Opinion
CV-06-0383-PHX-DGC (JI).
June 5, 2006
REPORT RECOMMENDATION On Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254
I. MATTER UNDER CONSIDERATION
Petitioner, presently incarcerated in the Arizona State Prison Complex at Florence, Arizona, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on February 2, 2006 (#1). The Petitioner's Petition is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
II. RELEVANT FACTUAL PROCEDURAL BACKGROUND
A. FACTUAL BACKGROUNDu
In denying Petitioner's direct appeal, the Arizona Court of Appeals described the factual background as follows:
On April 20, 2002, J.H. and T.B., K-mart Corporation loss-prevention employees, saw Defendant pocket several boxes of Sudafed and leave the store without paying. They chased him into the parking lot. Defendant ran until he tripped and fell. As T.B. overtook him, Defendant stood up and brandished a knife. T.B. began to back away while J.H. ran up. J.H. and T.B. retreated toward the store as Defendant shouted "get the f___ away or I'll kill you." Defendant then moved toward the victims and continued to threaten to "kill" them.
At some point, J.H. pushed Defendant to the ground and kicked him in the face. T.B. then kicked the knife out of Defendant's hand. After subduing Defendant, they handcuffed him, and then took him and the knife into the store to await the police. The police observed blood on Defendant's hands and face, collected the knife, and spoke to the employees. Defendant was arrested and transported to the hospital for treatment of a cut to his chin.
(Answer, #7, Exhibit E, Memorandum Decision at 3-4.) (Exhibits to the Answer, #7 are reference hereinafter as "Exhibit __.")
B. PROCEEDINGS AT TRIAL
Petitioner was eventually indicted on two counts of aggravated assault, and one count of shoplifting. The State alleged Defendant had five prior felony convictions. At the conclusion of a jury trial, Defendant was found guilty on all counts. Subsequently a trial was conducted on the prior felonies, for the purpose of aggravating his sentence, and the court found that Defendant had two historical prior felony convictions. Petitioner was then sentenced to two concurrent ten-year sentences for the aggravated assault charges and time served on the shoplifting charge. The court subsequently denied Petitioner's motion for new trial. (Exhibit E at 4.)
C. PROCEEDINGS ON DIRECT APPEAL
Petitioner filed a direct appeal. Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and related state authorities, asserting he had found no tenable issues for appeal. At Petitioner's request, however, counsel raised five arguments: "1) the court erred by refusing to appoint an attorney, other than his defense counsel, to act as advisory counsel; 2) the testimony of the victims was not credible; 3) the stolen boxes of Sudafed were not introduced into evidence; 4) the knife Defendant used to threaten the victims should have been suppressed because no fingerprints were found on it; and 5) the trial court erred by not granting a new trial based on juror misconduct." (Exhibit E, Memorandum Decision at 2.) Petitioner also filed a Supplemental Brief, raising three additional arguments: "6) the State failed to prove beyond a reasonable doubt that he was guilty of aggravated assault; 7) the trial court abused its discretion by not instructing the jury on disorderly conduct as a lesser included offense of aggravated assault; and 8) the court erred by sentencing him to an enhanced sentence based on two prior felonies without proof of those felonies by the State." ( Id. at 2-3.)
Petitioner also raised a claim of ineffective assistance of trial counsel, arguing "that his lawyer was ineffective for not interviewing jurors after trial to determine whether misconduct occurred warranting a new trial." But, the Court of Appeals refused to consider the claim, noting that ineffective assistance claims were only properly raised in post-conviction relief proceedings. ( Id. at 2, n. 1.)
In a Memorandum Decision issued January 11, 2005, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. ( Id. at 13.) Petitioner did not seek further review by the Arizona Supreme Court, and on February 17, 2005, the Arizona Court of Appeals issued it's "Order and Mandate." (Exhibit G; Petition, #1 at 2.)
