Opinion
CV-19-0047-TUC-JAS (BGM)
11-05-2021
Manuel Jesus Pesqueira, Petitioner, v. David Shinn, et al. Respondents.
REPORT AND RECOMMENDATION
HONORABLE BRUCE G. MACDONALD UNITED STATES MAGISTRATE JUDGE
Currently pending before the Court is Petitioner Manuel Jesus Pesqueira's pro se Amended Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (“Amended Petition”) (Doc. 8). Respondents have filed an Answer to Petition for Writ of Habeas Corpus (“Answer”) (Doc. 21), and Petitioner replied (Doc. 23). The Amended Petition (Doc. 8) is ripe for adjudication.
Petitioner's reply is styled as a Response to Answer to Petition of Habeas Corpus With Cross Appeal With Evidentiary Hearing Under Sua Sponte, Inter Alia Requested.
Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter was referred to Magistrate Judge Macdonald for Report and Recommendation. The Magistrate Judge recommends that the District Court deny the Amended Petition (Doc. 8). . . . . . . . . . . . .
Rules of Practice of the United States District Court for the District of Arizona.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Initial Charge, Trial, and Sentencing
The Arizona Court of Appeals stated the facts as follows:
As these state court findings are entitled to a presumption of correctness and Petitioner has failed to show by clear and convincing evidence that the findings are erroneous, the Court hereby adopts these factual findings. 28 U.S.C. § 2254(e)(1); Schriro v. Landrigan, 550 U.S. 465, 473-74, 127 S.Ct. 1933, 1940, 167 L.Ed.2d 836 (2007); Wainwright v. Witt, 469 U.S. 412, 426, 105 S.Ct. 844, 853, 83 L.Ed.2d 841 (1985); Cf. Rose v. Lundy, 455 U.S. 509, 519, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982).
L.C. and his roommate, R.G., were asleep in a bedroom when they awoke to a “strange noise.” Shortly thereafter, Pesqueira entered the bedroom, pointed a gun at the men, and said he wanted their “money, belongings, [and] drugs.” Pesqueira took money from R.G.'s wallet and a jar of change before leaving the bedroom. He then returned with a machete and again demanded money and drugs. He took L.C.'s and R.G.'s cellular telephones and left the room. Another man, Stephen Williams, then entered the bedroom with a gun, did not say anything, and shot L.C. in the head. Pesqueira and Williams then left the apartment.
L.C. was taken to the University Medical Center (UMC) where doctors performed surgery. But L.C. remained unconscious for the week he stayed at UMC and his estimated chances of recovery were “[v]ery slim, ” approximately eight percent. L.C.'s family chose to move him to Mexico and, during the ambulance ride from UMC to Mexico, L.C. died.State v. Pesqueira, 235 Ariz. 470, 473, 333 P.3d 797, 800 (Ariz.Ct.App. 2014). On August II, 2011, Petitioner was charged with one (1) count of armed robbery, one (1) count of aggravated robbery, two (2) counts of kidnapping, two (2) counts of aggravated assault with a deadly weapon, and one (1) count of first degree murder. Answer (Doc. 21), Charging Document, State v. Pesqueira, No. CR20112669-001 (Pima Cnty. Super. Ct. Aug. 11, 2011) (Exh. “A”) (Doc. 21-1). After a jury trial, Petitioner was found guilty on all counts. Pesqueira, 235 Ariz. at 473, 333 P.3d at 800. “The trial court sentenced him to a combination of consecutive and concurrent prison terms on counts one through six, totaling thirty years[;] [i]t also sentenced him to life in prison without the possibility of release for twenty-five years for the first degree murder charge which was to run concurrently with the sentences for the other six charges.” Id.; see also Answer (Doc. 21),
Sentencing Tr. 3/13/2013, State v. Pesqueira, No. CR20112669 (Pima Cnty. Super. Ct.) (Exh. “N”) (Doc. 21-8).
B. Direct Appeal
On March 27, 2013, Petitioner filed a Notice of Appeal. Answer (Doc. 21), State v. Pesqueira, No. 2 CA-CR 2013-0134, Docket (Ariz.Ct.App. Mar. 27, 2013) (Exh. “O”) (Doc. 21-8). On March 11, 2014, Petitioner filed his opening brief, alleging four (4) grounds for relief. See Answer (Doc. 21), Appellant's Opening Br., State v. Pesqueira, No. 2 CA-CR 2013-0134 (Ariz.Ct.App. Mar. 11, 2014) (Exh. “P”) (Doc. 21-8). First, Petitioner asserted that the trial court erred when it allowed Dr. Hess to testify regarding L.C.'s cause of death, alleging that Dr. Hess's opinion impermissibly relied on an unreliable autopsy report from Mexico, thereby violating Rule 703, Arizona Rules of Criminal Procedure, as well as Petitioner's rights under the Confrontation Clause. Id., Exh. “P” at 111-19. Next, Petitioner urged that there was insufficient evidence regarding the cause of L.C.'s death. Id., Exh. “P” at 119-24. Petitioner argued that it was not the gunshot to L.C.'s head that caused the latter's death, but rather L.C.'s family's decision to move him from UMC to Mexico for further treatment. Id., Exh. “P” at 122-24. Petitioner posited that this decision was a superseding event. Id. at 124. Third, Petitioner maintained that the trial court erred because the dangerous nature sentencing statute was not charged in the superseding indictment, his sentences were illegally enhanced on Counts One through Six. Id., Exh. “P” at 124-26. Finally, Petitioner asserted that the imposition of a criminal restitution order before his probation or sentence had expired constituted an illegal sentence. Answer (Doc. 21), Appellant's Opening Br. (Exh. “P”) (Doc. 21-8) at 126-27.
