Opinion
CV-18-8222-PCT-MTL (JFM)
12-09-2020
Stanley Yazzie, Petitioner v. Charles L. Ryan, et al., Respondents.
REPORT & RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS
James F. Metcalf United States Magistrate Judge.
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 September 13, 2018 (Doc. 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 BACKGROUND
In disposing of Petitioner's direct appeal, the Arizona Court of Appeals described the factual background as follows:
¶2 On February 19, 2013, Yazzie was returning to his home in Phoenix after spending some time working in Albuquerque and Gallup, New Mexico. Driving west along I-40, Yazzie drank between four and twenty-four cans of beer, including 16-ounce and 24-ounce cans. Officer L. of the Department of Public Safety ("DPS") was on duty that day, near Flagstaff. Around 12:45 p.m. Officer L. backed into a closed rest area to complete paperwork. A gate blocked the westbound entrance to the rest area. Officer L. left his vehicle running with the headlights and taillights on.
¶3 Between 12:45 and 12:49 p.m., Yazzie drove off the interstate, through the gate and into the rest area where he rear-ended Officer L's clearly marked patrol vehicle. Officer L. suffered whiplash and later developed numbness in his arms and hands as a result of the collision. Officer L's patrol vehicle sustained over $1, 900 in damage. \
¶4 Officer L. saw Yazzie's heavily damaged sedan in the mirror, but before he could assess the situation, Yazzie drove off, re-entering I-40 westbound. Officer L. engaged his lights and sirens and gave chase. Yazzie swerved between lanes before exiting onto Coconino Road. Yazzie struck a concrete barrier on the exit ramp but continued to flee, running a stop sign and driving north in a southbound lane until a crossing train forced him to pull over and slow down. As Yazzie slowed to a roll, Officer L. exited his vehicle and asked Yazzie to open the door. Initially Yazzie did not respond, he stared ahead blankly as his car rolled down the road. When Officer L. raised his handcuffs to break the window, Yazzie finally opened the door. Officer L. reached into the sedan to shift it to "park" and noticed an open can of beer in the center console. Two more alcoholic beverages were in the passenger seat, and Yazzie smelled of alcohol.
¶5 In response to Officer L.' s initial questioning, Yazzie admitted to drinking, hitting Officer L.'s vehicle, and being aware that Officer L had pursued him. In subsequent field sobriety tests, Yazzie showed signs of severe impairment. At the conclusion of the field sobriety tests, a DPS officer arrested Yazzie, read him his Miranda rights, and transported him to the Coconino County Jail in Flagstaff. Yazzie consented to a breath test and officers obtained a search warrant for a blood draw. Breath tests conducted at 2:09 and 2:16 p.m. showed Yazzie's blood alcohol concentration ("BAC") to be .271 and .262 within two hours of when Yazzie last drove. See A.R.S. §§ 28-1381(A)(2), 1382(A). Analysis of Yazzie's blood, drawn at 2:51 p.m., showed his BAC to be above .280.(Exh. K, Mem. Dec. 9/9/14 at ¶¶ 2-5.) (Exhibits to the Answer, Doc. 16, are referenced herein as “Exh. ___.”)
B. PROCEEDINGS AT TRIAL
Petitioner was indicted in Coconino County Superior Court on charges or aggravated assault on an officer, failure to remain, unlawful flight, DUI, extreme DUI, and felony criminal damage. (Exh. A, Indictment.) He was appointed counsel, and proceeded to a jury trial. (Exh. B, C, M.E. R.T. 8/14, 15/2013.) He was found guilty as charged. (Exh. D, Verdicts.)
After the State and the defense rested, Yazzie agreed to forgo a Blakely hearing and stipulated to three aggravating factors in exchange for the State's withdrawal of two of five alleged aggravating factors: "Infliction or threatened infliction of serious physical injury," A.R.S. § 13-701(0)(1) (Supp. 2013), and "[a]ny other factor that the state alleges is relevant to the defendant's character or background or to the nature or circumstances of the crime." A.R.S. § 13-701(D)(25). Accordingly, the State did not raise either of these aggravators in its sentencing memorandum. At the sentencing hearing, however, the superior court found that Yazzie "threatened the infliction of serious physical injury during the commission of the offense" as one of four aggravators. The superior court also found four mitigating factors.(Exh. K, Mem. Dec. 9/9/14 at ¶ 6.) Counsel did not object. (Id. at ¶ 8.)