D. PROCEEDINGS ON POST-CONVICTION RELIEF
On January 25, 2005, Petitioner filed his Notice of Post-Conviction Relief (Exhibit F.) Counsel was appointed, and on April 28, 2005, counsel filed his "Notice of Completion of Post-Conviction Review and Request for Extension of Time to Allow Petitioner to Proceed Pro Per" (Exhibit H). Counsel represented that he had "communicated with Petitioner, reviewed the trial transcripts and all relevant documents in this matter, and is unable to discern any colorable claim upon which to base a Petition for Post-Conviction Relief." (Exhibit H at 1.) The motion to extend was granted, and counsel was ordered to remain in an advisory capacity. (Exhibit I, M.E. 5/3/05.)
On June 15, 2005, Petitioner filed his pro per Petition for Post-Conviction Relief (Exhibit J), asserting seven claims, including: ineffective assistance of counsel in failing to (1) request a lesser included offense instruction, (2) allow the Petitioner to testify, and (3) to address the state's use of prior convictions; (4) 5th Amendment violations; (5) 6th Amendment violations; (6) 14th Amendment violations; and (7) an illegal sentence. ( Id. at 4.) On June 27, 2005, Petitioner filed a Supplement to his PCR Petition, arguing that the prior convictions had not been determined by a jury. (Exhibit K.)
The trial court noted that Petitioner had not included the required certification that all known grounds were included in the petition, and accordingly Petitioner was granted time to file a proper certification. (Exhibit L, M.E. 6/27/05.) Petitioner complied by filing his "Pro-Per Petition for Post-Conviction Relief" with the requisite certification. (Exhibit M.) The trial court summarily dismissed the petition. (Exhibit P, M.E. 12/07/05.)
Petitioner did not seek review of that dismissal by the Arizona Court of Appeals. (Exhibit Q, Docket; Petition, #1 at 2.)
E. PRESENT FEDERAL HABEAS PROCEEDINGS
Petitioner filed the present Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on February 2, 2006 (#1). Petitioner's Petition asserts three grounds for relief: (1) (a) defense counsel's refusal to call Petitioner to testify resulted in the denial of his 5th and 6th Amendment rights to testify on his own behalf and confront his accusers; and (b) there was not sufficient evidence to convict Petitioner; (2) Petitioner's sentence was improperly enhanced; and (3) Petitioner was improperly denied an evidentiary hearing on his petition for post-conviction relief.
On April 7, 2005, Respondents filed their Answer (#7) arguing that Petitioner's grounds for relief are unexhausted and procedurally defaulted. In particular, as to Ground 1(a), the assertion that Petitioner received ineffective assistance, Respondents argue that the claim was not fairly presented to the Arizona Court of Appeals, and is now procedurally defaulted. As to Ground 1(b), the assertion of insufficient evidence, Respondents concede that it was fairly presented to the Arizona Court of Appeals, but that the claim is without merit. Respondents also argue that this claim was not properly exhausted by presentation to the Arizona Supreme Court.
As to Ground Two (sentencing enhancement), Respondents argue that this was presented only as a state law claim in Petitioner's direct appeal, and was not presented to the Arizona Court of Appeals on post-conviction review. Accordingly, Respondents argue that this ground is unexhausted and now procedurally defaulted.
As to Ground Three (denial of evidentiary hearing), Respondents argue that by failing to present this claim in a petition for review from his PCR petition, Petitioner has failed to exhaust this claim, and it is now procedurally defaulted.
On April 20, 2006, Petitioner filed a Traverse (#8), arguing that presentation to the Arizona Court of Appeals is sufficient for exhaustion of state remedies. Petitioner also argues that his failure to properly present his claims was caused by the lack of a law library or other legal assistance in the prisons. Petitioner withdraws his Ground Three for relief. (Traverse, #8 at 5.) Accordingly, Ground Three should be dismissed with prejudice.
III. APPLICATION OF LAW TO FACTS
Respondents argue that Petitioner has failed to exhaust his state remedies on his claims, because he never fairly presented the claims to the state appellate courts. They further argue that the claims are now procedurally defaulted, and thus must be dismissed with prejudice.
