Opinion
CV-21-00954-PHX-ROS (DMF)
11-17-2021
Ismael Antonio Murphy-Richardson, Petitioner, v. Maricopa County Superior Court, et al., Respondents.
REPORT AND RECOMMENDATION
Honorable Deborah M. Fine, United States Magistrate Judge
TO THE HONORABLE ROSLYN O. SILVER, SENIOR UNITED STATES DISTRICT JUDGE:
On May 28, 2021, Petitioner Ismael Murphy-Richardson (“Petitioner”), who is confined in an Arizona correctional facility, filed a pro se Petition for Habeas Corpus (Doc. 1) (“Petition”). The Court dismissed the Petition with leave to amend by using the court-approved habeas petition form (Doc. 3). Petitioner subsequently filed an Amended Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 5). The Court dismissed the Amended Petition for Petitioner's failure to name a proper respondent and permitted Petitioner to file a second amended petition naming a proper respondent (Doc. 8).
The Petition was docketed by the Clerk of Court on June 1, 2021 (Doc. 1). Petitioner signed the Petition on May 28, 2021 (Doc. 1 at 8) and the postmarked envelope filed along with the Petition reflects that the Petition was mailed on May 28 (Doc. 1-1 at 1). Pursuant to the prison mailbox rule, the undersigned has used May 28, 2021, 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 as “Doc. #” refers to documents displayed in the official electronic document filing system maintained by the United States District Court, District of Arizona, under Case No. CV-21-00954-PHX-ROS (DMF).
Petitioner filed the Second Amended Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) on July 19, 2021 (“Second Amended Petition”) (Doc. 9 at 15). The Court required Respondents to file an answer (Doc. 11).
Respondents timely filed a Limited Answer to the Second Amended Petition (Doc. 22). Petitioner then filed a Reply (Doc. 32). Petitioner subsequently filed a “Cause of Action” that the Clerk docketed as a Motion to Amend Second Amended Petition (Doc. 15). Petitioner's “Cause of Action” docketed as a Motion to Amend Second Amended Petition (Doc. 15) was denied without prejudice because “Petitioner failed to file a proper proposed third amended petition on a court-approved form with strikeouts and additions per LRCiv 3.5(a) and LRCiv 15.1” (Doc. 39).
Petitioner has also filed a Motion for Stay of State Court Proceedings Pursuant to 28 [U.S.C.] § 2251(a)(1) (Doc. 53), to which Respondents have filed a Response (Doc. 57) and Petitioner has filed a Reply (Doc. 67).
This matter is on referral to the undersigned United States Magistrate Judge pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a report and recommendation (Doc. 11 at 5). For the reasons set forth below, it is recommended that the Court dismiss the Second Amended Petition (Doc. 9) with prejudice because the claims asserted are procedurally defaulted without excuse. As is discussed below, it is also recommended that the Court deny Petitioner's Doc. 53 motion to stay. Further, it is recommended that the Court deny a certificate of appealability.
I. STATE COURT PROCEEDINGS
A. Factual Background
At Petitioner's change of plea hearing in Maricopa County Superior Court on Case Number CR2018-102788-001 held on December 13, 2018, Petitioner expressly agreed with the factual basis supporting three counts of Sexual Assault, each a class 2 felony (Doc. 22-1 at 183-185). The factual basis included that during the night of December 21 to December 22, 2017, Victim B hosted a party attended by Petitioner (Id. at 183). Victim A fell asleep on a couch while intoxicated (Id.). Petitioner lay down next to Victim A and placed his penis inside Victim A's vagina without her permission while she was passed out (Id. at 183-184). Victim A left the party a short time later after her friends arrived (Id.). The factual basis further set forth that after Victim A departed, Petitioner went to the bed where Victim B was “passed out from alcohol” and first placed his fingers in her vagina without her consent and then put his penis inside her vagina, also without her consent, as she was awakening (Id. at 184). Petitioner also admitted at the change of plea hearing that at the time he committed the acts of December 2017, he was on probation for a conviction of a charge of Taking the Identity of Another in Maricopa County Case No. CR2016-002960-001 and also on probation for a conviction of Trafficking in Stolen Property in Maricopa County Case No. CR2016-002165-001 (Id. at 186-187).
B. Complaint, Indictment, Change of Plea, and Sentencing
A direct complaint was filed against Petitioner in Maricopa County Superior Court on January 18, 2018, charging him with one count of sexual assault as to Victim A and with two counts of sexual assault as to Victim B (Doc. 22-1 at 4-6). Petitioner made an initial appearance the same day at which the court appointed counsel for Petitioner, instructing Petitioner to contact the Office of the Maricopa County Public Defender for the specific attorney assignment (Id. at 14).
On January 23, 2018, a Maricopa County grand jury indicted Petitioner with the same charges contained in the direct complaint (Id. at 17-18). Petitioner was arraigned on January 30, 2018, at which he was represented by counsel Angel Raymond and entered a plea of not guilty on each of the charges (Id. at 22-26). At a pretrial conference conducted on April 12, 2018, counsel Raymond was permitted to withdraw, Petitioner waived his right to counsel, and the superior court appointed Kyle Ipson as advisory counsel for Petitioner (Id. at 28-30). However, at the superior court's status conference on August 27, 2018, the court ordered revoking Petitioner's right to self-representation “due to failure to follow court procedures at multiple court proceedings[, ]” including continually talking over the court and challenging the court's authority to proceed in his case (Id. at 33). The superior court appointed counsel Ipson to represent Petitioner in all further proceedings (Id.).
As Petitioner's trial date approached, appointed counsel made repeated, documented attempts to meet with Petitioner to discuss trial issues, but Petitioner consistently refused to see either counsel or an investigator with the public defender's office (Id. at 35-42). Jail personnel advised counsel that Petitioner would not meet with counsel because Petitioner insisted he was acting as his own attorney (Id. at 39).
On October 26, 2018, Petitioner's counsel moved the superior court for an examination of Petitioner's competence to stand trial under Arizona Rule of Criminal Procedure 11 (Id. at 44-45). Petitioner's counsel's concerns centered on Petitioner's refusals to communicate with him, counsel's observations that Petitioner's “demeanor, both in and out of court, has demonstrated that he has either the inability to consult with counsel and aid in his defense (in a constructive manner), or that he is choosing to be obstreperous[, ]” and that Petitioner's disruptive conduct in court had been escalating (Id. at 45). Counsel specifically requested that such an examination determine whether Petitioner was capable of conforming his conduct (Id.). The superior court docket reflects that in December 2018, Petitioner was determined to be competent to stand trial (Id. at 237).