On October 29, 2013, Petitioner was sentenced to a combined sentence of 16.25 years in prison, consisting primarily of 11.25 years on the aggravated assault, and a consecutive 5 years on failure to remain (“leaving the scene”). (Exh. F, Sentence.)
C. PROCEEDINGS ON DIRECT APPEAL
Petitioner filed a direct appeal. Appointed counsel was unable to find a non-frivolous issue for review, and filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967) and related state authorities. Petitioner then filed a supplemental, pro per, Opening Brief (Exh. J) arguing that, in light of his stipulation with the State, the superior court abused its discretion in considering “infliction or threatened infliction of serious physical injury” for sentencing purposes, and that the court violated his stipulation.
In the absence of an objection a trial, the state court reviewed the claims for fundamental error, and found them to be without merit. The court also conducted an Anders review for reversible error, and found two sentencing errors, which it corrected without remanding. (Exh. K, Mem. Dec. 9/9/14.)
Petition then sought review by the Arizona Supreme Court (Exh. O, Pet. for Rev.), which denied review on March 2, 2015. (Exh. P, Order 3/2/15.)
D. FIRST PCR PROCEEDING
In the interim, on May 16, 2014, Petitioner filed a Notice of Post-Conviction Relief (Exh. H), which the PCR court deferred addressing until completion of direct appeal (Exh. I, Order 5/20/14).
On October 3, 2014, while the petition for review on direct appeal was pending with the Arizona Supreme Court, Petitioner filed a second PCR notice (Exh. L). On request by counsel (Exh. M, Motion) who had appeared, the PCR court again stayed consideration pending mandate on direct appeal. (Exh. N, Order 1/12/15.) After the mandate, the Court granted Petitioner's motion (Exh. Q) and lifted the stay (Exh. R, Order 5/26/15.)
Petitioner filed through counsel a Petition (Exh. S) arguing that Count 2, the failure-to-remain charge, was not adequately alleged, instructed or proven, because the offense requires proof of failure to stop at the scene, not just failure to remain. Petitioner also argued counsel was ineffective for failing to pursue the matter. Finally, Petitioner argued sentencing errors. The State opposed (Exh. T) the Petition but conceded on review that the sentence was not clear on which aggravating factors had been applied to which charges, and the factors were not uniformly applicable. The PCR Court found the petition without merit, but set a resentencing to clarify the sentencing factors. (Exh. V, Order 11/17/15.) The PCR Court clarified the time to petition for review would run from resentencing. (Exh. X, Order 1/14/16.)
E. RESENTENCING
Petitioner was resentenced on January 14, 2016, and was given a sentence of 11.75 years on the aggravated assault (an additional 0.5 years), and a consecutive, mitigated sentence of 4 years on the failure to remain charge. (Exh. Y, Sentence.)
On February 17, 2016, the Court subsequently amended again to reduce the aggravated assault back to 11.25 years. (Exhibit Z, Amend. Sent. Order.)
F. PCR PETITION FOR REVIEW
Petitioner then filed through counsel a PCR Petition for Review (Exh. AA), arguing errors in the indictment (e.g. omission of the failure to stop element of failure to remain) which denied the court jurisdiction, and ineffective assistance regarding the error and corresponding jury instructions. On October 10, 2017, the Arizona Court of Appeals granted review but summarily denied relief based on a failure to show an abuse of discretion. (Exhibit BB).
Petitioner did not seek further review. (Petition, Doc. 1 at 5.) / / / /
G. PRESENT FEDERAL HABEAS PROCEEDINGS
Petition - Petitioner's Petition asserts the following two grounds for relief: In Ground 1, Petitioner claims his due process rights were violated when he was sentenced in violation of a stipulation with the prosecution by using the infliction of injury and prior convictions. In Ground 2 he claims his trial counsel was ineffective, in violation of the Sixth and Fourteenth Amendments, for failing to object to jury instructions and failing to request an instruction on a lesser included offense. Petitioner has filed a Memorandum (Doc. 3) and a Supplement (Doc. 15) in support of his Petition.