A. EXHAUSTION Exhaustion Required — Generally, a federal court has authority to review a federal constitutional claim presented by a state prisoner only if available state remedies have been exhausted. Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (per curiam). The exhaustion doctrine, first developed in case law has been codified at 28 U.S.C. § 2254(b) and (c). When seeking habeas relief, the burden is on the petitioner to show that he has properly exhausted each claim. Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981) ( per curiam), cert. denied, 455 U.S. 1023 (1982).
Ordinarily, "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 pursuant to Rule 32." Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). Only one of these avenues of relief must be exhausted before bringing a habeas petition in federal court. This is true even where alternative avenues of reviewing constitutional issues are still available in state court. Brown v. Easter, 68 F.3d 1209, 1211 (9th Cir. 1995); Turner v. Compoy, 827 F.2d 526, 528 (9th Cir. 1987), cert. denied, 489 U.S. 1059 (1989). "In cases not carrying a life sentence or the death penalty, `claims of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.'" Castillo v. McFadden, 399 F.3d 993, 998 (9th Cir. 2005) (quoting Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999)).
Respondents argue that the reasoning of Swoopes was undermined by Baldwin v. Reese, 541 U.S. 27 (2004). However, Castillo was decided after Baldwin, leaving this Court to conclude that the Ninth Circuit has found Swoopes to have survived Baldwin. Petitioner's Claims Not Exhausted — Respondents argue and the record reflects that Petitioner did not present the federal claims raised in this Petition to the state appellate courts. The only appellate filing made by Petitioner was his direct appeal.
Because petitioner did not seek review from the Arizona Court of Appeals on the denial of his petition for post-conviction relief, that proceeding did not result in the exhaustion of his state remedies. Accordingly, it is only the claims presented in Petitioner's direct appeal that can qualify as having been exhausted.
Ineffective Assistance of Counsel Claim Not Exhuasted — Petitioner's Ground 1(a) arguing that defense counsel's was ineffective in refusing to call Petitioner to testify, was not fairly presented on direct appeal. The only claim of ineffective assistance raised by Petitioner on direct appeal was based on counsel's failure to interview jurors. Accordingly, this ground for relief was not properly exhausted.
Insufficient Evidence Claim Exhausted — Petitioner's Ground 1(b) argues that there was not sufficient evidence to convict Petitioner on the aggravated assault convictions. Respondents concede that this claim was fairly presented to the Arizona Court of Appeals, but argue that presentation to the Arizona Supreme Court was also required. For the reasons discussed above, presentation to the lower court was sufficient, and this claim must be deemed properly exhausted.
Sentence Enhancement Claim Not Exhausted — Petitioner's Ground 2 argues that his sentence was improperly enhanced. Respondents argue that although Petitioner challenged his sentence in his direct appeal, Petitioner's presented no federal claim to the Arizona Court of Appeals. Indeed, Appellate counsel's opening brief raised no attack on Petitioner's sentencing. (Exhibit C at 5-6.) Petitioner's Supplemental Brief on appeal argued only that "it was fundamental error to sentence defendant, with two prior's without proof by the state." (Exhibit D at 1.) In support of this claim, Petitioner did not cite to any federal authorities, federal cases, or federal constitutional provisions or argue any federal legal theories.
Petitioner's Supplemental Brief did cite to: State v. Armendariz, 127 Ariz. 422, 621 P.2d 928 (App. 1980); State v. Hickman, 194 Ariz. 248, 980 P.2d 501, 295 Ariz. Adv. Rep. 16 (1999); State v. Taylor, 187 Ariz. 567, 571-72, 931 P.2d 1077, 1081-82 (App. 1996); and State v. Johnson, 183 Ariz. 358, 903 P.2d 1116 (App. 1995). (Exhibit D at 7-8.) "[A] citation to a state case analyzing a federal constitutional issue serves the same purpose as a citation to a federal case analyzing such an issue." Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003). But see Howell v. Mississippi, 543 U.S. 440, 443-444 (2005) (on certiorari from state supreme court) ("petitioner's daisy chain — which depends upon a case that was cited by one of the cases that was cited by one of the cases that petitioner cited — is too lengthy to meet this Court's standards for proper presentation of a federal claim"). However, none of Petitioner's state citations raised a federal claim.