Page citations refer to the CM/ECF page number for ease of reference.
On August 28, 2014, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences but vacated his Criminal Restitution Order. See State v. Pesqueira, 235 Ariz. 470, 333 P.3d 797 (Ariz.Ct.App. 2014). The appellate court found that Petitioner had waived his right to review the autopsy reports alleged noncompliance with Rule 703, Arizona Rules of Criminal Procedure, because he failed to raise it to the trial court. Id. at 473, 333 P.3d at 800. As such, the court reviewed this issue for fundamental, prejudicial error. Id. The appellate court found that “[t]he autopsy report . . . ha[d] ‘sufficient indicia of reliability' to have properly formed the basis for Hess's opinion under Rule 703.” Id. At 474, 333 P.3d at 801 (citations omitted). The appellate court further observed that “under Rule 703 [the Arizona] supreme court reviews whether the expert's reliance on the inadmissible data was reasonable, not whether the data itself was reliable.” Id. (citations omitted). The appellate court held that Petitioner “failed to show that Hess's reliance on the autopsy report violated Rule 703.” Pesqueira, 235 Ariz. at 475, 333 P.3d at 802. The appellate court also opined that “[t]he jury was free to weigh the credibility of Hess's opinion based on what it heard about the autopsy report . . . [and therefore, found] no error, fundamental or otherwise[.]” Id. (citations omitted). Regarding Petitioner's Confrontation Clause argument, the appellate court found that “[t]he autopsy report . . . was not offered to prove the truth of its contents, but only to show the basis for Hess's opinion[, ] [and] [a]ccordingly, the testimony did not violate Pesqueira's confrontation rights.” Id. (citations omitted). The appellate court next considered the trial court's denial of Petitioner's motion for a judgment of acquittal made pursuant to Rule 20, Arizona Rules of Criminal Procedure. Id. at 476-77, 333 P.3d at 803-04. The appellate court determined that “[u]nder the[] circumstances, a jury reasonably could conclude beyond a reasonable doubt that L.C.'s death was caused directly by being shot in the head by Williams[, ] [and] [a]dditionally, it could have concluded L.C.'s death, although not immediate, was a natural and foreseeable consequence of William's act.” Id. at 477, 333 P.3d at 804. “Because sufficient evidence supported the jury's verdict, [the appellate court found that] the trial court did not err in denying Pesqueira's Rule 20 motion. Pesqueira, 235 Ariz. at 477, 333 P.3d at 804. The appellate court found that Petitioner did not object below regarding the enhancement of his sentences despite the State's failure to properly allege that they were of a dangerous nature prior to trial. Id. As such, the appellate court reviewed for fundamental, prejudicial error. Id. at 478, 333 P.3d at 805 (citations omitted). The appellate court could not find “any authority that the state [wa]s required to re-file allegations of dangerousness when it re-file[d] an identical indictment under the same cause number in a continuing criminal case[, ]” and observed that Petitioner “ha[d] not explained why, under the[] circumstances, he was in any way misled, surprised, or deceived by the court's enhancement of his sentence based on the jury's finding of dangerousness.” Id. (citations omitted). Accordingly, the appellate court held that no error occurred. Id. Finally, the appellate court vacated Petitioner's Criminal Restitution Order finding that it was not authorized by statute. Pesqueira, 235 Ariz. at 479, 333 P.3d at 806.
On March 17, 2015, the Arizona Supreme Court summarily denied Petitioner's Petition for Review. Answer (Doc. 21), State v. Pesqueira, No. CR-14-0326-PR, Mem. (Ariz. Mar. 17, 2015) (Exh. “V”) (Doc. 21-9). On April 8, 2015, the Arizona Court of Appeals issued its mandate. Answer (Doc. 21), State v. Pesqueira, No. 2 CA-CR 2013-0134, Mandate (Ariz.Ct.App. Apr. 8, 2015) (Exh. “W”) (Doc. 21-9).
C. Post-Conviction Relief Proceeding
On April 10, 2015, Petitioner filed his Notice of Post-Conviction Relief (“PCR”). Answer (Doc. 21), Petr.'s Not. of PCR, State v. Pesqueira, No. CR2011-2669-001 (Pima Cnty. Super. Ct. Apr. 10, 2015) (Exh. “X”) (Doc. 21-9). On October 23, 2015, The Rule 32 court assigned counsel and outlined a briefing schedule for filing of the PCR petition. Answer (Doc. 21), Notice, State v. Pesqueira, No. CR2011-2669-001 (Pima Cnty. Super. Ct. Oct. 23, 2015) (Exh. “Y”) (Doc. 21-9). On September 27, 2016, following an extension of time, the Rule 32 court acknowledged receipt of a PCR counsel's Notice pursuant to Montgomery v. Sheldon (I), in which counsel stated that there were no viable issues appropriate for Rule 32 relief. See Answer (Doc. 21), State v. Pesqueira, No. CR2011-2669-001, Order to Extend Time (Pima Cnty. Super. Ct. Sept. 27, 2016) (Exh. “AA”) (Doc. 21-9). The court granted Petitioner additional time to file a pro se petition. Id.