Without the benefit of a record, the Court originally construed Ground 1 as relating solely to prior convictions. (See Order 1/8/19, Doc. 9 1-2.) Even if so limited, the analysis of the lack of jurisdiction over the claim remains the same.
Answer - On April 1, 2109, Respondents filed their Limited Answer (“Answer”) (Doc. 16). Respondents argue Petitioner's sentencing claim in Ground 1 is moot and procedurally defaulted because Petitioner was resentenced and did not again appeal. Respondents argue Grounds 2A (IAC jury instructions) and 2B (IAC lesser included) are without merit.
Supplemental Answer - On November 6, 2019, the Court reviewed the Petition and concluded that without the benefit of a record the Court had misconstrued Ground 1 as relating solely to prior convictions, and overlooked Petitioner's Ground 3. The Court summarized the claims in the Petition as follows:
- Ground 1A - due process violation based on sentencing in violation of stipulation on injury
- Ground 1B - due process violation based on aggravation of sentence based on prior convictions
- Ground 2A - ineffective assistance regarding jury instruction on failure to remain
- Ground 2B - ineffective assistance regarding failure to request lesser included offense instruction
- Ground 3A - ineffective assistance regarding failure to advise Petitioner on use of injury as aggravating factor despite stipulation
- Ground 3B - ineffective assistance regarding aggravation based on damage to the vehicle
To avoid any prejudice from failure to identify these claims in the service Order, the Court provided Respondents an opportunity to supplement their Answer to address Grounds 1(a), 3(a) and 3(b).
On November 25, 2019, Respondents filed their Supplemental Answer (Doc. 22), identifying yet another overlooked ground for relief, denominated as Ground 3C, asserting ineffective assistance regarding failure to argue that the (D)(9) and (23) aggravators only applied to Count 1 and not Count 2. (See Petition, Doc. 1 at 8A.) Respondents argue that Ground 1A is moot, and Grounds 1A and 3A, 3B, and 3C are all procedurally defaulted.
Reply - Plaintiff filed a Motion to Substitute and File Delayed Reply (Doc. 21). The Court granted that motion, substituting Respondent Shinn for Respondent Ryan, and giving Petitioner through December 30, 2019 to file his combined reply to the Answer and the Supplemental Answer. (Order 12/9/19, Doc. 23.) Petitioner has not replied.
III. APPLICATION OF LAW TO FACTS
A. 1A & 1B - SENTENCING
Respondents argue in the Answer and the Supplemental Answer that Ground 1 is a challenge based on events leading up to entry of the original sentence, and thus were rendered moot by resentencing. Respondents contend that Petitioner proffers nothing to suggest that the alleged errors arose on resentencing, only at the original sentencing. Petitioner does not refute either this characterization of the claim, or the effect. Accordingly, the undersigned construes Ground 1 as a challenge to the original sentence.
Respondents cast this contention as matter of mootness, a common confusion of related principles. Ordinarily, a habeas petition is rendered moot when the prisoner is no longer in the custody of the respondents. However, a mootness question only arises once it is determined that the court once had jurisdiction over a petition. See e.g. Henry v. Lungen, 164 F.3d 1240, 1241 (9th Cir. 1999) (distinguishing between mootness resulting from release from custody pendente lite, and lack of jurisdiction when release occurred prior to filing).
Here, the original sentence was vacated upon entry of the new sentence in January 2016. Federal courts lack jurisdiction over habeas corpus petitions unless the petitioner is “under the conviction or sentence under attack at the time his petition is filed.” Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (per curiam). Because Petitioner was no longer “in custody” under the original sentence at the time he filed his habeas petition in 2018, this Court lacks jurisdiction over the claim in Ground 1, and it must be dismissed with prejudice on that basis, rather on the basis of mootness.