During a superior court status hearing on December 13, 2018, Petitioner's counsel advised the court that Petitioner wished to plead guilty to the charges in the indictment (Id. at 167). Petitioner's handwritten “Notice of Change of Pleading” signed on December 1, 2018, was provided to the superior court, in which Petitioner stated that he wanted to change his plea from not guilty to guilty (Id. at 48). Petitioner wrote that he did “so intelligently and willingly knowing the seriousness of the crime and the consequences of [his] pleading guilty in the court of law” (Id.). Petitioner further wrote that he was pleading guilty of his “own free will” and without external force (Id.).
Counsel for Petitioner and the state advised the court that Petitioner had rejected a favorable plea offer and the state's attorney said the plea offer would be re-extended to Petitioner if Petitioner so desired (Id. at 169-170). The court reminded Petitioner that the plea offer would result in a term of imprisonment of no fewer than five years as well as lifetime probation to follow (Id. at 171-172). The court advised Petitioner that if he pleaded guilty to the counts of the indictment he would be facing a sentencing range between forty-seven and one-quarter years and eighty-four years of imprisonment, given that Petitioner had two prior felony convictions, Petitioner was on probation when he committed the underlying crimes, and there were allegations of aggravating circumstances (Id. at 173-174).
Petitioner told the court he wished to “take full responsibility” for his actions and leave his fate “up to God and the Court[]” (Id. at 174). The court reminded Petitioner that by accepting a plea agreement he would be taking responsibility for his actions, but at the same time could limit his prison term (Id.). Petitioner again declined to pursue the plea offer (Id. at 175). The superior court ascertained that Petitioner was fully aware that by pleading to the counts in the indictment he would waive certain appeal rights (Id.). Petitioner admitted to his actions and the factual basis underlying the three charges of sexual assault asserted in the indictment (Id. at 183-185). Petitioner further admitted he was on probation in case numbers CR2016-002165-001 and CR2016-002960-001 when he committed the crimes to which he was pleading guilty (Id. at 186-187). Petitioner pleaded guilty to the aggravating circumstances that Petitioner's actions caused physical, emotional, or financial harm to Victim A and Victim B, and that he had been convicted of a felony within ten years prior to December 22, 2017 (Id. at 190-191). At the end of the change of plea hearing, Petitioner requested to “receive all the documents pertaining to [his] cases for appeal process” and expressed that he had “90 days post-conviction relief” (Id. at 192). In response, the superior court stated to Petitioner that the “90 days does not start to run until the date that” Petitioner is sentenced (Id.). Petitioner said that he understood and “would rather be prepared so that way [he] can get right on the ball as soon as possible” (Id.). The court instructed that Petitioner speak to his counsel to identify the documents he believed he needed (Id. at 193). The court also stated that “if there are specific things that the [c]ourt can give you or the [c]ourt can order be provided, ” the court would do so at the sentencing (Id.).
The superior court held Petitioner's sentencing hearing on February 1, 2019 (Id. at 196-231). The court sentenced Petitioner to consecutive presumptive terms of 7 years of imprisonment on each of the three counts of sexual assault (Id. at 216-219). The court further ordered probation revoked in case numbers CR2016-002165-001 and CR2016-002960-001 and sentenced Petitioner to presumptive terms of 3 ½ years and 2 ½ years respectively, to run concurrently to the sentence on Count 1 of CR2018-102788-001 (Id. at 221-223). During part of the sentencing, Petitioner interrupted the court multiple times (Id. at 213-226). Nevertheless, the court advised Petitioner of his right to file a post-conviction relief (“PCR”) action within 90 days of sentencing and advised Petitioner that he would have to sign a copy of a document explaining PCR rights before he was taken from court (Id. at 225). Petitioner refused to sign a copy of a document explaining PCR rights (Id. at 226-227).
C. PCR Proceedings
1.First PCR proceeding
On January 4, 2019, Petitioner's trial counsel filed a motion for extension of time to file a PCR notice through November 1, 2019 (Doc. 22-1 at 65-66). The superior court construed the motion as a PCR notice, appointed new counsel to represent Petitioner, ordered transcripts prepared of Petitioner's change of plea and sentencing hearings, and ordered that a PCR Petition must be filed within 60 days of the date the transcripts were filed with the superior court (Id. at 69).
The superior court docket in CR2018-102788-001 reflects that Petitioner's appointed counsel filed a notice of completion of review advising the court that counsel was not able to identify a colorable claim (Id. at 235). The superior court filed Petitioner's pro se PCR petition on July 3, 2019 (Id. at 72-81). In his pro se Petition, Petitioner argued that his constitutional rights were violated by the state when it suppressed evidence, used perjured testimony, obstructed his right to appeal, and improperly determined his sentence by use of a prior conviction (Id. at 75). Petitioner also discussed generally the conduct required of judges (Id. at 73-75). Petitioner further asserted his criminal case proceedings were conducted in violation of law and that he had provided evidence demonstrating that “no reasonable fact finder would find [him] guilty beyond a reasonable doubt[]” (Id. at 75). Petitioner requested that he be permitted to withdraw his plea, that his conviction be vacated, and that “all legal information pertaining to him” be supplied to him without cost (Id. at 81).
In an order filed on July 29, 2020, the superior court recounted the procedural history of Petitioner's guilty pleas and sentencing and dismissed Petitioner's PCR petition (Id. at 92-95). Pursuant to Arizona Rule of Criminal Procedure 33.1, the court summarily dismissed Petitioner's claims, concluding that Petitioner had waived claims of constitutional violations via his guilty plea, or that he had failed to raise a material issue of fact or law entitling him to relief, or that his claims failed on the merits (Id. at 94-95). Petitioner did not file a petition for review with the Arizona Court of Appeals (Id. at 233-234).
2. Second PCR proceeding
Petitioner's subsequent PCR petition was filed in the superior court on June 8, 2020 (Doc. 22-1 at 97-105). In October 2020, the superior court noted that Petitioner wished to proceed pro per and established a briefing schedule (Id. at 112-113). Petitioner filed a pro per Rule 33 PCR petition on November 3, 2020 (Id. at 115-128). A few days later, Petitioner moved for leave to file an amended PCR petition and requested that counsel be appointed, both of which requests the court granted, allowing Petitioner to file a counseled amended PCR petition (Id. at 130-131). Petitioner's appointed counsel filed a PCR petition on February 22, 2021 (Id. at 133-140).