Armendariz is an analysis of the appropriate interpretation of the Arizona sentencing statutes, as is Johnson. Likewise, Hickman involved an analysis of those statutes, albeit under a review for "fundamental error."
Taylor does address a "due process argument" based on a probation revocation on a violation not alleged in the petition for revocation. 187 Ariz. at 570, 931 P.2d at 1080. However, that decision does not differentiate whether that "due process argument" was based on federal or state law. See Emmett McLoughlin Realty, Inc. v. Pima County, ___ P.3d ___, 471 Ariz. Adv. Rep. 13 (Ariz.App. Div. 2, 2006) ("The United States and Arizona Constitutions prohibit the state from depriving any person of `life, liberty, or property, without due process of law.'U.S. Const. Amend. XIV; see also Ariz. Const. art. II, § 4."). It is not enough that a "somewhat similar state law claim was made." Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam). See also Howell, 543 U.S. at 444 ("[a]ssuming, without deciding, that identical standards might overcome a petitioner's failure to identify his claim as federal").
In any event, Petitioner cited Taylor solely for the proposition that the court could consider his attacks on sentencing as "fundamental error" notwithstanding his failure to raise it trial. (Exhibit D, Supplemental Brief at 8.)
In short, nothing in Petitioner's Supplemental Brief would have alerted the Arizona Court of Appeals to an intent to assert a federal constitutional claim.
Summary re Exhaustion — With the exception of his claim of insufficient evidence, Petitioner failed to fairly present his federal claims to the Arizona Court of Appeals. Accordingly, those grounds for relief were not properly exhausted. Ordinarily, that would mandate the dismissal of those claims, without prejudice. Johnson v. Lewis, 929 F.2d 460, 463 (9th Cir. 1991).
B. PROCEDURAL DEFAULT
However, Respondents argue that the dismissal must be with prejudice because Plaintiff has not merely failed to exhaust, but has procedurally defaulted his un-presented claims. As an alternative to presenting his claims to the highest state court, a petitioner can satisfy the exhaustion requirement by demonstrating that no state remedies remained available at the time the federal habeas petition was filed. Engle v. Isaac, 456 U.S. 107, 125 (n. 28) (1982); White v. Lewis, 874 F.2d 599, 602 (9th Cir. 1989). If, however, the bar to presenting the claims is of the petitioner's own making, then he may be precluded from seeking habeas relief.
If state remedies are not available because the petitioner failed to comply with state procedures and thereby prevented the highest state court from reaching the merits of his claim, then a federal court may refuse to reach the merits of that claim as a matter of comity.Buffalo v. Sunn, 854 F.2d 1158, 1163 (9th Cir. 1988). This failure to comply with reasonable state procedures is usually characterized as "procedural default." Where an unexhausted claim would clearly be barred as a result of a procedural default, dismissal without prejudice is not necessary, and the claim may be dismissed with prejudice as procedurally defaulted. Johnson v. Lewis, 929 F.2d 460 (9th Cir. 1991). Thus, to the extent that Petitioner's claims are now procedurally defaulted, they are barred from consideration.
Plaintiff can no longer seek direct review in the Arizona courts. Under Ariz.R.Crim.P. 31.3, the time for filing a direct appeal expires twenty days after entry of the judgment and sentence. Moreover, the Arizona Rules of Criminal Procedure do not provide for a successive direct appeal. See generally Ariz.R.Crim.P. 31.
And, Petitioner can no longer seek review of his denied PCR petition. See Ariz.R.Crim.P. 32.9(c) (petition for review must be filed "within thirty days after the final decision of the trial court on the petition for post-conviction relief").
Similarly, Plaintiff can no longer seek review by a new petition for post-conviction relief. Ariz.R.Crim.P. 32.4 requires that petitions for post-conviction relief (other than those which are "of-right") be filed "within ninety days after the entry of judgment and sentence or within thirty days after the issuance of the order and mandate in the direct appeal, whichever is the later." See State v. Pruett, 185 Ariz. 128, 912 P.2d 1357 (App. 1995) (applying 32.4 to successive petition). While Rule 32.4(a) does not bar dilatory claims if they fall within the category of claims specified in Ariz.R.Crim.P. 32.1(d) through (h), Petitioner has not asserted that any of these exceptions are applicable to him.