B. 2A - IAC RE JURY INSTRUCTION
In Ground 2(a), Petitioner argues that trial counsel was ineffective for failing to object to the prosecution's jury instruction on the failure-to-remain charge on the basis that it did not require proof of failure to stop. Respondents argue the state court's rejection of the claim does not qualify for relief under the deferential review under 28 U.S.C. § 2254(d) for claims decided on the merits.
Where a state court has decided a claim on the merits, habeas relief is authorized only where that decision was: (1) “contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” 28 U.S.C. §2254(d)(1); or (2) “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)(2).
Petitioner raised his claim in Ground 2(a) in his PCR petition (Exh. S at 8) and again in his PCR petition for review (Exh. AA at 8). In evaluating state court decisions, the federal habeas court looks through summary opinions to the last reasoned decision. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). Here, however, neither the PCR court nor the Arizona Court of Appeals proffered any explanation for their decision. The PCR court simply opined: “The Court finds no claim presented in the petition raises a material issue of fact or law which would entitle the Defendant to relief under Rule 32, and no purpose would be served by any further proceedings.” (Exh. V, Order 11/17/1 at 1.) Here, neither state court applied a procedural bar, but simply concluded Petitioner's claims were not meritorious.
Nonetheless, application of § 2254(d) “does not require that there be an opinion from the state court explaining the state court's reasoning.” Harrington v. Richter, 562 U.S. 86, 98 (2011). “§ 2254(d) does not require a state court to give reasons before its decision can be deemed to have been “adjudicated on the merits.” Id. at 100. “Where a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief.” Id.
Here, Petitioner points to no factual or legal error in denying his claim.
Generally, claims of ineffective assistance of counsel are analyzed pursuant to Strickland v. Washington, 466 U.S. 668 (1984). In order to prevail on such a claim, Petitioner must show: (1) deficient performance - counsel's representation fell below the objective standard for reasonableness; and (2) prejudice - there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 687-88. Although the petitioner must prove both elements, a court may reject his claim upon finding either that counsel's performance was reasonable or that the claimed error was not prejudicial. Id. at 697.
Petitioner fails to show a deficient performance by counsel. Petitioner fails to show that, under Arizona law, stopping and remaining were each required elements of the offense, as opposed to alternative means of committing the same offense. The applicable statute provides:
Respondents argue that even if counsel was deficient, Petitioner cannot show prejudice because there was evidence to support the failure to stop/return. However, Respondents point only to the appellate court's factual summary. (Answer, Doc. 16 at 25 (citing Exh. K at 3).) However, the referenced summary of facts were not factual findings, but “facts in the light most favorable to sustaining the jury's verdict…resolv[ing] all inferences against Yazzie.” (Exh. K at 2, n.2.) Moreover, that summary simply reflected: “Officer L. saw Yazzie's heavily damaged sedan in the mirror, but before he could assess the situation, Yazzie drove off.” (Id. at ¶ 4.) This does not establish a failure to stop, but at most a failure to remain beyond the time that it took the victim to “assess the situation.” It may be that the evidence at trial would support a failure to stop. But Respondents fail to provide any transcripts of trial testimony to allow such a determination by this Court.
A. The driver of a vehicle involved in an accident resulting in injury to or death of a person shall:
1. Immediately stop the vehicle at the scene of the accident or as close to the accident scene as possible but shall immediately return to the accident scene.
2. Remain at the scene of the accident until the driver has fulfilled the requirements of section 28-663.
Ariz. Rev. Stat. § 28-661(A) (as amended by Laws 2012, Ch. 191 § 1, 2012 Ariz. Legis. Serv. Ch. 191). Although Petitioner argued both were required, the State argued they were not. (See Exh. T, PCR Response at 5-6 (arguing failing to stop necessarily implied failure to remain).) Neither side cited to any authority on the proposition, and the undersigned has found none. Thus, the state courts could have reasonably concluded that § 28-661(A) simply provided alternative means of committing the same offense, e.g. either failing to stop/return or failing to remain. See State v. West, 238 Ariz. 482, 490, 362 P.3d 1049, 1057 (Ariz.App. 2015) (discussing standard for analyzing whether statute describes alternative means of committing offense or separate elements). As such it would have not be necessary to have alleged or instructed the jury on each of the means, only that purportedly proven at trial. Cf. State v. Henry, 2018 WL 416286, at *4 (Ariz. App. 2018) (conviction could not be based on means not included in factual allegations of indictment).