On Petitioner's notice, his name is misspelled as “Pesqueria.”
Montgomery v. Sheldon (I), 181 Ariz. 256, 889 P.2d 614 (1995).
The Arizona Supreme Court has held that in Rule 32 proceedings, where counsel concludes that the proceeding has no merit, “a pleading defendant has a right under Ariz. Const. art. 2 § 24 to file a pro se PCR petition.” Montgomery (I), 181 Ariz. at 260, 889 P.2d at 618. Subsequently, the Arizona Supreme Court affirmed this rule and reiterated:
If, after conscientiously searching the record for error, appointed counsel in a PCR proceeding finds no tenable issue and cannot proceed, the defendant is entitled to file a pro se PCR. State v. Smith, 184 Ariz. 456, 459, 910 P.2d 1, 4 (1996).
1. Pro se PCR Petition
On August 25, 2017, after several extensions of time, Petitioner signed his pro se Petition for PCR. See Answer (Doc. 21), Petr.'s Pet. for PCR, State v. Pesqueira, No. CR2011-2669-001 (Pima Cnty. Super. Ct. Aug. 31, 2017) (Exh. “FF”) (Doc. 21-9). Petitioner checked boxes alleging ineffective assistance of counsel; “[t]he unconstitutional suppression of evidence by the state”; “[t]he unconstitutional use by the state of perjured testimony”; newly discovered evidence; “[t]he use by the state in determining sentence of a prior conviction obtained in violation of the United States or Arizona constitutions”; and the imposition of an illegal sentence. Id. at 117. Petitioner did not provide any additional facts or argument in support of the checked boxes, beyond indicating that “documents from co-defendant Williams [sic] remanded court proceedings . . . [would] lucidly display disparate sentencing by disregarding the Equal Protection of laws.” Id. at 117-19.
In response, the State moved for the Rule 32 court to return Defendant's PCR petition for correction of its deficiencies, while tolling the State's time to respond. Answer (Doc. 21), State's Mot. for Ct. to Return Def.'s Pet. for PCR to Satisfy Requirements of Rule 32.5, State v. Pesqueira, No. CR20112669-001 (Pima Cnty. Super. Ct. Sept. 28, 2017) (Exh. “GG”) (Doc. 21-9).
2. Rule 32 Court Order
On October 11, 2017, the Rule 32 court issued its order summarily dismissing Petitioner's PCR petition and denying the State's request to return it to Petitioner as non-conforming. Answer (Doc. 21), State v. Pesqueira, No. CR20112669-001, Ruling-In Chambers Re: Petition for PCR (Pima Cnty. Super. Ct. Oct. 11, 2017) (Exh. “HH”) (Doc. 21-9). The Rule 32 court found that “returning Petitioner's Petition as non-conforming would [not] serve the interests of justice.” Id. at 125. The Rule 32 court reported that it had “reviewed the files, the history and posture of both Defendants . . . [and found] [n]othing in the co-defendant's case indicate[d] new material facts that would be of assistance to the Petitioner in this case.” Id. at 126. After outlining the facts of the case and defenses asserted at trial, the Rule 32 court further held that “there [wa]s nothing material in the co-defendant's file or possession that could change the determination of Petitioner's guilt or his sentence.” Id. at 127. The Rule 32 court held that Petitioner had failed to state a colorable claim and summarily dismissed the petition. Id.
3. PCR Petition for Review
On November 6, 2017, Petitioner sought an extension of time to file his Petition for Review. Answer (Doc. 21), Petr.'s Mot. to Extend Time for Filing Pet. for Review, State v. Pesqueira, No. CR20112669-001 (Pima Cnty. Super. Ct. Nov. 13, 2017) (Exh. “II”) (Doc. 21-9). On December 17, 2017, Petitioner filed a motion seeking production of documents and transcripts that were not part of the appellate record. Answer (Doc. 21) Petr.'s Mot. to Provide Additional Docs. and Transcripts, State v. Pesqueira, No. CR20112669-001 (Pima Cnty. Super. Ct. Dec. 22, 2017) (Exh. “JJ”). On January 4, 2018, the Rule 32 court granted Petitioner's request for additional time but denied his request for various documents, except for the transcript of co-defendant's sentencing in CR20133225. Answer (Doc. 21), State v. Pesqueira, No. CR20112669-001, Ruling-In Chambers (Pima Cnty Super. Ct. Jan. 4, 2018) (Exh. “KK”).
On February 16, 2018, Petitioner again sought an extension of time to file his Petition for Review. Answer (Doc. 21), Petr.'s Mot. to Extend Time for Filing Pet. for Review, State v. Pesqueira, No. CR20112669-001 (Pima Cnty. Super. Ct. Feb. 16, 2018) (Exh. “LL”) (Doc. 21-9). On the same date, the Rule 32 court reminded Petitioner of the “contents of the rule for filing a Petition for Review” and granted a final sixty (60) day extension of time. Answer (Doc. 21), State v. Pesqueira, No. CR20112669-001, Ruling- In Chambers Re: Mot. to Extend Time (Pima Cnty. Super. Ct. Feb. 22, 2018) (Exh. “MM”) (Doc. 21-9). On April 20, 2018, Petitioner sought yet another extension of time. Answer (Doc. 21), Petr.'s Mot. to Extend Time for Filing Pet. for Review, State v. Pesqueira, No. CR20112669-001 (Pima Cnty. Super. Ct. Apr. 20, 2018) (Exh. “NN”) (Doc. 21-9). On May 17, 2018, the Rule 32 court reminded Petitioner of its previous admonition and denied his request for additional time. Answer (Doc. 21), State v. Pesqueira, No. CR20112669-001, Ruling-In Chambers Re: Mot. to Extend Time for Filing Pet. for Review (Pima Cnty. Super. Ct. May 17, 2018) (Exh. “OO”) (Doc. 21-9).