Accordingly, it appears that Petitioner's unexhausted claims are procedurally defaulted. Dismissal with prejudice of a procedurally barred or procedurally defaulted habeas claim is generally proper absent "cause and prejudice" to excuse the default. Reed v. Ross, 468 U.S. 1, 11 (1984); Tacho v. Martinez, 862 F.2d 1376, 1380 (9th Cir. 1988). Therefore, Petitioner's Grounds 1(a) (ineffective assistance), and Ground Two (sentence enhancement) must be dismissed with prejudice.
Cause and Prejudice — If the habeas petitioner has procedurally defaulted on a claim, he may still obtain federal habeas review of that claim upon a showing of "cause and prejudice" sufficient to excuse the default. Reed, 468 U.S. at 11. "Cause" is the legitimate excuse for the default. Thomas v. Lewis, 945 F.2d 1119, 1123 (9th Cir. 1991). "Because of the wide variety of contexts in which a procedural default can occur, the Supreme Court `has not given the term "cause" precise content.'" Harmon v. Barton, 894 F.2d 1268, 1274 (11th Cir. 1990) ( quoting Reed, 468 U.S. at 13), cert. denied, 498 U.S. 832 (1990). The Supreme Court has suggested, however, that cause should ordinarily turn on some objective factor external to petitioner, for instance:
. . . a showing that the factual or legal basis for a claim was not reasonably available to counsel, (citation omitted), or that "some interference by officials", (citation omitted), made compliance impracticable, would constitute cause under this standard.Murray v. Carrier, 477 U.S. 478, 488 (1986).
Although 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).
Petitioner argued in his Traverse (#8) that his failure to properly present his claims was caused by the lack of a law library or other legal assistance in the prisons. However, the "cause and prejudice" standard is equally applicable to untrained pro se litigants. Hughes v. Idaho State Board of Corrections, 800 F.2d 905, 908 (9th Cir. 1986) ("circumstances, although unfortunate, are nevertheless insufficient to meet the cause standard" where inmate was illiterate and his jailhouse lawyer was released before necessary appeal could be filed). Moreover, Petitioner was represented by counsel in both his direct appeal and his PCR proceeding. See Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988) (no cause shown by mentally ill inmate reliant upon jailhouse lawyers, where represented by counsel).
A pro se petitioner may be able to establish "cause" if he can establish a lack of access to the law, as opposed to a lack of knowledge of the law. See e.g. Dulin v. Cook, 957 F.2d 758 (10th Cir. 1992) (remanding for a determination of cause where a pro se petitioner's incarceration in Nevada precluded access to Utah legal materials required to challenge a Utah conviction). Cf. Whalem/Hunt v. Early, 233 F.3d 1146 (9th Cir. 2000) (holding lack of library materials may establish an "impediment" which would toll the statute of limitations applicable to habeas petitions). The petitioner must establish, however, that the lack of access resulted in an inability to assert his claims. See e.g. Thomas v. Lewis, 945 F.2d 1119 (9th Cir. 1991) (finding no "cause" where despite lack of resources generally, pro se prisoner had not shown personal deprivation, and had managed to file other adequate petitions.) Here, Petitioner may not have had counsel available to pursue a petition for review on his PCR Petition. He has not, however, offered anything to show that limitations in the resources available to him at that time precluded him from filing a petition for review.
Summary re Cause and Prejudice — Petitioner offers no "cause" which precluded him from properly exhausting his state remedies. Accordingly, the undersigned does not reach the question of "actual prejudice." See Engle, 456 U.S. at 134 n. 43.
Actual Innocence — The standard for "cause and prejudice" is one of discretion intended to be flexible and yielding to exceptional circumstances. Hughes v. Idaho State Board of Corrections, 800 F.2d 905, 909 (9th Cir. 1986). Failure to establish cause may be excused under exceptional circumstances, for instance "where a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray v. Carrier, 477 U.S. 478, 496 (1986) (emphasis added).
