legitimate excuse for the default and "prejudice" is actual harm resulting from the alleged constitutional violation. Thomas v. Lewis, 945 F.2d 1119, 1123 (9th Cir. 1991). (Citation omitted.) "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, 477 U.S. at 496 (holding that 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 has failed to establish that cause exists to excuse the procedural default of his four claims. The procedural default of Petitioner's four claims did not result from some objective factor external to his defense which precluded his ability to pursue his claims in state court. Petitioner's two prosecutorial misconduct claims and his ineffective-assistance-of-counsel claim were not considered by the court of appeals because Petitioner failed to comply with Arizona Criminal Procedure Rule 32.9. Petitioner offers no explanation for his failure to present his search and seizure claim to the Arizona Court of Appeals. Petitioner has also failed to establish that he has suffered prejudice.
There are also no grounds upon which this Court could determine that Petitioner would suffer a fundamental miscarriage of justice if the defaults were not excused. Petitioner admitted guilt by entering into a plea and he has not challenged the voluntariness of his plea.
In sum, this Court concludes that there are no grounds upon which this Court can recommend that the district court excuse the procedural defaults of Petitioner's claims. ...
RECOMMENDATION
This Court determines that all of the ground for relief raised in the Petition are 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-1208-JGZ.
Dated this 26th day of June, 2019.
/s/_________
Honorable D. Thomas Ferraro
United States Magistrate Judge