This motion was received by the Pima County Clerk of Court on February 22, 2018.
The motion was received by the Pima County Clerk of Court on May 1, 2018.
On May 25, 2018, Petitioner filed a special action document with the Arizona Court of Appeals. Answer (Doc. 21), Petr.'s Mot. for Special Action, State v. Pesqueira, No. 2CA-CR 18-0149-PR (Ariz.Ct.App. May 25, 2018) (Exh. “QQ”) (Doc. 21-10). Petitioner sought review of the lower court's denial of his PCR petition alleging ineffective assistance of counsel. Id., Exh. “QQ” at 14. Petitioner argued that “the autopsy from Mexico was incomplete” and that Dr. Hess “did not know anything about the doctor who performed the autopsy[.]” Id. Petitioner also alleged a violation of his due process rights because there was no “effort to properly obtain or thoroughly investigate [the] Medical Examiner who performed autopsy in Mexico.” Id., Exh. “QQ” at 15. Petitioner asserted that “the record [wa]s clearly incomplete and insufficient to properly determine the cause of Mr. [LC's] death.” Id., Exh. “QQ” at 16. Petitioner further argued that LC's family's decision to move him to Mexico was a superseding cause of his death which warranted further investigation by trial counsel, and this alleged failure was ineffective assistance. Id., Exh. “QQ” at 19- 23. The Arizona Court of Appeals treated Petitioner's document as a Petition for Review. Answer (Doc. 21), State v. Pesqueira, No. 2 CA-CR 2018-0149-PR, Order (Ariz.Ct.App. May 30, 2018) (Exh. “RR”) (Doc. 21-10). Because Petitioner had failed to attach a copy of the Rule 32 court's ruling on his PCR petition, the appellate court directed him to submit the same on or before June 29, 2018. Id. The court further notified Petitioner that his failure to comply would result in dismissal of his Petition for Review. Id. On July 17, 2018, the Arizona Court of Appeals recognized Petitioner's failure to comply with its directive and dismissed his petition for review. Answer (Doc. 21), State v. Pesqueira, No. 2 CA-CR 2018-0149-PR, Order (Ariz.Ct.App. July 17, 2018) (Exh. “SS”) (Doc. 21-10).
On August 6, 2018, Petitioner filed a motion with the Arizona Court of Appeals seeking an order striking its previous order dismissing his petition for review. Answer (Doc. 21), Petr.'s Mot. to Appeal Recent Ct. Ruling, State v. Pesqueira, No. 2CA-CR 18-0149-PR (Ariz.Ct.App. Aug. 6, 2018) (Exh. “TT”) (Doc. 21-10). Petitioner asserted that he had complied with the court's previous directives in a timely fashion and dismissal was therefore inappropriate. Id. On August 10, 2018, the court of appeals considered Petitioner's motion as one for reconsideration and reiterated that he had not provided it with the lower court's PCR ruling as directed. Answer (Doc. 21), State v. Pesqueira, No. 2 CA-CR 2018-0149-PR, Order (Ariz.Ct.App. Aug. 10, 2018) (Exh. “UU”) (Doc. 21-10). As such, the appellate court denied Petitioner's motion. Id. On August 20, 2018, Petitioner filed a second motion to inform the appellate court that he had complied with its previous orders. Answer (Doc. 21), Petr.'s Mot. to Inform Pet. Has Complied to All Ct. Orders, State v. Pesqueira, No. 2CA-CR 18-0149-PR (Ariz.Ct.App. Aug. 20, 2018) (Exh. “VV”) (Doc. 21-10). On August 21, 2018, the Arizona Court of Appeals acknowledged receipt of Petitioner's motion but indicated that “the petition for review was not timely filed within the thirty (30) day time limit in accordance with Ariz. R. Crim. P. 32.9, ” and therefore denied the motion as moot. Answer (Doc. 21), State v. Pesqueira, No. 2 CA-CR 2018-0149-PR, Order (Ariz.Ct.App. Aug. 21, 2018) (Exh. “WW”) (Doc. 21-10).
On October 1, 2018, Petitioner filed a motion seeking removal of the Honorable Howard Fell as presiding judge, as well as the Honorable Richard Fields. Answer (Doc. 21), Petr.'s Motion, State v. Pesqueira, No. 2CA-CR 18-0149-PR (Ariz.Ct.App. Oct. 1, 2018) (Exh. “XX”) (Doc. 21-10). Petitioner observed that “this appeal dramatically illustrates that accused cannot have fair opportunity with Judge Fell or with Judge Fields nor Prosecutor: Jennifer Dent.” Id., Exh. “XX” at 54. On October 3, 2018, the Arizona Court of Appeals denied the motion and the following day issued its mandate. Answer (Doc. 21), State v. Pesqueira, No. 2 CA-CR 2018-0149-PR, Order (Ariz.Ct.App. Oct. 3, 2018) (Exh. “YY”) (Doc. 21-10) & Mandate (Ariz.Ct.App. Oct. 4, 2018) (Exh. “ZZ”) (Doc. 21-10).
