Opinion
CV-20-02028-PHX-JJT (MTM)
10-18-2021
Jericho R Spriggs, Petitioner, v. David Shinn, et al., Respondents.
TO THE HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
Honorable Michael T. Morrissey United States Magistrate Judge
Petitioner has filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition”). (Doc. 1).
I. SUMMARY OF CONCLUSION
Petitioner was convicted of armed robbery and aggravated robbery by a jury in Maricopa County Superior Court and separately pled guilty to misconduct involving weapons. Petitioner raises seven grounds for relief; the first six grounds are either noncognizable or without merit, and the seventh is unexhausted and procedurally defaulted. Accordingly, Petitioner is not entitled to habeas relief, and the Court recommends that the Petition be denied and dismissed with prejudice.
II. BACKGROUND
A. Conviction & Sentencing.
In August 2015, Petitioner was indicted by a grand jury in the Maricopa County Superior Court on three counts consisting of armed robbery (Count 1), aggravated robbery (Count 2), and misconduct involving weapons (Count 3). (Doc. 9-1, Ex. A, at 5-7). A jury found Petitioner guilty on Counts 1 and 2, and Petitioner pled guilty to Count 3. (Doc. 94, Ex. H, at 2-7; see Doc. 9-4, Ex. I, at 8-43 [Sentencing Hearing Transcript]; Doc. 9-5, Ex. J, at 2-3 [Plea Agreement]). The Arizona Court of Appeals summarized the facts as follows:
The Court presumes the Arizona Court of Appeals' recounting of the facts is correct. 28 U.S.C. § 2254(e)(1).
In August 2015, the victim, GJ, was returning home to his apartment, when he was followed into the complex's secured lot by a Nissan Maxima. As he walked toward his apartment, someone touched GJ on the shoulder. GJ turned and saw Spriggs and an accomplice pointing guns at him. Spriggs put a gun to GJ's head and shoved him against a wall. Spriggs was wearing black pants, a black shirt, a baseball hat with a blue bandana underneath, and blue gloves. Spriggs's gun was black and chrome, and his accomplice's gun was black.
The men took GJ's wallet, keys, and phone and then ran back into the parking lot. The men were unable to leave the parking lot without a remote to open the gate. GJ asked a neighbor to call the police and retrieved his spare keys to chase the men in his vehicle. GJ used his vehicle to block the men into a corner of the parking lot, forcing them to abandon the Maxima and jump the fence. Spriggs's fingerprints were later discovered inside the Maxima.
Phoenix police detective RM noticed Spriggs walking along a road in an area near the apartment complex. Spriggs “was sweating profusely, ” was wearing black pants and a backpack, and had gloves hanging from his back pocket. Detective RM discovered two pairs of keys in Spriggs's possession, one set of which belonged to GJ. Spriggs also had a blue bandana in his front pocket and a chrome and black gun in his backpack. About twenty minutes after the robbery, GJ identified Spriggs as one of the men who robbed him.
Spriggs testified that, on the night of the robbery, he finished work at a nearby store around midnight and called his wife for a ride home. Spriggs received a call from his wife's cousin's boyfriend, who offered to give him a ride in the Maxima, a vehicle in which Spriggs had previously ridden several times. Spriggs asked the driver to drop him off at a nearby home so he could purchase marijuana cigarettes and left his backpack in the Maxima. Spriggs testified that, as he was walking toward the meeting point, he saw the driver running toward him. The driver handed Spriggs's backpack to him and told Spriggs to run, which he did. Spriggs testified the first time he saw the black
and chrome gun was when it was pulled out of his backpack by the police.
During the trial, the State impeached Spriggs with the inconsistencies between his testimony and his statements to police. The State also referenced Spriggs's inconsistent statements during closing argument. Spriggs was convicted of armed robbery and aggravated robbery, and he pled guilty to misconduct involving weapons. He was sentenced to concurrent terms of 15.75, 11.25, and 10 years' imprisonment, respectively.(Doc. 9-5, Ex. P. at 96-97).