Through counsel, Petitioner argued that his trial counsel was ineffective by not advising Petitioner he should not plead guilty and alleged that he felt forced to enter a guilty plea by his counsel and also that medication he was taking “was affecting his mind[]” (Id. at 138-139). Petitioner further contended that counsel provided ineffective assistance of counsel (“IAC”) by failing to attempt to continue Petitioner's sentencing hearing or to file a motion to withdraw from the plea (Id. at 139). Petitioner requested an evidentiary hearing on the issues raised in the PCR petition (Id.).
The state filed a response on May 21, 2021 (Id. at 150-162), arguing that Petitioner's claims were precluded because they were not raised in his original PCR petition. The state also asserted that even if Petitioner's claims were not precluded, Petitioner's IAC claim was meritless because the trial court discussed the plea with Petitioner before Petitioner pleaded guilty and because Petitioner failed to identify any basis to withdraw from his guilty plea (Id.). The superior court entered a minute entry noting that the response had been filed, ordered that Petitioner's reply was due no later than June 7, 2021, and ordered that if Petitioner did not file a timely reply, the proceeding “must be assigned to a Judicial Officer for determination” (Doc. 71-1 at 2). The superior court docket reflects that Petitioner did not file a reply and that no determination by a judicial officer of the superior court has been made regarding Petitioner's second PCR proceeding (Doc. 71-1).
See also:
http://www.superiorcourt.maricopa.gov/docket/CriminalCourtCases/caseInfo.asp?caseNu mber=CR2018-102788 (accessed on November 12, 2021).
To have updated information before the Court when this matter is decided, this Court ordered Respondents to file monthly status reports with this Court regarding Petitioner's second PCR proceedings in the state courts beginning on December 1, 2021 (Doc. 102).
II.THESE HABEAS PROCEEDINGS
Petitioner names David Shinn as Respondent and the Arizona Attorney General as an Additional Respondent (Doc. 9 at 1). Petitioner asserts four grounds for relief in the Second Amended Petition (Id. at 6-13). Petitioner contends in Ground 1 that he was denied counsel at his initial appearance and grand jury proceedings “due to counsel being totally absent or prevented from assisting [him]” (Id. at 6). Petitioner alleges that if counsel had been present at the grand jury proceeding, he would have been better able to challenge statements made in an affidavit supporting a search warrant and statements made to the grand jury (Id.).
In Ground 2 Petitioner argues counsel Ipson's ineffective assistance “deprived him of a fair trial by causing him to accept a plea, and there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and [would have] gone to trial[]” (Id. at 11). Petitioner states that he was also denied effective assistance by counsel Raymond when she did not turn over the entire case file to him, failed to properly investigate the case, and did not examine or use critical, available evidence (Id. at 11). Additionally, Petitioner alleges counsel Ipson was ineffective for failing to file “habeas corpus as requested” or to advise Petitioner he could file a motion to withdraw his plea (Id.).
Petitioner's Ground 3 claim is that he was “deprived of the right to a fair opportunity to defend against the State's accusations, [and] the right to cross-examine witnesses and to call witnesses” at the grand jury proceeding (Id. at 12).
In Ground 4, Petitioner claims that his convictions on sexual assault lacked evidentiary support and states that the victims had made statements suggesting that the sexual contacts were consensual (Id. at 13).
The Court's Order that Respondents answer the Second Amended Petition specified:
Respondents must answer the Second Amended Petition within 40 days of the date of service. Respondents must not file a dispositive motion in place of an answer. Respondents may file an answer that (a) is limited to relevant affirmative defenses, including, but not limited to, statute of limitations, procedural bar, or non-retroactivity; (b) raises affirmative defenses as to some claims and discusses the merits of others; or (c) discusses the merits of all claims. The failure to set forth an affirmative defense regarding a claim in an answer may be treated as a waiver of the defense as to that claim, Day v. McDonough, 547 U.S. 198, 209-11 (2006), but an answer that is limited to affirmative defenses on a particular claim does not waive any argument on the merits as to that claim. If the answer only raises affirmative defenses, only those portions of the record relevant to those defenses need be attached
to the answer. If not, the answer must fully comply with all of the requirements of Rule 5 of the Rules Governing Section 2254 Cases.(Doc. 11 at 4).
In their response to the Second Amended Petition (Doc. 22), Respondents argue that Petitioner's claims are procedurally defaulted without excuse because Petitioner did not properly exhaust his habeas claims in his PCR actions in state court, Petitioner may not under state law return to state court to present the claims, and Petitioner has not established either cause and prejudice or actual innocence to excuse such default (Doc. 22 at 11-18). Additionally, Respondents contend that Petitioner's claims involving his rights regarding the grand jury proceedings are not cognizable on federal habeas corpus review (Id. at 18-19).
In reply, Petitioner asserts that Respondents have admitted his factual allegations and refers to various motions he had filed (Doc. 32 at 2-5). Petitioner also asserts that the procedural bar “argument is defeated where ‘circumstances exist that render such process ineffective to protect the rights of the applicant'” (Id. at 6). Petitioner does not identify how the procedural process in state court was ineffective to protect his rights.
III. PROCEDURAL DEFAULT
A. 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.”).
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, 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.” 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.” Netherland, 518 U.S. at 163; see also 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 presentment 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 presentment. 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). If a petitioner fails to fairly present his claim to the state courts in a procedurally appropriate manner, the claim is procedurally defaulted and generally barred from federal habeas review. Ylst v. Nunnemaker, 501 U.S. 797, 802-05 (1991). There are two categories of procedural default.
First, a claim may be procedurally defaulted in federal court if it was actually raised in state court but found by that court to be defaulted on state procedural grounds. Coleman, 501 U.S. at 729-30. This is called an express procedural bar. 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).
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, 489 U.S. at 264 n. 10 (“[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).
Second, the claim may be procedurally defaulted if the petitioner failed to present the claim in a necessary state court and “the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.” Coleman, 501 U.S. at 735 n. 1; Boerckel, 526 U.S. at 848 (when time for filing state court petition has expired, petitioner's failure to timely present claims to state court results in a procedural default of those claims); Smith v. Baldwin, 510 F.3d 1127, 1138 (9th Cir. 2007) (failure to exhaust claims in state court resulted in procedural default of claims for federal habeas purposes when state's rules for filing petition for post-conviction relief barred petitioner from returning to state court to exhaust his claims). This is called an implied procedural bar. Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). This type of procedural default is often referred to as “technical” exhaustion because although the claim was not actually exhausted in state court, Petitioner no longer has an available state remedy. Coleman, 501 U.S. at 732 (“A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no remedies any longer ‘available' to him.”).
In Arizona, claims not 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 on certain grounds and specified circumstances); 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 32 thus encompasses the rules applicable to a defendant's right to seek post-conviction relief when the defendant is convicted by trial. 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), rev'd on other grounds, Stewart, 536 U.S. 856; 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 completely fails to attempt to exhaust his state remedies.