Here, Petitioner does not argue that he was actually innocent of the charges for which he was convicted, or even of the priors on which his sentences were based. At most, Petitioner argues that: (1) there was insufficient evidence on the aggravated assault claim, or (2) that his sentences were improperly calculated under the state's sentencing scheme.
In Sawyer v. Whitley, 505 U.S. 333 (1992), the Court extended the actual innocence exception to claims of capital sentencing error . Acknowledging that the concept of "actual innocence" did not translate neatly into the capital sentencing context, the Court limited the exception to cases in which the applicant could show "by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law." Id., at 336.
In Dretke v. Haley, 541 U.S. 386, 393-394 (2004), the Court declined to address whether this also extended to actual innocence of a non-capital sentence, in that case a three-strikes sentence. The Dretke Court noted there was a divergence of opinion among the circuits on the issue. Id. at 392.
A petitioner asserting his actual innocence of the underlying crime must show "it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence" presented in his habeas petition. Schlup v. Delo, 513 U.S. 298, 327 (1995). A showing that a reasonable doubt exists in the light of the new evidence is not sufficient. Rather, the petitioner must show that no reasonable juror would have found the defendant guilty. Id. at 329. More particularly, a finding of "actual innocence" is not to be based upon a finding that insufficient evidence to support the charge was presented at trial, but rather upon affirmative evidence of innocence. See U.S. v. Ratigan, 351 F.3d 957 (9th Cir. 2003) (lack of proof of FDIC insurance in a bank robbery case, without evidence that insurance did not exist, not sufficient to establish actual innocence). Petitioner presents no such evidence of affirmative innocence, either as to his convictions or his sentences.
C. MERITS OF INSUFFICIENT EVIDENCE CLAIM
The only properly exhausted claim raised by Petitioner is his Ground 1(b) wherein he argues that there was not sufficient evidence to convict hin on the aggravated assault charges. Petitioner argues that the evidence was insufficient to convict because a reasonable doubt arose from evidence that "Tindall was not the aggressor." (Petition, #1 at 5.) Respondents argue that substantial evidence supported the convictions. (Answer, #7 at 10-12.)
The Arizona Court of Appeals, in rejecting this claim, found that "the testimony of both victims was uncontroverted that they observed Defendant pocket the boxes of Sudafed and leave the store without paying, that Defendant brandished a knife at them and that they feared for their lives." (Exhibit E, Memorandum Decision at 8.) Based upon that factual finding, they concluded that "there was sufficient evidence from which a rational jury could have found Defendant guilty of all charges beyond a reasonable doubt." ( Id.)
Petitioner attacks the sufficiency of the intrinsic evidence introduced at trial. Accordingly, the Arizona Court of Appeal's factual finding may not be overturned by this federal habeas corpus court unless it was "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). "Or, to put it conversely, a federal court may not second-guess a state court's fact-finding process unless, after review of the state-court record, it determines that the state court was not merely wrong, but actually unreasonable." Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004). Particularly in the context of a claim that "a state-court finding is unsupported by substantial evidence in the state-court record . . . we must be convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record. Taylor, 366 F.3d at 1000. To the contrary, in this case there was ample evidence from which an appellate court could reasonably conclude that Petitioner was, in fact, the aggressor.
Mr. Joseph Haas, one of the store security guards and victims, testified that he began chasing Petitioner, after Petitioner left the store with shoplifted merchandise. (Exhibit A, R.T. 10/02/03 at 55-56.) He continued chasing him, was joined by security guard and victim Mr. Tom Boaz, and continued pursuit until Petitioner fell to the ground. ( Id. at 57.) When Petitioner arose, he had a knife in his hand and was welding it in a threatening manner at both security guards, and threatening to kill them. ( Id. at 58-60.) Petitioner continued to come at the victims with the knife even after they began to retreat towards the store. ( Id. at 60-61.) As Petitioner came toward Mr. Haas, Mr. Haas pushed him down, and when Petitioner started raising up again with the knife, Mr. Haas roundhouse kicked him in the head. Petitioner then fell to the ground, and the two security guards restrained and then handcuffed him. ( Id. at 66-68.) As they transported Petitioner back into the store, Petitioner kicked Mr. Boaz in the groin. ( Id. at 91.)