B. Direct Appeal.
On August 22, 2016, Petitioner appealed his convictions and sentences on Counts 1 and 2 to the Arizona Court of Appeals. (Doc. 9-5, Ex. K, at 5-6). Petitioner asserted that he was impermissibly impeached at trial with post-arrest statements made after he invoked his right to remain silent. (Doc. 9-5, Ex. M, at 27-48). The Court of Appeals noted that Petitioner had not remained silent after invoking his right to do so, and found that his statements to police were not made involuntarily. (Doc. 9-5, Ex. P, at 98). The Court of Appeals concluded the impeachment of Petitioner was proper and affirmed his convictions and sentences. (Id. at 98-99). Petitioner did not petition for review by the Arizona Supreme Court, and on November 21, 2017, the Court of Appeals issued its mandate. (Doc. 9-5, Ex. S, at 106).
C. Post-Conviction Relief Proceeding.
On November 17, 2017, Petitioner filed a notice of post-conviction relief (“PCR”) in superior court pursuant to Ariz. R. Crim. P. 32, seeking relief from all convictions and sentences. (Doc. 9-5, Ex. T, at 110-13). The PCR Court appointed counsel for petitioner; on August 3, 2018, counsel filed a notice pursuant to Ariz. R. Crim. P. 32.4(d)(2)(A) stating that he found no colorable claim for PCR. (Doc. 9-5, Ex. U, at 115-16; Doc. 9-6, Ex. CC, at 21-25). Petitioner was given until September 28, 2018 to file a pro per PCR Petition. (Doc. 9-6, Ex. DD, at 27-28). On September 17, 2018, the PCR Court granted Petitioner's motion for an extension, extending this deadline to November 1, 2018. (Doc. 9-6, Ex. EE, at 30-32; Doc. 9-6, Ex. FF, at 35-36).
Effective January 1, 2020, the Arizona Supreme Court abrogated former Rule 32 and divided its substance among new Rule 32 (applying to defendants convicted at trial) and new Rule 33 (applying to defendants who pled guilty or no contest). Ariz. Sup. Ct. Order No. R-19-0012, available at https://www.azcourts.gov/rules/Recent-Amendments/Rules-of-Criminal-Procedure. The new rules apply to PCR proceedings that were initiated or pending on or after January 1, 2020 except where “applying the rule or amendment would be infeasible or work an injustice.” Id.; see State v. Mendoza, 467 P.3d 1120, 1122 n.1 (Ariz.Ct.App. 2020); McCray v. Shinn, No. CV-17-01658-PHX-DJH, 2020 WL 919180, at *4 n.4 (D. Ariz. Feb. 26, 2020); Demaree v. Sanders, No. CV-17-00294-TUC-EJM, 2020 WL 2084582, at *2 n.4 (D. Ariz. Apr. 30, 2020). Any reference to Rule 32 in this Report is to the pre-2020 amendment version unless otherwise stated.
On October 3, 2018, Petitioner filed a motion to compel the State to disclose the results of DNA testing of the blue baseball cap Petitioner had been wearing at the time of the incident. (Doc. 9-6, Ex. GG, at 38-49). On October 16, 2018, the PCR Court granted the motion and ordered the State to provide Petitioner with “copies of the laboratory reports, underlying data, and notes in connection with DNA testing of the blue baseball cap.” (Doc. 9-6, Ex. HH, at 51). The State complied. (See Doc. 9-6, Ex. II, at 72-100). The State's disclosure included a June 10, 2016 forensics report, which stated that the DNA results for the blue hat were “not suitable for comparison purposes” because the testing indicated “at least five sources” of DNA. (Id. at 85 [“Mixed STR DNA results from at least five sources were obtained from the swabs of inside blue hat (item 4464165-0004.01). Due to the complexity of this mixture, these results were not suitable for comparison purposes.”]). Despite having received the DNA report, Petitioner, on January 17, 2019, filed a motion to compel DNA testing of the blue hat (hereinafter, “DNA Motion”), stating it “was never done.” (Id. at 53-56). In his January 17, 2019 DNA Motion, notwithstanding that the November 1, 2018 deadline to file his PCR Petition had expired, Petitioner stated he would need more time to file his PCR Petition. (Id. at 53-54).
Petitioner's DNA Motion included as an attachment the previously-disclosed DNA report. (Doc. 9-6, Ex. II, at 71-85 [“Exhibit B”]).