D. The Instant Habeas Proceeding
On January 28, 2019, Petitioner's improperly filed Motion of Notice of New Petition for Review (Doc. 2) was construed by the Ninth Circuit Court of Appeals as a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 and transferred to this Court. See Order 1/28/2019 (Doc. 1). On February 1, 2019, the Hon. James A. Soto issued his Order directing Petitioner to pay the filing fee and giving leave to amend. Order 2/1/2019 (Doc. 4). On February 25, 2019, Petitioner filed his Amended Petition Pursuant to 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (“Amended Petition”) (Doc. 8).
Petitioner did not file his Petition on a court approved form and failed to name a proper respondent.
Petitioner's Amended Petition (Doc. 8) asserts six (6) grounds for relief. First, Petitioner asserts that the State's witnesses “committed perjury when they stated they do not know the Defendant Mr. Williams and his girlfriend/wife[.]” Amended Petition (Doc. 8-4) at 19. Second, Petitioner alleges that “County Attorney Barbara La Wall committed written perjury and defied court order [sic][.]” Id. at 21. Third, Petitioner asserts that the State violated the prohibition against double jeopardy. Id. at 33. Petitioner maintains that the “court used priors for enhancement and aggravating purposes . . . [in violation of] [t]he 5th Amendment prohibit[ion] [against] multiple punishments for the same offense.” Id. Fourth, Petitioner alleges that the trial court's jury instruction “coerced jury [sic] to come to a unanimous decision.” Id. at 34. Fifth, Petitioner asserts that he suffered prejudice “[f]rom Instruction No. One to No. Seven[, ] the judge gave [the] exact same, i[]dentical instruction which clearly undermine[d] Mr. Pesqueira's chance at any leeway . . . [and] greatly limited the jury's decision to decide other than to find the Petitioner guilty.” Amended Petition (Doc. 8-4) at 36. Finally, Petitioner alleges that there was an abuse of discretion and prejudice because “Petitioner did not want to sign [a] stipulation, but the court chose to ignore his request.” Id. at 40. Petitioner contends that “it's clear [the] court had already planned to deny [P]etitioner his issues raised on appeal.” Id.
On June 10, 2019, Respondents filed their Answer (Doc. 21), and Petitioner replied (Doc. 23).
II. STANDARD OF REVIEW
A. In General
The federal courts shall “entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws of treaties of the United States.” 28 U.S.C. § 2254(a) (emphasis added). Moreover, a petition for habeas corpus by a person in state custody:
shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim - (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d); see also Cullen v. Pinholster, 563 U.S. 170, 181, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011). Correcting errors of state law is not the province of federal habeas corpus relief. Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991). Ultimately, “[t]he statute's design is to ‘further the principles of comity, finality, and federalism.'” Panetti v. Quarterman, 551 U.S. 930, 945, 127 S.Ct. 2842, 2854, 168 L.Ed.2d 662 (2007) (quoting Miller-El v. Cockrell, 537 U.S. 322, 337, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)). Furthermore, this standard is difficult to meet and highly deferential “for evaluating state-court rulings, [and] . . . demands that state-court decisions be given the benefit of the doubt.” Pinholster, 563 U.S. at 181, 131 S.Ct. at 1398 (citations and internal quotation marks omitted).
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 110 Stat. 1214, mandates the standards for federal habeas review. See 28 U.S.C. § 2254. The “AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court.” Burt v. Titlow, 571 U.S. 12, 19, 134 S.Ct. 10, 16, 187 L.Ed.2d 348 (2013). Federal courts reviewing a petition for habeas corpus must “presume the correctness of state courts' factual findings unless applicants rebut this presumption with ‘clear and convincing evidence.'” Schriro v. Landrigan, 550 U.S. 465, 473-74, 127 S.Ct. 1933, 1940, 167 L.Ed.2d 836 (2007) (citing 28 U.S.C. § 2254(e)(1)). Moreover, on habeas review, the federal courts must consider whether the state court's determination was unreasonable, not merely incorrect. Id., 550 U.S. at 473, 127 S.Ct. at 1939; Gulbrandson v. Ryan, 738 F.3d 976, 987 (9th Cir. 2013). Such a determination is unreasonable where a state court properly identifies the governing legal principles delineated by the Supreme Court, but when the court applies the principles to the facts before it, arrives at a different result. See Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011); Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); see also Casey v. Moore, 386 F.3d 896, 905 (9th Cir. 2004). “AEDPA requires ‘a state prisoner [to] show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error . . . beyond any possibility for fairminded disagreement.'” Burt, 134 S.Ct. at 10 (quoting Harrington, 562 U.S. at 103, 131 S.Ct. at 786-87) (alterations in original).
B. Exhaustion of State Remedies
Prior to application for a writ of habeas corpus, a person in state custody must exhaust all of the remedies available in the State courts. 28 U.S.C. § 2254(b)(1)(A). This “provides a simple and clear instruction to potential litigants: before you bring any claims to federal court, be sure that you first have taken each one to state court.” Rose v. Lundy, 455 U.S. 509, 520, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982). As such, the exhaustion doctrine gives the State “the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004) (internal quotations omitted). Moreover, “[t]he exhaustion doctrine is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings.” Rose, 455 U.S. at 518, 102 S.Ct. at 1203 (internal citations omitted). This upholds the doctrine of comity which “teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.” Id. (quoting Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 590, 94 L.Ed. 761 (1950)).