B. Application of Exhaustion and Procedural Default to Record
1. Ground 1 claim that Petitioner was denied counsel at his initial appearance and in the grand jury proceedings
In Ground 1, Petitioner asserts he was denied due process, equal protection under the laws, and the assistance of counsel at critical stages of the state proceedings when counsel was “being totally absent or prevented from assisting the [P]etitioner at the initial appearance and grand jury proceeding” (Doc. 9 at 6). Petitioner alleges he was prevented from preserving his rights, cross-examining the witnesses against him and challenging inadmissible or inaccurate evidence (Id. at 6-10).
Petitioner did not exhaust his claim as is required prior to federal habeas review. 28 U.S.C. § 2254(b)(1). Petitioner failed to raise the Ground 1 claim in his July 2019 pro se PCR proceeding (Doc. 22-1 at 72-82) and further did not present the claim to the Arizona Court of Appeals as is required to exhaust state remedies. Castillo, 399 F.3d at 998 n.3 (claims of Arizona prisoners not sentenced to life in prison or to death “are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.”) (citing Swoopes, 196 F.3d at 1010).
Additionally, Petitioner's Ground 1 claim is subject to an implied procedural bar because if Petitioner were to return to present the claim to the superior court, the court would find the claim procedurally barred. Coleman, 501 U.S. at 735 n.1. The claim is precluded from relief pursuant to Arizona Rule of Criminal Procedure 33.2(a)(3) because Petitioner was able to raise this claim in his July 2019 PCR proceeding but did not do so. Ariz. R. Crim. P. 33.2(a)(3) (PCR relief is precluded on any claim “waived in any previous post-conviction proceeding, except when the claim raises a violation of a constitutional right that can only be waived knowingly, voluntarily, and personally by the defendant.”) (emphasis supplied). The italicized language was added to the rule in January 2020, but even under the prior rule, Arizona courts limited an exception to preclusion only in circumstances where “an asserted claim is of sufficient constitutional magnitude.” Stewart v. Smith, 202 Ariz. 446, 449, 46 P.3d 1067, 1070 (2002). The Arizona Supreme Court has instructed that examples encompassed by this phrase include the right to counsel, the right to a jury trial, and the right to a twelve-person jury. See Id. Petitioner has not shown that his Ground 1 claim alleges a violation of a constitutional right that can only be waived knowingly, voluntarily, and personally by the defendant. This is particularly so because, as is discussed below in Section IV, state defendants do not have a federal right to be prosecuted by indictment. Accordingly, under Rule 32.2(a)(3), Petitioner cannot return to state court to litigate his Ground 1 claim and it is procedurally defaulted.
Arizona Rule of Criminal Procedure 33.4(b)(3) permits a defendant to raise a successive claim limited to a claim of IAC by PCR counsel by filing a notice within 30 days after the superior court's final order in the first PCR proceeding. Ariz. R. Crim. P. 33.4(b)(3)(C). Petitioner does not assert any claim of IAC by PCR counsel in the Second Amended Petition.
Pursuant to Arizona Rule of Criminal Procedure 33.4(b)(3)(B), a defendant may assert claims identified in Rule 33.1(b) through (h) “within a reasonable time after discovering the basis for the claim.” Ariz. R. Crim. P. 33.4(b)(3)(B). Arizona Rule of Criminal Procedure 33.1(b) through (h) identifies grounds for PCR relief where: (b) the court lacked “subject matter jurisdiction to render a judgment or to impose a sentence on the defendant”; (c) the sentence was not “authorized by law or by the plea agreement”; (d) the defendant is or will be in custody after his sentence has expired; (e) “newly-discovered material facts probably exist” and such facts “probably would have changed the judgment or sentence”; (f) the failure to file a timely notice of PCR was not the defendant's fault; (g) “there has been a significant change in the law that, if applicable to the defendant's case, would probably overturn the defendant's judgment or sentence”; and (h) “the defendant demonstrates by clear and convincing evidence that the facts underlying the claim would be sufficient to establish that no reasonable fact-finder would find the defendant guilty of the offense beyond a reasonable doubt.” Ariz. R. Crim. P. 33.1(b)-(h).
Petitioner does not discuss, and the record does not establish, that Petitioner's Ground 1 claim could be raised under Arizona law in a successive PCR proceeding. See Ariz. R. Crim. P. 33.1(b)-(h), 33.2(b)(1), 33.4(b)(3)(B).
For the reasons set forth above, Petitioner's Ground 1 claim is unexhausted and subject to implied procedural bar. Thus, the claim is procedurally defaulted.
2. Ground 2 claims
Within Ground 2, Petitioner asserts IAC claims against his initial trial counsel Raymond and also against trial counsel Ipson, who represented Petitioner at his change of plea and sentencing hearings.
a. Ground 2 claims that trial counsel Raymond was ineffective
Under Ground 2, Petitioner alleges that his initial trial counsel Raymond provided IAC when she failed to provide him the entire case file, did not investigate the case properly, and failed to examine or use available critical information (Doc. 9 at 11).
Petitioner failed to exhaust these claims as is required prior to federal habeas review. 28 U.S.C. § 2254(b)(1). Petitioner did not assert his Ground 2 claims regarding counsel Raymond in his July 2019 pro se PCR proceeding (Doc. 22-1 at 72-82) and further did not present the claims to the Arizona Court of Appeals as is required to exhaust state remedies. Castillo, 399 F.3d at 998 n.3 (claims of Arizona prisoners not sentenced to life in prison or to death “are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.”) (citing Swoopes, 196 F.3d at 1010).
In addition to being unexhausted in state court, Petitioner's Ground 2 claims alleging IAC by counsel Raymond are subject to an implied procedural bar because if Petitioner were to return to present the claims to the superior court now, the court would find the claims procedurally barred. Coleman, 501 U.S. at 735 n.1. Because Petitioner was able to raise these claims in his July 2019 PCR proceeding but did not do so, the claims are precluded from relief pursuant to Arizona Rule of Criminal Procedure 33.2(a)(3). Arizona Rule of Criminal Procedure 33.2(a)(3) requires that PCR relief is precluded on any claim “waived in any previous post-conviction proceeding, except when the claim raises a violation of a constitutional right that can only be waived knowingly, voluntarily, and personally by the defendant.” In Stewart, the Arizona Supreme Court explained that claims based on IAC are determined by considering the “nature of the right allegedly affected by counsel's ineffective performance.” Stewart, 202 Ariz. at 450, 46 P.3d at 1071. Petitioner's Ground 2(a) claims of IAC by counsel Raymond do not implicate the rights which the Arizona Supreme Court has identified as requiring a personal waiver.