On February 7, 2019, pursuant to Ariz. R. Crim. P. 32.12, the PCR Court construed Petitioner's DNA Motion as his PCR Petition. (Doc. 9-6, Ex. KK, at 104-05). The State's Response to the DNA Motion noted that the blue hat had been tested for DNA, as shown by the June 10, 2016 DNA report. (Doc. 9-6, Ex. LL, at 107-09). On April 8, 2019, the PCR Court granted Petitioner until April 23, 2019 to reply to the State's response. (Doc. 9-6, Ex. MM, at 112). On April 9, 2021, Petitioner filed a motion for a 90-day extension of the deadline to file his PCR Petition. (Doc. 9-6, Ex. NN, at 114-15). The PCR Court construed this as a motion for an extension to file a reply to the State's response and granted Petitioner until May 10, 2019 to do so. (Doc. 9-7, Ex. OO, at 2). Petitioner never filed a reply; instead, he filed a number of miscellaneous motions, which the PCR Court ultimately denied.
At the time of Petitioner's PCR Petition, this rule provided the procedures for post conviction DNA testing. See generally Ariz. R. Crim. P. 32.12(a) (“Any person who has been convicted and sentenced for a felony offense may petition the court at any time for forensic deoxyribonucleic acid (DNA) testing of any evidence: (1) in the possession or control of the court or the State; (2) related to the investigation or prosecution that resulted in the judgment of conviction; and (3) that may contain biological evidence.”).
See Doc. 9-7, Ex. PP, at 4-6 (Motion to Extend Time to File PCR Petition, 5/10/2019); Doc. 9-7, Ex. QQ, at 8-10 (Motion for Funds for Private Investigator, 5/10/2019); Doc. 9-7, Ex. RR, at 12-14 (Motion for Funds for Independent DNA Testing, 5/13/2019); Doc. 9-7, Ex. TT, at 21-22 (Motion to Extend Time to File PCR Petition, 5/21/2019); Doc. 9-7, Ex. UU, at 30 (PCR Court's Order of Denial, 5/28/2019).
On June 18, 2019, the PCR Court dismissed Petitioner's “Petition for PostConviction re: DNA Testing, ” finding that Petitioner had not presented a colorable claim for post-conviction relief. (Doc. 9-7, Ex. VV, at 32). After the PCR Court denied a motion for reconsideration (doc. 9-7, Ex. YY, at 41), on August 12, 2019 Petitioner filed a petition for review in the Arizona Court of Appeals, requesting reinstatement of his PCR proceeding to allow him to file a new PCR Petition. (Doc. 9-7, Ex. BBB, at 48-49). On May 7, 2020, the Arizona Court of Appeals granted review but denied relief, finding no abuse of discretion by the PCR Court. (Doc. 9-8, Ex. FFF, at 16-17). Petitioner did not petition for review by the Arizona Supreme Court; on June 25, 2020, the Court of Appeals issued its mandate. (Doc. 9-8, Ex. GGG, at 19).
III. PETITION FOR WRIT OF HABEAS CORPUS
As summarized by the Court in its November 19, 2020 Service Order, Petitioner raises the following seven grounds for habeas relief:
(1) The trial court deprived Petitioner of the right to collaterally attack his sentences and conviction, in violation of his Fourteenth Amendment rights to due process and equal protection. He contends the trial court dismissed his petition for post-conviction relief as having no merit or colorable claims even though he never filed a petition for postconviction relief; he asserts he filed a notice for postconviction relief and a motion for post-conviction deoxyribonucleic acid (DNA) testing, but not a petition for post-conviction relief.
(2) Petitioner was deprived of due process and equal protection because neither the trial court nor the State “gave him proper notice that his ‘Motion' for DNA Testing [was] going to be construed as a PCR Petition.”
(3) The trial court denied Petitioner due process and equal protection “when it dismissed the Petition for Post-Conviction Relief without objection from the State.”
(4) The Arizona courts deprived Petitioner of due process “when they did not address all issues and their merits.” He contends the trial court dismissed the petition for post-conviction relief “without addressing the merits and findings, facts of law” and without a hearing, and the Arizona Court of Appeals and Supreme Court “never addressed the merits.”
(5) The Arizona courts denied Petitioner due process when they denied him “access to the courts and access to state a claim.” He asserts the trial court dismissed his petition for postconviction relief, even though he had not filed a petition for post-conviction relief, and erred in construing his motion for DNA testing as a petition for postconviction relief; the Arizona Court of Appeals concluded that even though Petitioner had not filed a petition for post-conviction relief, Petitioner was “still procedural[ly] barred and the court was right to construe his Motion for DNA Testing as a Petition for Post-conviction Relief”; and the Arizona Supreme Court affirmed.