Mr. Thomas Boaz, the other store security guard, testified that he followed Mr. Haas and Petitioner out of the store, into the parking lot. As they were running after Petitioner, Petitioner tripped and fell. ( Id. at 101-102.) When Petitioner rolled over, he had a knife in his hand which he pointed at Mr. Boaz. Petitioner rose up and began moving toward Mr. Boaz, threatening him. ( Id. at 103-105.) Petitioner then lunged at Mr. Haas, who pushed him down and kicked him in the face. The two then restrained and handcuffed Petitioner. ( Id. at 106-107.) They then escorted Petitioner back to the store, and on the way Petitioner kicked Mr. Boaz in the groin. ( Id. at 108.)
The only other witness to testify was the arresting officer, and there was no evidence to contradict the victims' testimony. In closing arguments defense counsel could point to little more than apparent irregularities in the testimony, e.g. that the knife had been placed on the floor in the store offices after Petitioner was detained, that Petitioner had another knife in his pocket when he was searched by police, etc. (Exhibit B, R.T. 10/3/03 at 26-27.)
Moreover, even if is assumed that Petitioner was not the original aggressor, there was ample evidence to sustain his conviction. Although Petitioner argues he was not the aggressor, he does not deny his assault on the victims. While Arizona recognizes self-defense as a complete justification to a charge of aggravated assault, the defendant must be acting in response to "unlawful physical force." Ariz. Rev. Stat. § 13-404(a). The only conduct by the victims that would justify that defense would have been their attempts to apprehend Petitioner in the course of his shoplifting. That would not have been "unlawful physical force," inasmuch as Arizona also recognizes the lawful right to use physical force (short of deadly physical force) to prevent the theft of property or in the course of making what is believed to be a lawful arrest. Ariz. Rev. Stat. §§ 13-408 (defense of property) and 13-409 (law enforcement). Accordingly, any aggression by the victims would have been "lawful" and would not have formed the basis for Petitioner's apparent claim of self-defense.
Further, Arizona's self-defense justification is an affirmative defense, and the absence thereof is not an element of the offense which the state must prove. State v. Casey, 205 Ariz. 359, 366, 71 P.3d 351, 358 (2003). Accordingly, evidence on the aggressor or the order of aggression was not necessary to the prosecution proving its case, and the burden of proving such matters as part of a claim of self-defense fell on Petitioner. Id.
In short, Petitioner fails to show any deficiency in the evidence supporting his conviction. Accordingly, the state court's findings on this issue have not been shown to have been unreasonable, and may not be disturbed. That finding shows that there was substantial evidence of Petitioner's guilt, i.e. the uncontroverted testimony of the victims. As such, Petitioner's claim for relief on the basis of insufficient evidence must be denied.
D. SUMMARY AND DISPOSITION
Ground Three has been withdrawn by Petitioner and should be dismissed with prejudice. Grounds 1(a) and 2 for relief were not properly exhausted, and they are now procedurally defaulted. Petitioner has failed to show cause to excuse his procedural default, or actual innocence to allow this Court to consider his claims not withstanding his procedural default. Accordingly, these grounds for relief must also be dismissed with prejudice. Reed, 468 U.S. at 11. Petitioner's Ground 1(b) (insufficient evidence) is without merit, and should be denied.
IV. RECOMMENDATION
IT IS THEREFORE RECOMMENDED that Grounds for Relief 1(b) (insufficient evidence) of the Petitioner's Petition for Writ of Habeas Corpus, filed February 2, 2006 (#1) be DENIED. IT IS FURTHER RECOMMENDED that the remainder of the Petitioner's Petition for Writ of Habeas Corpus, filed February 2, 2006 (#1) be DISMISSED WITH PREJUDICE.
V. EFFECT OF RECOMMENDATION
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), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have ten (10) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See also Rule 8(b), Rules Governing Section 2254 proceedings. Thereafter, the parties have ten (10) days within which to file a response to the objections. Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) ( en banc).