Section 2254(c) provides that claims “shall not be deemed . . . exhausted” so long as the applicant “has the right under the law of the State to raise, by any available procedure the question presented.” 28 U.S.C. § 2254(c). “[O]nce the federal claim has been fairly presented to the state courts, the exhaustion requirement is satisfied.” Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). The fair presentation requirement mandates that a state prisoner must alert the state court “to the presence of a federal claim” in his petition, simply labeling a claim “federal” or expecting the state court to read beyond the four corners of the petition is insufficient. Baldwin v. Reese, 541 U.S. 27, 31-33, 124 S.Ct. 1347, 1351, 158 L.Ed.2d 64 (2004) (rejecting petitioner's assertion that his claim had been “fairly presented” because his brief in the state appeals court did not indicate that “he was complaining about a violation of federal law” and finding the justices' opportunity to read a lower court decision addressing the federal claims insufficient to support fair presentation); Hiivala v. Wood, 195 F.3d 1098 (9th Cir. 1999) (holding that petitioner failed to exhaust federal due process issue in state court because petitioner presented claim in state court only on state grounds). Furthermore, in order to “fairly present” one's claims, the prisoner must do so “in each appropriate state court.” Baldwin, 541 U.S. at 29, 124 S.Ct. at 1349. “Generally, a petitioner satisfies the exhaustion requirement if he properly pursues a claim (1) throughout the entire direct appellate process of the state, or (2) throughout one entire judicial postconviction process available in the state.” Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004) (quoting Liebman & Hertz, Federal Habeas Corpus Practice and Procedure, § 23.3b (9th ed. 1998)).
In Arizona, however, for non-capital cases “review need not be sought before the Arizona Supreme Court in order to exhaust state remedies.” Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); see also Crowell v. Knowles, 483 F.Supp.2d 925 (D. Ariz. 2007); Moreno v. Gonzalez, 192 Ariz. 131, 962 P.2d 205 (1998). Additionally, the Supreme Court has further interpreted § 2254(c) to recognize that once the state courts have ruled upon a claim, it is not necessary for an applicant to seek collateral relief for the same issues already decided upon direct review. Castille v. Peoples, 489 U.S. 346, 350, 109 S.Ct. 1056, 1060, 103 L.Ed.2d 380 (1989).
C. Procedural Default
1. In General
“A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no state remedies any longer ‘available' to him.” Coleman v. Thompson, 501 U.S. 722, 732, 111 S.Ct. 2546, 2555, 115 L.Ed.2d 650 (1991). The Ninth Circuit Court of Appeals explained the difference between exhaustion and procedural default as follows:
The exhaustion doctrine applies when the state court has never been presented with an opportunity to consider a petitioner's claims and that opportunity may still be available to the petitioner under state law. In contrast, the procedural default rule barring consideration of a federal claim applies only when a state court has been presented with the federal claim, but declined to reach the issue for procedural reasons, or if it is clear that the state court would hold the claim procedurally barred. Franklin v. Johnson, 290 F.3d 1223, 1230 (9th Cir. 2002) (internal quotation marks and citations omitted). Thus, in some circumstances, a petitioner's failure to exhaust a federal claim in state court may cause a procedural default. See Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002) (“A claim is procedurally defaulted ‘if the petitioner failed to exhaust state remedies 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.'”) (quoting Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)).Cassett v. Stewart, 406 F.3d 614, 621 n. 5 (9th Cir. 2005).
Thus, a prisoner's habeas petition may be precluded from federal review due to procedural default in two ways. First, where a “petitioner failed to exhaust state remedies 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, 111 S.Ct. at 2557 n.1 (citations omitted). In this circumstance, the federal court “must consider whether the claim could be pursued by any presently available state remedy.” Cassett, 406 F.3d at 621 n.6 (quotations and citations omitted) (emphasis in original). Second, where the petitioner presented his claims to the state court, which denied relief based “on a state law ground that is independent of the federal question and adequate to support the judgment.” Coleman, 501 U.S. at 728, 111 S.Ct. at 2554. Federal courts are prohibited from review in such cases because they have “no power to review a state law determination that is sufficient to support the judgment, [because] resolution of any independent federal ground for the decision could not affect the judgment and would therefore be advisory.” Id. This is true whether the state law basis is substantive or procedural. Id. (citations omitted).
In Arizona, a petitioner's claim may be procedurally defaulted where he has waived his right to present his claim to the state court “at trial, on appeal or in any previous collateral proceeding.” Ariz. R. Crim. P. 32.2(a)(3) (2018). “If an asserted claim is of sufficient constitutional magnitude, the state must show that the defendant ‘knowingly, voluntarily and intelligently' waived the claim.” Id., 2002 cmt. Neither Rule 32.2. nor the Arizona Supreme Court has defined claims of “sufficient constitutional magnitude” requiring personal knowledge before waiver. See id.; see also Stewart v. Smith, 202 Ariz. 446, 46 P.3d 1067 (2002). The Ninth Circuit Court of Appeals recognized that this assessment “often involves a fact-intensive inquiry” and the “Arizona state courts are better suited to make these determinations.” Cassett, 406 F.3d at 622.