(6) Petitioner was denied his Sixth Amendment right to counsel because he “was not represented by authorize[d] counsel.” He claims his “attorney of record never filed a notice of appearance” and Petitioner did not “complete any indig[e]ncy question[n]aire to qualify the petitioner for an attorney appointed by the court.” Petitioner asserts,
therefore, that he “was without counsel as required [a]nd that the counsel who appeared without lawful authority was not acting in a fid[u]ciary role that was meant to be benefi[c]ial to the petitioner.”
(7) Petitioner was denied his Fourteenth Amendment rights to due process and equal protection because the trial court imposed an “illegal sentence” by enhancing his sentences for “group affiliation.”(Doc. 4 at 2-3). On February 4, 2021, Respondents filed a Limited Answer arguing that the Petition should be dismissed. (Doc. 9). On April 16, 2021, Petitioner replied. (Doc. 12).
IV. LEGAL STANDARDS
A. Cognizability.
“In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991); see 28 U.S.C. § 2254(a). “[F]ederal habeas corpus relief does not lie for errors of state law.” Swarthout v. Cooke, 562 U.S. 216, 219 (2011); see Estelle, 502 U.S. at 63 (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”).
B. Exhaustion of State Remedies.
“Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quotes and citations omitted); see 28 U.S.C. § 2254(b)(1). “To provide the State with the necessary opportunity, the prisoner must fairly present his claim in each appropriate state court . . . thereby alerting that court to the federal nature of the claim.” Id. (quotes and citations omitted). “To exhaust one's state court remedies in Arizona, a petitioner must first raise the claim in a direct appeal or collaterally attack his conviction in a petition for postconviction relief[.]” Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). Except in capital cases, claims of Arizona prisoners “are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.” Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999) (citing Moreno v. Gonzalez, 192 Ariz. 131, 133-134 (1998); see Crowell v. Knowles, 483 F.Supp.2d 925, 933 (D. Ariz. 2007).
C. Procedural Default.
A federal court may not review a claim that “a state court declined to hear because the prisoner failed to abide by a state procedural rule.” Martinez v. Ryan, 566 U.S. 1, 9 (2012). “A state court's invocation of a procedural rule to deny a prisoner's claims precludes federal review of the claims if, among other requisites, the state procedural rule is a nonfederal ground adequate to support the judgment and the rule is firmly established and consistently followed.” Id. “Arizona's waiver rules are independent and adequate bases for denying [habeas] relief.” Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014) (citing Stewartv. Smith, 536 U.S. 856, 859-60 (2002)); see Ariz. R. Crim. P. 32.2(a)(3); 33.2(a)(3) (2020). A state procedural bar need not be expressly invoked and applied by a state court in order for a claim to be procedurally defaulted on habeas review; “[a]n implied procedural bar” may exist “when a petitioner has failed to fairly present his claims to the highest state court and would now be barred by a state procedural rule from doing so.” Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010).
Nevertheless, a prisoner can obtain federal review of a procedurally defaulted claim if he “can demonstrate either cause for the default and resulting prejudice, or that failure to review the claims would result in a fundamental miscarriage of justice.” Moormann v. Schriro, 426 F.3d 1044, 1058 (9th Cir. 2005) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)). “‘Cause' . . . must be something external to the petitioner, something that cannot fairly be attributed to him.” Coleman, 502 U.S. at 753 (emphasis in original). The fundamental miscarriage of justice “exception is limited to those who are actually innocent.” Poland v. Stewart, 117 F.3d 1094, 1106 (9th Cir. 1997) (citing Murray v. Carrier, 477 U.S. 478, 496 (1986)).
D. Merits.
To obtain habeas relief on a claim, the petitioner must show that the state court's 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). As recently reaffirmed by the Supreme Court:
The term “unreasonable” [in § 2254(d)] refers not to “ordinary error” or even to circumstances where the petitioner offers “a strong case for relief, ” but rather to “‘extreme malfunctions in the state criminal justice system.'” In other words, a federal court may intrude on a State's “‘sovereign power to punish offenders'” only when a decision “was so lacking in justification . . . beyond any possibility for fairminded disagreement.”Mays v. Hines, 141 S.Ct. 1145, 1149 (2021) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011); alterations omitted).