Further, Petitioner does not argue, and the record does not establish, that his Ground 2 claims involving IAC by counsel Raymond could be raised under Arizona law in a successive PCR proceeding. See Ariz. R. Crim. P. 33.1(b)-(h), 33.2(b)(1), 33.4(b)(3)(B).
For the reasons discussed above, Petitioner's Ground 2 claims of IAC by counsel Raymond are unexhausted and subject to implied procedural bar. Thus, the claims are procedurally defaulted.
b. Ground 2 claims that trial counsel Ipson was ineffective
In Ground 2, Petitioner asserts that trial counsel Ipson failed to advise him that he could file a motion to withdraw his plea and failed to “file habeas corpus as requested” (Doc. 9 at 11). The record before the Court reveals that Petitioner did not assert either of these claims in his initial PCR action filed in July 2019 (Doc. 22-1 at 72-81, 133-140).
Although Respondents state that Petitioner had not raised the claim that counsel Ipson was ineffective for failing to advise him he could move to withdraw from the guilty plea in his PCR filings (Doc. 22 at 14), the record shows that this claim was raised in Petitioner's February 2021 petition. In the successive PCR petition filed by appointed counsel Nicole Countryman on February 22, 2021, counsel Countryman explained that Petitioner was seeking relief because Petitioner's “guilty plea was involuntary, and his attorney was ineffective[]” (Doc. 22-1 at 133). In setting forth the factual basis for the petition, counsel relied on Petitioner's accompanying affidavit in which Petitioner declared he was forced to plead guilty by his trial counsel as well as the prosecution and that counsel Ipson permitted him to plead guilty under duress and the influence of psychotropic medication, led Petitioner to believe Ipson would not adequately assist in the defense, failed to explain to Petitioner the provisions of the plea agreement or the consequences of taking the plea, and did not inform Petitioner about the “entire process” including “how to change the plea back from guilty to not guilty” and his other rights associated with the plea (Id. at 134-136, 142-147). Counsel Countryman further noted in the discussion of facts that Petitioner had averred that counsel Ipson “did not advise him of the option of filing a motion to withdraw from the plea[]” (Id. at 135). Counsel Countryman stated that although it was clear at the sentencing hearing that Petitioner wanted to withdraw from the plea agreement, his counsel “never filed a motion on his behalf for him to do so[]” (Id. at 136).
However, Petitioner failed to exhaust in state court either of his Ground 2 claims asserting IAC by counsel Ipson as is required prior to federal habeas review. 28 U.S.C. § 2254(b)(1). Petitioner did not assert his Ground 2 claims regarding counsel Ipson in his July 2019 pro se PCR proceeding (Doc. 22-1 at 72-82) and did not present the claims to the Arizona Court of Appeals as is required to exhaust state remedies. Castillo, 399 F.3d at 998 n.3 (claims of Arizona prisoners not sentenced to life in prison or to death “are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.”) (citing Swoopes, 196 F.3d at 1010). Even though Petitioner raised in the February 2021 PCR action the Ground 2 claim that counsel Ipson was ineffective for not advising him he could file a motion to withdraw from the plea, he did not exhaust this claim in a procedurally appropriate manner. See Gallegos v. Schriro, 583 F.Supp.2d 1041, 1051 (D. Ariz. 2008) (“To exhaust state remedies, a petitioner must ‘fairly present' the operative facts and the federal legal theory of his claims to the state's highest court in a procedurally appropriate manner.”) (citing Boerckel, 526 U.S. at 848). Because Petitioner first raised the claim in a successive PCR petition rather than in his initial PCR proceeding, the claim was not asserted in a procedurally appropriate manner under Arizona law because Petitioner could have raised it in his July 2019 PCR proceeding but failed to do so. Ariz. R. Crim. P. 33.2(a)(3).
While Petitioner's February 2021 PCR action was counseled, counsel Countryman did not assert that the action qualified for consideration as a successive petition or attempt to explain why any claims raised should not be deemed waived/precluded, such as contending that the claims could be raised in a second or successive petition. See Ariz. R. Crim. P. 33.1(b)-(h), 33.2(b)(1), 33.4(b)(3)(B).
In addition to being unexhausted in state court, Petitioner's Ground 2 claims alleging IAC by counsel Ipson are subject to an implied procedural bar because if Petitioner were to return to present the claims to the superior court now, the court would find the claims procedurally barred. Coleman, 501 U.S. at 735 n.1. These claims are precluded from relief pursuant to Arizona Rule of Criminal Procedure 33.2(a)(3) because Petitioner was able to raise the claims in his July 2019 PCR proceeding but failed to do so. Arizona Rule of Criminal Procedure 33.2(a)(3) requires that PCR relief is precluded on any claim “waived in any previous post-conviction proceeding, except when the claim raises a violation of a constitutional right that can only be waived knowingly, voluntarily, and personally by the defendant.”). Ariz. R. Crim. P. 33.2(a)(3). Petitioner's Ground 2 claims of IAC by counsel Ipson do not implicate the rights which the Arizona Supreme Court has identified as requiring a personal waiver. Stewart, 202 Ariz. at 450, 46 P.3d at 1071.
Further, Petitioner does not assert, and the record does not establish, that his Ground 2 claims involving IAC by counsel Ipson could be raised under Arizona law in a successive PCR proceeding. See Ariz. R. Crim. P. 33.1(b)-(h), 33.2(b)(1), 33.4(b)(3)(B).
For the above-discussed reasons, Petitioner's Ground 2 claims of IAC by counsel Ipson are unexhausted and subject to implied procedural bar. Thus, the claims are procedurally defaulted.
3. Ground 3 claims Petitioner was denied the right to defend against the state's accusations, confront the state's witnesses, or present witnesses at the grand jury proceedings
Petitioner contends in Ground 3 that he was “deprived of the right to a fair opportunity to defend against the state's accusations, the right to cross-examine witnesses and to call witnesses” at the grand jury proceeding (Id. at 12).
However, Petitioner did not exhaust these claims as is required prior to federal habeas review. 28 U.S.C. § 2254(b)(1). Petitioner did not assert these Ground 3 claims in his July 2019 pro se PCR proceeding (Doc. 22-1 at 72-82) and further did not present the claims to the Arizona Court of Appeals as is required to exhaust state remedies. Castillo, 399 F.3d at 998 n.3.