2. Overcoming a Procedural Bar
Where a habeas petitioner's claims have been procedurally defaulted, a petitioner must show cause and actual prejudice to overcome the bar on federal review. Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068, 103 L.Ed.2d 334 (1989) (holding that failure to raise claims in state appellate proceeding barred federal habeas review unless petitioner demonstrated cause and prejudice); see also Smith v. Murray, 477 U.S. 527, 534, 106 S.Ct. 2661, 2666, 91 L.Ed.2d 434 (1986) (recognizing “that a federal habeas court must evaluate appellate defaults under the same standards that apply when a defendant fails to preserve a claim at trial.”). “[T]he existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986); see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally defaulting his claims of ineffective assistance of counsel, [as such] there is no basis on which to address the merits of his claims.”). Actual prejudice requires a habeas petitioner to “show not merely that the errors . . . created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Murray, 477 U.S. at 494, 106 S.Ct. at 2648 (emphasis in original) (internal quotations omitted). Without a showing of both cause and prejudice, a habeas petitioner cannot overcome the procedural default and gain review by the federal courts. Id., 106 S.Ct. at 2649.
The Supreme Court has recognized, however, that “the cause and prejudice standard will be met in those cases where review of a state prisoner's claim is necessary to correct ‘a fundamental miscarriage of justice.'” Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (quoting Engle v. Isaac, 456 U.S. 107, 135, 102 S.Ct. 1558, 1572-73, 71 L.Ed.2d 783 (1982)). “The fundamental miscarriage of justice exception is available ‘only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence.'” Herrara v. Collins, 506 U.S. 390, 404, 113 S. Ct. 853, 862, 122 L.Ed.2d 203 (1993) (emphasis in original) (quoting Kuhlmann v. Wilson, 477 U.S. 436, 454, 106 S.Ct. 2616, 2627, 91 L.Ed.2d 364 (1986)). Thus, “‘actual innocence' is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.” Herrara, 506 U.S. at 404, 113 S.Ct. at 862. Further, to demonstrate a fundamental miscarriage of justice, a habeas petitioner must “establish by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found [him] guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B).
III. STATUTE OF LIMITATIONS
A. Timeliness
As a threshold matter, the Court must consider whether Petitioner's petition is barred by the statute of limitation. See White v. Klizkie, 281 F.3d 920, 921-22 (9th Cir. 2002). The AEDPA mandates that a one-year statute of limitations applies to applications for a writ of habeas corpus by a person in state custody. 28 U.S.C. § 2244(d)(1). Section 2244(d)(1) provides that the limitations period shall run from the latest of:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by the State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1); Shannon v. Newland, 410 F.3d 1083 (9th Cir. 2005). “The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2). Respondents do not dispute the timeliness of Pesqueira's petition, and the Court has independently reviewed the records and finds that his original petition (Doc. 2) is timely pursuant to 28 U.S.C. § 2244(d)(1)(A).
IV. ANALYSIS
A. Procedurally Defaulted Claims
As noted in Section II.B., supra, the fair presentation requirement mandates that a state prisoner must alert the state court “to the presence of a federal claim” in his petition. Baldwin v. Reese, 541 U.S. 27, 31-33, 124 S.Ct. 1347, 1351, 158 L.Ed.2d 64 (2004). “[A] petitioner satisfies the exhaustion requirement if he properly pursues a claim (1) throughout the entire direct appellate process of the state, or (2) throughout one entire judicial postconviction process available in the state.” Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004) (quoting Liebman & Hertz, Federal Habeas Corpus Practice and Procedure, § 23.3b (9th ed. 1998)). In other words, “a petitioner must properly raise [a claim] on every level of direct review.” Id. (emphasis added) (citing Ortberg v. Moody, 961F.2d 135, 137 (9th Cir. 1992)); see also Baldwin, 541 U.S. at 29, 124 S.Ct. at 1349 (fair presentation requires a prisoner to raise his claims “in each appropriate state court”). Here, Petitioner failed to raise any of his habeas claims on direct appeal and did not raise them to the Rule 32 court during his post-conviction proceedings.
In Ground One Petitioner asserts that the State's witnesses “committed perjury when they stated they do not know the Defendant Mr. Williams and his girlfriend/wife[.]” Amended Petition (Doc. 8-4) at 19. In his pro se Rule 32 petition, Petitioner checked the box alleging “[t]he unconstitutional use by the state of perjured testimony”; however, he did not provide any facts to support this allegation. Answer (Doc. 21), Petr.'s Pet. for PCR at 117, State v. Pesqueira, No. CR2011-2669-001 (Pima Cnty. Super. Ct. Aug. 31, 2017) (Exh. “FF”) (Doc. 21-9). Plaintiff further asserts that “[t]he perjury issue was brought up upon Rule 32 for litigation but was not completely litigated but has been preserved for appeal but confrontation is needed to properly be able to litigate.” Amended Petition (Doc. 8-4) at 19. Petitioner failed to indicate that he was complaining about a violation of federal law and did not provide any facts to support his allegation. Petitioner did not “fairly present” his perjury claim to the Rule 32 court. See Baldwin, 541 U.S. at 31-33, 124 S.Ct. at 1351.
Ground Two asserts that “County Attorney Barbara La Wall committed written perjury and defied court order committing due process violation and contempt of court.” Amended Petition (Doc. 8-4) at 21. Petitioner's contention is related to a Freedom of Information Act (“FOIA”) request to the Pima County Attorney seeking information pertaining to Petitioner's criminal case. Id. Petitioner argues that “Barbara La Walls actions clearly demonstrate either vindictive prosecution or prosicutioral [sic] misconduct with a Brady violation.” Id. Petitioner admits that “[t]his issue was not brought forth to State court due to State has denied all issues submitted[.]” Id. As such, Petitioner failed to “fairly present” his claim of alleged misconduct by the County Attorney to the Rule 32 court.