A claim may be denied on its merits notwithstanding that it may be unexhausted or procedurally defaulted. See 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.”); Medley v. Ryan, No. CV-12-762-PHX-GMS (BSB), 2012 WL 6814246, at *5 (D. Ariz. Dec. 10, 2012) (denying habeas petitioner's “plainly meritless” claim on the merits notwithstanding that it was procedurally barred), adopted by 2013 WL 105269 (D. Ariz. Jan. 9, 2013).
V. ANALYSIS
A. Grounds 1, 2, and 5.
In Ground 1, Petitioner asserts that the Arizona courts denied him due process and equal protection by depriving him of his right to file a PCR Petition. (Doc. 1 at 5-10). Petitioner states he “never filed a petition for post-conviction relief” and that the PCR Court “pervert[ed] the legal process” by construing his DNA Motion as his PCR Petition. (Id. at 7-8). In Ground 2, Petitioner argues that the PCR Court deprived him of due process and equal protection by failing to give “proper notice” that it would construe his DNA Motion as his PCR Petition. (Id. at 11). In Ground 5, Petitioner reasserts the claims made in Grounds 1 and 2 and argues that the Arizona courts denied him “access to the courts and access to state a claim, ” depriving him of due process. (Id. at 18-22).
As an initial matter, because Petitioner pled guilty to Count 3 and thereby waived his right to a direct appeal (doc. 9-4 at 17-19), his PCR proceeding was his “appeal of right” for his conviction and sentence on Count 3. See Ariz. R. Crim. P. 32.1 (“A defendant who pled guilty . . . may file an of-right notice of post-conviction relief.”); State v. Petty, 225 Ariz. 369, 372 (App. 2010) (“[F]or a pleading defendant, Rule 32 is the only means available for exercising the defendant's constitutional right to appellate review.”) (quotes, alterations, and citation omitted).
Petitioner is not correct in asserting that the Arizona courts deprived him of an of-right appeal or of the opportunity to file a PCR Petition. Petitioner's convictions and sentences were affirmed on direct appeal. (Doc. 9-5, Ex. P at 98-99). As to PCR relief, the record demonstrates that Petitioner did not timely file a PCR petition. As discussed in Section II(C), supra, after granting his request for an extension, the PCR Court gave Petitioner until November 1, 2018 to file his PCR Petition; Petitioner did not file a PCR Petition by that date. In the absence of a PCR petition filed by Petitioner, the PCR Court construed Petitioner's DNA Motion as a properly filed PCR Petition, despite the fact that the DNA Motion, filed January 17, 2019, was filed approximately 78 days after expiration of the November 1, 2018 deadline to file a PCR petition. (Doc. 9-6, Ex. EE, at 30-32; Doc. 9-6, Ex. FF, at 35-36). Rather than denying Petitioner an opportunity to file a PCR Petition, the PCR Court's construing of Petitioner's DNA Motion as a PCR petition provided Petitioner with a forum for his claim and access to the courts. The PCR Court's construction of Petitioner's motions benefitted, rather than harmed Petitioner, as the PCR Court could have dismissed Petitioner's DNA motion with prejudice for his failure to file a timely PCR Petition. See Moreno v. Gonzalez, 116 F.3d 409, 410 (9th Cir. 1997) (“Ordinarily, untimely [Arizona PCR] petitions are dismissed with prejudice for lack of jurisdiction.”).
Thus, to the extent that Petitioner asserts in Grounds 1, 2, and 5 that he was denied his right to state his claims in post-conviction review, in violation of his federal right to due process, his assertions are without merit. Petitioner was afforded the opportunity to file a PCR Petition but did not do so, even after being granted extensions of time to do so. To the extent that Petitioner claims the PCR Court violated his constitutional rights by construing his DNA Motion as his PCR Petition, his claim is noncognizable. Cooper v. Neven, 641 F.3d 322, 331-32 (9th Cir. 2011) (“[A] petition alleging errors in the state postconviction review process is not addressable through habeas corpus proceedings.”) (quotes and citation omitted). Petitioner received all that federal due process demands: an opportunity for direct review of each of convictions and sentences, either through a direct appeal or an of-right PCR proceeding. Petitioner has not shown, as required for habeas relief under 28 U.S.C. § 2254(d), that the state court made a decision that was contrary to or was an unreasonable application of clearly established federal law. Accordingly, the Court recommends that Grounds 1, 2, and 5 be dismissed with prejudice.