Petitioner's Ground 3 claims also are subject to an implied procedural bar because if Petitioner were to return to present the claims to the superior court now, the court would find the claims procedurally barred. Coleman, 501 U.S. at 735 n.1. The claims are precluded from relief pursuant to Arizona Rule of Criminal Procedure 33.2(a)(3) because Petitioner was able to raise the claims in his July 2019 PCR proceeding but did not do so (Doc. 22-1 at 72-82). Ariz. R. Crim. P. 33.2(a)(3) (PCR relief is precluded on any claim “waived in any previous post-conviction proceeding, except when the claim raises a violation of a constitutional right that can only be waived knowingly, voluntarily, and personally by the defendant.”). Petitioner's Ground 3 claims do not implicate the rights which the Arizona Supreme Court has identified as requiring a personal waiver. Stewart, 202 Ariz. at 450, 46 P.3d at 1071.
Moreover, Petitioner does not discuss, and the record does not establish, that Petitioner's Ground 3 claims could be raised under Arizona law in a successive PCR proceeding. See Ariz. R. Crim. P. 33.1(b)-(h), 33.2(b)(1), 33.4(b)(3)(B). Petitioner's Ground 3 claims are unexhausted and subject to implied procedural bar. Thus, the claims are procedurally defaulted.
4. Ground 4 claim that Petitioner's conviction is not supported by the evidence
Petitioner argues in Ground 4 that his convictions on sexual assault lacked evidentiary support and states that the victims' statements suggested that the sexual contacts were consensual (Doc. 9 at 13). In Petitioner's July 2019 PCR petition, he asserted that the evidence was insufficient to support his convictions (Doc. 22-1 at 75-77). After the superior court dismissed the petition (Doc. 22-1 at 92-95), however, Petitioner failed to file a petition for review in the Arizona Court of Appeals and thus did not exhaust his Ground 4 claim in the state courts as is required pursuant to 28 U.S.C. § 2254(b)(1). Swoopes, 196 F.3d at 1010.
In addition to being unexhausted in state court, Petitioner's Ground 4 claim is subject to an implied procedural bar because if Petitioner attempted to return to present the claim to the Arizona Court of Appeals any such petition for review would be untimely and thus procedurally barred. Coleman, 501 U.S. at 735 n.1. As Petitioner was able to raise this claim in his July 2019 PCR proceeding in the Arizona Court of Appeals but failed to do so, the claim is precluded from relief pursuant to Arizona Rule of Criminal Procedure 33.2(a)(3). Arizona Rule of Criminal Procedure 33.2(a)(3) requires that PCR relief is precluded on any claim “waived in any previous post-conviction proceeding, except when the claim raises a violation of a constitutional right that can only be waived knowingly, voluntarily, and personally by the defendant.”). Petitioner's Ground 4 claim does not implicate the rights which the Arizona Supreme Court has identified as requiring a personal waiver. Stewart, 202 Ariz. at 450, 46 P.3d at 1071.
Further, Petitioner does not argue, and the record does not establish, that his Ground 4 claim could be raised under Arizona law in a successive PCR proceeding. See Ariz. R. Crim. P. 33.1(b)-(h), 33.2(b)(1), 33.4(b)(3)(B).
For the reasons set forth above, Petitioner's Ground 4 claim is unexhausted and subject to implied procedural bar. Thus, the claim is 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). Cause “must be something external to the petitioner.” Id. External factors include obstacles such as “a showing that the factual or legal basis for a claim was not reasonably available” or that “interference by officials ... made compliance impracticable.” Murray v. Carrier, 477 U.S. at 488 (internal citations omitted).
A petitioner's status as an inmate, lack of legal or technical knowledge, lack of education, and limited legal resources do not establish cause to excuse the procedural default. See Hughes v. Idaho State Bd. of Corr., 800 F.2d 905, 909 (9th Cir. 1986) (an illiterate pro se petitioner's lack of legal assistance did not amount to cause to excuse a procedural default); Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988) (petitioner's reliance upon jailhouse lawyers did not constitute cause); see also Cornman v. Armontrout, 959 F.2d 727, 729 (8th Cir. 1992) (that “petitioner may possess below-average intelligence, have no formal legal training, or have filed the initial habeas petition pro se” is not enough to excuse procedural default); Bonilla v. Hurley, 370 F.3d 494 (6th Cir. 2004) (pro se status, ignorance of law and procedural requirements, limited access to prison library, and unfamiliarity with the English language insufficient to establish cause); Harris v. McAdory, 334 F.3d 665, 669 (7th Cir. 2003) (borderline IQ is not external to the defense and does not establish cause); Steele v. Young, 11 F.3d 1518, 1522 (10th Cir. 1993) (pro se petitioner and his deficiencies in reading and writing skills were not external factors constituting “cause” for procedural default).
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 v. Carrier, 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. United States, 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).
D. Petitioner's claims are procedurally defaulted without excuse
In his Reply, Petitioner states that Respondents have admitted to unspecified factual allegations and have not presented “defeating defense or argument” and concludes that he has therefore “demonstrated ‘prejudice'” (Doc. 32 at 2-3). Petitioner also asserts that “the government and defense attorneys' conduct, veil of ignorance, and malfeasance not only caused guilty plea acceptance but acted as an impossible obstacle and custom of unconstitutional gatekeeping” (Id. at 5). Petitioner appears also to argue that the Court was not able to rule on the Second Amended Petition when his “Cause of Action” docketed as a Motion to Amend Second Amended Petition (Doc. 15) was pending (Id. at 6-7).
Petitioner does not expressly argue that he is able to demonstrate cause and prejudice sufficient to excuse procedural default of his grounds for relief. Although the Second Amended Petition is not untimely, in the Second Amended Petition under the section addressing “Timeliness of Petition, ” Petitioner complains, without providing details or supporting evidence, that he has been affected by substantial restrictions because of the Covid-19 pandemic, “suffers from an inadvertent disability in his incarceration[, ]” and has been “significantly prevented” from accessing legal assistance, records and books he needed to “properly bring claims” (Doc. 9 at 15).
Petitioner fails to establish cause for the procedural default of his claims for federal habeas relief. Under Ninth Circuit case law, Petitioner's status as an inmate with limited legal resources does not constitute cause to excuse his procedural defaults. See Hughes, 800 F.2d at 909 (a pro se petitioner's lack of legal assistance did not amount to cause to excuse a procedural default); Tacho, 862 F.2d at 1381. While inadequacies concerning prison law libraries may in some situations constitute extraordinary circumstances, see Whalem/Hunt v. Early, 233 F.3d 1146 (9th Cir. 2000), Petitioner offers nothing to suggest that this limited access burdened his ability to present his claims in state court. Further, Petitioner has not demonstrated or established under the circumstances of his case that any objective factor external to his defense impeded his efforts to comply with the state's procedural rules.