Ground Three asserts a double jeopardy violation. Amended Petition (Doc. 8-4) at 33. Petitioner argues that the “court used priors for enhancement and aggravating purposes” in violation of the Fifth Amendment's prohibition against multiple punishments for the same offense. Id. Petition also contends that he was entitled to credit for time served when he was sentenced. Id. Petitioner urges that “[t]his issue has been raised when challenging Indictment upon sentencing statute where State applied Rule 609 for enhancement.” Id. On direct appeal, Petitioner argued when he was re-indicted, “[t]he State re-alleged the sentencing allegations as to Mr. Williams, but did not do so as to Appellant[, ] . . . [and] the indictment does not list the dangerous nature sentencing statute in the string cite[, ]” which resulted in an illegal enhancement of Petitioner's sentences. Answer (Doc. 21), Appellant's Opening Br. at 126, State v. Pesqueira, No. 2 CA-CR 2013-0134 (Ariz.Ct.App. Mar. 11, 2014) (Exh. “P”) (Doc. 21-8). Petitioner did not allege any federal claims regarding sentencing enhancements, and the appellate court's decision relied solely on state law. See Id. at 124-26; State v. Pesqueira, 235 Ariz. 470, 477-78, 333 P.3d 797, 804-05 (Ariz.Ct.App. 2014). Because Petitioner failed to alert the state court to the presence of a federal claim, he did not “fairly present” it as required for habeas review. See Baldwin, 541 U.S. at 31-33, 124 S.Ct. at 1351.
In Ground Four, Petitioner alleges that the trial court abused its “discretion on grounds of Jury Instructions given[, ] Judge coerced jury to come to a unanimous decision.” Amended Petition (Doc. 8-4) at 34. Petitioner asserts that the trial judge directed the jurors that “[a]ll 12 of you must agree on any verdict[, ]” construing that language to coerce the jury to a unanimous verdict. Id. Petitioner acknowledges that he did not present this issue to the state appellate court “[b]ecause layman of law helping Petition had not seen this until properly reading transcripts.” Id. Petitioner failed to “fairly present” his claim of alleged error in the jury instructions to any state court barring such claim from habeas review.
In Ground Five, Petitioner alleges prejudice arising “[f]rom Instruction No. One to No. Seven[, ] [t]he judge gave exact same, indentical [sic] instruction which clearly undermines Mr. Pesqueira's chance at leeway.” Id. at 36. Petitioner again acknowledges that he did not present this issue to the state court “[b]ecause Petitioner was not aware of this factor, until he sought help to Appeal his conviction.” Id. Petitioner's failure to “fairly present” his second claim regarding the jury instructions to the state courts, precludes it from habeas review.
In Ground Six, Petitioner alleges an abuse of discretion and prejudice because “upon Jury Trial Day Four Testimony and Verdict, Petitioner did not want to sign stipulation, but the court chose to ignore his request.” Amended Petition (Doc. 8-4) at 40. The trial court allowed defense counsel to enter into a stipulation regarding the translation of the victim's autopsy report from Spanish to English despite Petitioner's opposition. Id. at 40-42. Petitioner acknowledges that he did not raise this claim to the state courts because 1) he told his counsel to do it, but she did not; and 2) Petitioner felt it would be useless given the trial court's comment. Petitioner failed to “fairly present” his claim regarding the stipulation to the state court.
“[P]etitioner failed to exhaust state remedies 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, 111 S.Ct. at 2557 n.1 (citations omitted); Ariz. R. Crim. P. 32.2(a)(3) (2020). Accordingly, the Court finds all of Petitioner's claims are procedurally defaulted.
B. No Cause and Prejudice to Excuse Default
Where a habeas petitioner's claims have been procedurally defaulted, the federal courts are prohibited from subsequent review unless the petitioner can show cause and actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068, 103 L.Ed.2d 334 (1989) (holding that failure to raise claims in state appellate proceeding barred federal habeas review unless petitioner demonstrated cause and prejudice). Petitioner has not met his burden to show either cause or actual prejudice. Murray v. Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986) (Petitioner “must show not merely that the errors . . . created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions”) (emphasis in original) (internal quotations omitted); see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally defaulting his claims[, ] . . . [and as such, ] there is no basis on which to address the merits of his claims.”). Neither has Petitioner “establish[ed] by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found [him] guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B). As such, Petitioner has failed to meet the cause and prejudice standard or demonstrate a fundamental miscarriage of justice. See Coleman, 501 U.S. at 748, 111 S.Ct. at 2564 (citations and quotations omitted). Accordingly, Petitioner's claims are denied.
V. CONCLUSION
Based upon the foregoing, the Court finds that Petitioner Manuel Jesus Pesqueira's habeas claims are procedurally defaulted without excuse and recommends that his
Amended Petition (Doc. 8) be denied.
VI. RECOMMENDATION
For the reasons delineated above, the Magistrate Judge recommends that the District Judge enter an order DENYING Petitioner's Amended Petition Pursuant to 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 8).
Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2), Federal Rules of Civil Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). No. replies shall be filed unless leave is granted from the District Judge. If objections are filed, the parties should use the following case number: CV-19-0047-TUC-JAS
Failure to file timely objections to any factual or legal determination of the Magistrate Judge may result in waiver of the right of review. Dated this 5th day of November, 2021.