Petitioner also asserts that the PCR Court violated Ariz. R. Civ. P. 11 and Ariz. Const. Art. II, § 11. (Doc. 1 at 22). These claims are also noncognizable. Swarthout, 562 U.S. at 219 (“[F]ederal habeas corpus relief does not lie for errors of state law.”).
B. Ground 3.
In Ground 3, Petitioner argues that the PCR Court denied him due process and equal protection when it dismissed the DNA Motion/PCR Petition “without objection from the state.” (Doc. 1 at 12-13). Petitioner incorrectly asserts that Ariz. R. Crim. P. 32.4(a)(2) “requires the objection of the government” before a PCR Petition can be dismissed. (Id.). However, the rule contains no such requirement. See Ariz. R. Crim. P. 32.4(a)(2). Moreover, Petitioner is not correct in asserting that the State did not respond to the DNA Motion/PCR Petition; the State responded on March 18, 2019. (See Doc. 9-6, Ex. LL, at 107-09). In any event, Petitioner is not entitled to habeas relief on Ground 3 because his assertion of an error in the application of state law is not cognizable on federal habeas review. Swarthout, 562 U.S. at 219 (“[F]ederal habeas corpus relief does not lie for errors of state law.”); Cooper, 641 F.3d at 331-32 (“[A] petition alleging errors in the state postconviction review process is not addressable through habeas corpus proceedings.”). Accordingly, the Court recommends that Ground 3 be dismissed with prejudice.
C. Ground 4.
In Ground 4, Petitioner asserts that the Arizona courts denied him due process “when they did not address all issues and their merits.” (Doc. 1 at 15). Specifically, Petitioner maintains that the Arizona courts “never addressed” the merits of the DNA Motion/PCR Petition. (Id.).
Contrary to Petitioner's assertions, the record demonstrates that the Arizona courts appropriately addressed the issues Petitioner raised. Petitioner in fact received the relief he requested from the PCR Court. On October 16, 2018, the PCR Court granted Petitioner's October 3, 2018 motion to compel and ordered the State to produce the results of the DNA testing of the blue hat. (Doc. 9-6, Ex. HH, at 51). Petitioner received the relevant documents and reports. (Doc. 9-6, Ex. II, at 72-100). Upon Petitioner's filing of his DNA Motion on January 17, 2019, seeking to compel DNA testing of the blue hat, despite having previously received those results, the PCR Court ruled on Petitioner's DNA Motion, after construing it as a PCR Petition, and found that it presented no colorable claim for relief. (Doc. 9-7, Ex. VV, at 32). For its part, the Arizona Court of Appeals granted review of Petitioner's appeal of the dismissal of his PCR Petition, but denied relief, finding no abuse of discretion by the PCR Court. (Doc. 9-8, Ex. FFF, at 16-17). Contrary to Petitioner's assertion, both the PCR Court and Arizona Court of Appeals reviewed the merits of his claims and found his claims lacked merit.
Petitioner did not file a petition for review in the Arizona Supreme Court after the Arizona Court of Appeals affirmed the PCR's Court denial of the PCR petition.
Petitioner has not shown, as required for habeas relief under 28 U.S.C. § 2254(d), that the state court made a decision that was contrary to or was an unreasonable application of clearly established federal law. Accordingly, the Court recommends that Ground 4 be dismissed with prejudice.
D. Ground 6.
In Ground 6, Petitioner argues that his Sixth Amendment rights were violated because he did not authorize his appointed counsel to represent him in his PCR proceeding. (Doc. 1 at 24-28). Specifically, Petitioner alleges a violation of his Sixth Amendment rights on the basis that he did not complete an indigency questionnaire to qualify him for a court-appointed attorney and that his appointed attorney did not file a notice of appearance. (Id. at 27). Further, Petitioner alleges that his appointed counsel “purposefully assisted in [the] sabotage of” his Sixth Amendment rights. (Id.).
As an initial matter, the Court presumes Petitioner had a federal constitutional right to counsel for his PCR proceeding since it was an “of-right” proceeding as it pertained to Count 3. Osterkamp v. Browning, 226 Ariz. 485, 490 (App. 2011) (“[T]he pleading defendant's first post-conviction proceeding [i]s the equivalent of a non-pleading defendant's appeal and [therefore] the pleading defendant[] [has a] right to the effective assistance of counsel in that proceeding.”).