Insofar as Petitioner's argument about his “Cause of Action” (Doc. 15), undersigned denied Petitioner's “Cause of Action” (Doc. 15) that the Clerk docketed as a Motion to Amend Second Amended Petition in an order dated September 15, 2021 (Doc. 39), shortly after Petitioner had filed his Reply in support of his Second Amended Petition on September 9, 2021 (Doc. 32). Petitioner's motion to further amend his Petition has been decided and has no bearing on cause and prejudice for Petitioner's procedural defaults.
Further, Respondents have not “admitted” Petitioner's factual allegations. Instead, they filed a Limited Answer addressing Petitioner's procedural default of his claims and the non-cognizability of two of Petitioner's claims (Doc. 22). This approach is in keeping with the Court's order filed on August 4, 2021, expressly permitting Respondents to file an answer “limited to relevant affirmative defenses, including, but not limited to, statute of limitations, procedural bar, or non-retroactivity” (Doc. 11 at 4). As the Court emphasized, “an answer that is limited to affirmative defenses on a particular claim does not waive any argument on the merits as that claim[]” (Id.). Accordingly, Respondents' filing of the Limited Answer cannot be construed as a concession to Petitioner's factual allegations or legal claims. Moreover, after filing their Limited Answer (Doc. 22), Respondents filed responsive pleadings emphasizing that they had not conceded the validity of Petitioner's claims when they filed the Limited Answer (Doc. 28 at 1) or responded to Petitioner's motion to amend (Doc. 46 at 1-2), as Petitioner had argued without any basis.
The transcript of Petitioner's December 13, 2018 change of plea hearing clearly demonstrates that Petitioner entered his guilty pleas voluntarily and knowingly (Doc. 22-1 at 164-194). Petitioner cogently advised the court that no one forced him to plead guilty or threatened him to get him to plead guilty (Id. at 182). Similarly, Petitioner specifically admitted to the factual bases for the three charges to which he pleaded guilty (Id. at 182- 185). Additionally, because Petitioner wished to plead to the charges of the indictment rather than accept a plea offer that would guarantee a much-reduced sentence, the superior court went to great pains to ascertain that Petitioner understood the consequences of his choice and was certain about his decision (Id. at 171-175). When the court asked Petitioner to explain to her why he wished to plead to the charges as indicted and reject a more favorable plea offer, Petitioner stated, “Because I want to take full responsibility of my actions and all the actions that's taken place within the situation. I want to be a man about these things, and I want to give it up to God and the Court” (Id. at 174). Petitioner's statements at the change of plea hearing were consistent with his hand-written “Notice of Change of Pleading” statement signed on December 1, 2018, in which Petitioner stated that “no one has forced me or otherwise made me to plead guilty, I do so of my own free will” and that he understood “the seriousness of the crime and consequences of my pleading guilty in the court of law” (Id. at 48). Petitioner cites to no record evidence establishing his claims that the prosecutor or his defense counsel forced him to take a guilty plea; review of the record identifies no such evidence.
Where, as here, a petitioner fails to establish cause, the Court need not consider whether the petitioner has shown actual prejudice resulting from the alleged constitutional violations. Smith v. Murray, 477 U.S. 527, 533 (1986). Accordingly, undersigned concludes that Petitioner has not satisfied the “cause and prejudice” exception to excuse his procedural defaults.
Additionally, Petitioner does not establish that failure to consider his claims would result in a fundamental miscarriage of justice. Although in Petitioner's statement regarding timeliness of the Second Amended Petition he summarily concludes that he had “offer[ed] enough to pass through the Schlup gateway[, ]” (Doc. 9 at 15), Petitioner does not “support his allegations of constitutional error with new reliable evidence, ” Schlup, 513 U.S. at 324, or “show it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence[, ]” McQuiggin, 569 U.S. at 399.
E. The Second Amended Petition is Procedurally Defaulted Without Excuse
For the reasons set forth above, all grounds in the Second Amended Petition are procedurally defaulted without excuse, and the Second Amended Petition should be dismissed with prejudice. Because undersigned finds that all of the Second Amended Petition grounds are unexhausted and procedurally defaulted without excuse and that the Second Amended Petition should be dismissed with prejudice on that basis, undersigned has not addressed Respondents' arguments that Petitioner's guilty plea waived all of the grounds in the Second Amended Petition.
IV. NON-COGNIZABLE CLAIMS
Respondents state that Petitioner challenges the grand jury proceedings in his case under Grounds 1 and 3 of the Second Amended Petition and conclude that because there “is no federal constitutional right to an indictment by a grand jury in state criminal proceedings” these claims are not cognizable on federal habeas corpus review (Doc. 22 at 18-19, emphasis in original). Respondents' position is correct.
In Ground 1, Petitioner alleges his Fourteenth Amendment guarantee of due process and equal protection was violated when his trial counsel was “totally absent or prevented from assisting the Petitioner at the initial appearance and grand jury proceeding” (Doc. 9 at 6). Petitioner similarly contends in Ground 3 that his constitutional protections were violated when he was “deprived of the right to . . . defend against the State's accusations, [and] the right to cross-examine witnesses and to call witnesses in [his] own behalf” at the grand jury proceedings (Doc. 9 at 12).
However, Petitioner's claims are not cognizable federal habeas claims because state defendants do not have a federal right to be prosecuted by indictment. See Francis v. Henderson, 425 U.S. 536, 545 n.1 (1976) (holding that “the Fifth Amendment's provision for presentment or indictment by grand jury has not been extended against the States”); Jeffries v. Blodgett, 5 F.3d 1180, 1188 (9th Cir. 1993) (an “[i]ndictment by grand jury is not part of the due process guarantees of the Fourteenth Amendment that apply to state criminal defendants”). Due process requires only that a defendant be given notice of the specific charge against them, and a chance to be heard in a trial of the issues raised by that charge. Cole v. Arkansas, 333 U.S. 196, 201 (1948). “The Sixth Amendment guarantees a criminal defendant the fundamental right to be informed of the nature and cause of the charges made against him so as to permit adequate preparation of a defense.” Gautt v. Lewis, 489 F.3d 993, 1002 (9th Cir. 2007).
Moreover, as is discussed above, even if Petitioner's Grounds 1 and 3 claims regarding the grand jury proceedings were cognizable in federal habeas corpus, he has procedurally defaulted these claims without excuse.