To the extent that Petitioner seeks habeas relief in Ground 6 based on alleged procedural errors in the course of him being appointed counsel-i.e., whether he filled out an indigency questionnaire and whether counsel filed a notice of appearance-this claim is noncognizable, as these are issues of state procedural law. Swarthout, 562 U.S. at 219 (“[F]ederal habeas corpus relief does not lie for errors of state law.”); Cooper, 641 F.3d at 331-32 (“[A] petition alleging errors in the state post-conviction review process is not addressable through habeas corpus proceedings.”).
Moreover, Petitioner does not support his allegations that appointed counsel acted to his detriment. Counsel fulfilled his duty under Ariz. R. Crim. P. 32.4(d)(1) to “investigate [Petitioner's] case for any and all colorable claims” and, when he found none, filed his notice stating such as required by Ariz. R. Crim. P. 32.4(d)(2)(A). (Doc. 9-6, Ex. CC, at 20-25). Additionally, counsel requested a 45-day extension of time for Petitioner to file a pro per PCR Petition. (Id. at 24). The PCR Court granted counsel's motion for time for Petitioner to file a pro per PCR Petition. (Doc. 9-6, Ex. DD, at 27-28). On this record, there is no evidence that counsel “purposefully assisted” in sabotaging Petitioner in any regard warranting habeas relief. See James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (“Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.”); Young v. Gipson, 163 F.Supp.3d 647, 684 (N.D. Cal. 2015) (“Clearly established federal law does not permit the grant of habeas relief on conclusory and unsupported claims.”) (citing Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir.1995)).
Petitioner has not shown, as required for habeas relief under 28 U.S.C. § 2254(d), that the state court made a decision that was contrary to or was an unreasonable application of clearly established federal law. Accordingly, the Court recommends that Ground 6 be dismissed with prejudice.
E. Ground 7.
In Ground 7, Petitioner claims that the trial court imposed an “illegal sentence” enhancement based on his gang affiliation, in violation of the Fourteenth Amendment. (Doc. 1 at 30). Petitioner asserts that an unspecified “recent Supreme Court ruling held a defendant's sentence is prohibited from enhancement due to gang relations.” (Id.). Based on Petitioner's citation to A.R.S. § 13-1202 (id.), he is apparently referring to State v. Arevalo, 249 Ariz. 370 (2020). In Arevalo, the Arizona Supreme Court held that A.R.S. § 13-1202(B)(2) is unconstitutional “because it increases a criminal sentence based solely upon gang status in violation of substantive due process.” Id. at 372.
As conceded by Petitioner (doc. 1 at 31), he did not present this claim to the Arizona Court of Appeals either on direct appeal (see doc. 9-5, Ex. M, at 13-52) or in his PCR petition for review (see doc. 9-7, Ex. BBB, at 48-83). Accordingly, Ground 7 is unexhausted. Swoopes, 196 F.3d at 1010 (“To exhaust one's state court remedies in Arizona, a petitioner must first raise the claim in a direct appeal or collaterally attack his conviction in a petition for post-conviction relief[.]”); Roettgen, 33 F.3d at 38 (“[Claims of Arizona prisoners not sentenced to death] are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.”).
Moreover, Ground 7 is implicitly procedurally defaulted. In Arizona, a defendant seeking post-conviction relief on federal constitutional grounds must raise the claim within 90 days after the oral pronouncement of sentence or within 30 days after the issuance of the mandate in the direct appeal, whichever is later. Ariz. R. Crim. P. 32.4(b)(3)(A); 33.4(b)(3)(A) (2020). Failure to do so waives the claim, and a defendant is precluded from post-conviction relief on claims waived. Ariz. R. Crim. P. 32.2(a)(3); 33.2(a)(3) (2020); Stewart v. Smith, 202 Ariz. 446, 449 (2002). As held by the Ninth Circuit, “Arizona's waiver rules are independent and adequate bases for denying [habeas] relief.” Hurles, 752 F.3d at 780.
However, a claim is not waived merely for failing to raise it if 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. 32.2(a)(3); 33.2(a)(3) (2020). The Arizona Supreme Court has recognized a defendant's right to counsel and right to a jury trial as examples of such “fundamental” constitutional rights. Stewart, 202 Ariz. at 449-50. At issue in Ground 7 is not a “fundamental” constitutional right.