V. PETITIONER'S MOTION TO STAY STATE COURT PROCEEDINGS
The Court filed Petitioner's Motion for Stay of State Court Proceedings Pursuant to 28 U.S.C. § 2251(a)(1) on October 4, 2021 (Doc. 53). In this motion, Petitioner asks the Court to stay state court proceedings “with respect to matters involved in the habeas corpus proceeding thus far[] [w]ith respect to the collateral consequences attributed to the most current issue involved in the habeas corpus proceedings” and asks that the Court's order “stay and abate the State authorities; i.e., police, prosecutors, and like thereof or in reach; as they are extensions of the State Court proceedings[]” (Id. at 1-2).
In their response, Respondents note that Petitioner did not identify the state court proceedings he wished the Court to stay or provide reasons for the stay request (Doc. 57 at 1-2). Respondents further state that they take no position on Petitioner's motion to stay the state court proceedings (Id. at 2). In his Reply, Petitioner asserts it is self-evident that his motion pertains to his pending PCR proceedings in state court, but he does not provide any reasons why the Court should grant the motion other than it is authorized under § 2251(a)(1) to do so (Doc. 67 at 1-3).
Title 28 section 2251 addresses stay of state court proceedings by federal habeas corpus courts. 28 U.S.C. § 2251. Section 2251(a)(1) provides that in pending matters:
[a] justice or judge of the United States before whom a habeas corpus proceeding is pending, may, before final judgment or after final judgment of discharge, or pending appeal, stay any proceeding against the person
detained in any State court or by or under the authority of any State for any matter involved in the habeas corpus proceeding.28 U.S.C. § 2251(a)(1). Section 2251 is primarily applied in the context of stays of execution of capital defendants, but “allows for a stay of any proceeding, judicial or otherwise, relating to the subject matter of the habeas corpus petition.” Byrd v. Moore, 252 F.Supp.2d 293, 306 n.3 (W.D. N.C. 2003); Coleman v. California, No. C 09-5742 MHP (pr)., 2010 WL 695380, at *1 (N.D. Cal. Feb. 23, 2010). “Section 2251 does not mandate the entry of a stay, but dedicates the exercise of stay jurisdiction to the sound discretion of a federal court.” McFarland v. Scott, 512 U.S. 849, 858 (1994).
The statute does not supply a test by which a court may determine whether a stay of state proceedings is warranted. Coleman, 2010 WL 695380, at *1. In a case involving a motion to stay the execution of an allegedly incompetent capital defendant, the Ninth Circuit instructed that a petitioner seeking a stay under § 2251 must demonstrate substantial grounds on which relief might be granted. Vargas v. Lambert, 159 F.3d 1161, 1166 (9th Cir. 1998).
As is discussed above, Petitioner's grounds for relief in the Second Amended Petition are technically exhausted subject to implied procedural default. Because Petitioner has defaulted his federal claims in state court, he is not able to establish substantial grounds on which the Court may grant relief on his Second Amended Petition. Accordingly, it is recommended that the Court deny Petitioner's Motion for Stay of State Court Proceedings Pursuant to 28 U.S.C. § 2251(a)(1) (Doc. 53).
VI. THESE FEDERAL HABEAS PROCEEDINGS SHOULD NOT BE STAYED
Neither party has moved for a stay of this section 2254 habeas action. A stay may be available for a petitioner to return to state court to exhaust unexhausted federal claims under certain conditions. Rhines v. Weber, 544 U.S. 269, 277 (2005). However, Petitioner's claims here are all procedurally defaulted. Coleman, 501 U.S. at 732 (“A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no remedies any longer ‘available' to him.”). In any event, there is not good cause for a stay. The Supreme Court has instructed that a stay of a federal habeas action to return to state court to exhaust unexhausted claims:
should be available only in limited circumstances. Because granting a stay effectively excuses a petitioner's failure to present his claims first to the state courts, stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court. Moreover, even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless. Cf. 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State”).Rhines, 544 U.S. at 277. A request for a stay of Petitioner's instant habeas proceeding would be unavailing even if any of his claims were unexhausted because the record does not support a finding that there was good cause for Petitioner's failure to exhaust his habeas claims in state court.
The Ninth Circuit instructs that good cause supporting the grant of a motion for stay and abeyance of a federal habeas petition “turns on whether the petitioner can set forth a reasonable excuse, supported by sufficient evidence, to justify that failure.” Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014). Here, the record demonstrates that Petitioner could have asserted each of his grounds for relief in his July 2019 PCR petition. In Ground 1, Petitioner complains he was denied assistance of counsel at his initial appearance and at the grand jury proceedings (Doc. 9 at 6). Petitioner's Ground 2 claim alleges IAC by trial counsel prior to and at the time of his plea and sentencing (Id. at 11). In Ground 3, Petitioner again challenges the grand jury proceeding (Id. at 12). Petitioner claims in Ground 4 that his convictions lacked evidentiary support and refers, without evidentiary support, to statements attributed to the victims and related alleged exculpatory evidence (Id. at 13).
Each of Petitioner's claims challenge aspects of his case that occurred well before Petitioner filed his July 19, 2019 pro per PCR petition. Petitioner does not argue that the claims he asserts in the Second Amended Petition are based on evidence that was discovered after he filed his July 2019 PCR action. Under these circumstances, undersigned concludes that the record before the Court does not demonstrate that Petitioner would be able to assert a “reasonable excuse, supported by sufficient evidence, to justify” his failure to exhaust his claims in state court prior to filing his present § 2254 action.
VII. CONCLUSION
Based on the above analysis, the undersigned finds that: (1) the claims of the Second Amended Petition (Doc. 9) are procedurally defaulted without excuse; and (2) Petitioner has failed to establish he is entitled to relief on his Motion for Stay of State Court Proceedings Pursuant to 28 U.S.C. § 2251(a)(1) (Doc. 53). Undersigned therefore recommends that the Court deny Petitioner's Motion for Stay of State Court Proceedings Pursuant to 28 U.S.C. § 2251(a)(1) (Doc. 53) and dismiss with prejudice Petitioner's Second Amended Petition (Doc. 9). Additionally, all pending motions should also be denied. 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. Accordingly, to the extent the District Judge adopts this Report and Recommendation regarding the Second Amended Petition, a certificate of appealability should be denied.
IT IS THEREFORE RECOMMENDED that the Second Amended Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 9) be dismissed with prejudice.
IT IS FURTHER RECOMMENDED that Petitioner's Motion for Stay of State Court Proceedings Pursuant to 28 U.S.C. § 2251(a)(1) (Doc. 53) be denied.
IT IS FURTHER RECOMMENDED that all other outstanding motions be denied.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability be denied because dismissal of the Second Amended Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty (Doc. 9) is justified by a plain procedural bar and reasonable jurists would not find the procedural ruling debatable.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) 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 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 recommendation. See Fed. R. Civ. P. 72.