Here, the Arizona Court of Appeals issued its mandate following Petitioner's direct appeal on November 21, 2017. (Doc. 9-5, Ex. S, at 106). Petitioner did not raise Ground 7 before the Arizona courts within 30 days of this date and therefore waived them. Ariz. R. Crim. P. 32.2(a)(3); 33.2(a)(3) (2020); Stewart, 202 Ariz. at 449. As such, they are procedurally defaulted and consequently barred from this Court's review. Hurles, 752 F.3d at 780; Robinson, 595 F.3d at 1100.
In his Reply, Petitioner asserts that the State allegedly waived any argument on procedural default by addressing the merits of his claims during these proceedings. (Doc. 12 at 12-13). Petitioner does not cite any authority in support of this assertion; in any event, it is unsupported by the relevant case law. “[P]rocedural default is normally a defense that the State is obligated to raise and preserve if it is not to lose the right to assert the defense thereafter.” Trest v. Cain, 522 U.S. 87, 88 (1997) (quotes, citations, and alterations omitted); see Franklin v. Johnson, 290 F.3d 1223, 1229 (9th Cir. 2002) (same); see also Gonzalez v. United States, 33 F.3d 1047, 1049 (9th Cir. 1994) (holding that the government waived procedural default arguments on appeal to the Ninth Circuit because it “failed to assert procedural default in the district court proceedings”). Here, the State raised and therefore did not waive procedural default as an affirmative defense in its limited answer to Petitioner's Petition, notwithstanding that the State raised other arguments in support of the Petition's dismissal, e.g., noncognizability. (Doc. 9 at 13-31).
The State only argued that Petitioner's claims are either noncognizable or procedurally defaulted and unexhausted. (See Doc. 9 at 14-31).
Additionally, Petitioner asserts that he was not required to make specific legal arguments in support of Ground 7 in the Petition because the Petition requires only that he state the facts that support relief. (Id. at 15-16). But failure to cite case law in the Petition is not why Ground 7 is unexhausted and procedurally defaulted; Ground 7 is unexhausted and procedurally defaulted because Petitioner did not argue that his sentence was illegally enhanced due to gang affiliation before the Arizona Court of Appeals on direct appeal or at any point during his PCR proceeding.
Petitioner fails to show cause to excuse the default. Petitioner was expressly informed by the PCR Court's Order that his PCR Petition was due by November 1, 2018 (a date which was the result of the PCR Court granting Petitioner an extension). (Doc. 96, Ex. FF, at 35). Petitioner does not show anything external of him that prevented him from filing a PCR Petition on or before November 1, 2018. See Coleman, 502 U.S. at 753 (“Cause . must be something external to the petitioner, something that cannot fairly be attributed to him.”) (emphasis in original). Further, on this record, no fundamental miscarriage of justice would result from a failure to review Ground 7. As summarized by the Arizona Court of Appeals, the evidence against Petitioner does not support any claim of actual innocence, and Petitioner does not make that claim in any event. Petitioner was stopped by a Phoenix police detective shortly after the robbery, while in possession of the victim's car keys, which had been taken from the victim at gunpoint; approximately twenty minutes after the robbery, the victim identified Petitioner as one of the men who robbed him. (Doc. 9-5, Ex. P at 96-7). Accordingly, Ground 7 is procedurally defaulted without adequate excuse and consequently barred from this Court's review. Coleman, 502 U.S. at 753. The Court recommends that Ground 7 be dismissed with prejudice.
VI. CONCLUSION
The record is sufficiently developed, and the Court does not find that an evidentiary hearing is necessary for resolution of this matter. See Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 2011). Based on the preceding analysis and conclusions, the Court recommends that Petitioner's Petition be denied and dismissed with prejudice.
VII. CERTIFICATE OF APPEALABILITY
“The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11(a), Rules Governing Section 2254 Cases, 28 U.S.C. § 2254. The Court may issue a certificate of appealability “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Petitioner has not made the requisite showing here, and therefore the Court recommends that a certificate of appealability be denied.
IT IS THEREFORE RECOMMENDED that Petitioner's Petition for a Writ of Habeas Corpus (doc. 1) be DENIED and DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that a certificate of appealability be DENIED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have 14 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. Thereafter, the parties have 14 days within which to file a response to the 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 determinations 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.