But this Court need not resolve how the Arizona court might ultimately resolve this dispute. What is relevant to this ineffective assistance claim is that counsel could have reasonably concluded that the provisions were alternative means rather than separate elements, and thus listing both was unnecessary.
Moreover, it is not necessary for Respondents to establish that this was trial counsel's actual analysis. The court need not determine the actual reason for an attorney's actions, as long as the act falls within the range of reasonable representation. Morris v. California, 966 F.2d 448, 456-457 (9th Cir. 1991).
Thus, Petitioner fails to show that the state courts' rejection of the claim in Ground 2A justifies relief under § 2254(d), and the ground must be denied.
C. 2B - IAC RE LESSER INCLUDED
In Ground 2B, Petitioner argues that his counsel was ineffective for not requesting a lesser included offense instruction on leaving the scene of a non-injury accident or failing to stop after colliding with an unattended vehicle. Respondents argue that this claim is without merit because the state court reasonably concluded that: (1) counsel was not deficient because requesting the lesser included instructions would have been improper; and (2) Petitioner cannot show prejudice in form of a different verdict.
As with Ground 2A, this Court is faced with a summary denial on the merits at every level. Thus, Petitioner's burden is to show “there was no reasonable basis for the state court to deny relief.” Harrington, 562 U.S. at 100.
Arizona law proscribes a series of different crimes relating to the obligations of drivers involved in an accident. One concerns the obligation to stop/return and remain at an accident “resulting in injury to or death of a person, ” a Class 2, 3 or 5 felony depending upon whether the driver caused the accident and the severity of the injuries. Ariz. Rev. Stat. § 28-661. Another concerns accidents involving only damage to a vehicle that is occupied or attended, and is a Class 2 Misdemeanor. Ariz. Rev. Stat. § 28-662. The third concerns collisions with an unattended vehicle, a Class 3 misdemeanor. Ariz. Rev. Stat. § 28-664. Those involving occupied or attend vehicles describe the relevant duties while remaining by referencing Ariz. Rev. Stat. § 28-663, which requires a driver to provide information to the other parties and assistance to injured persons. Even if a driver stops and remains, the failure to provide the information is a Class 3 misdemeanor, § 28-663(B), and the failure to provide assistance is a Class 6 felony, § 28-663(C). Because § 28-664 involved unattended vehicles, it provides a separate set of requirements about leaving information about the involved driver.
Petitioner was charged with and convicted of violating the most serious of these, Ariz. Rev. Stat. § 28-661, leaving an accident involving injury or death. It was, however, the lowest form of such violation, a Class 5 felony, involving “injury other than death or serious physical injury.” Ariz. Rev. Stat. § 28-661(C). Thus, the possible related offenses were leaving an accident with damage to an occupied or attended vehicle without personal injury, § 28-662, leaving an accident with an unattended and unoccupied vehicle, § 28-664, or remaining at an accident but failing to provide information and/or assistance, § 28-663.
Petitioner does not make clear which offense he contends was the lesser included.
Respondents argue (on the basis of 28-664) that any attempt to offer a lesser included offense instruction would have been futile because there was no evidence to support a finding that the vehicle was unattended. Under Arizona law, “[a] trial court must give a lesser-included offense instruction if an offense is, in fact, a lesser-included offense of another, and the evidence supports giving the lesser-included instruction.” State v. Brown, 204 Ariz. 405, 408, 64 P.3d 847, 850 (Ct. App. 2003). Petitioner proffers nothing to show that there was any evidence that the patrol car was unoccupied or unattended. Therefore, the appears no basis for the issuance of a lesser included instruction under 28-664.
The undersigned observes that PCR appellate counsel raised a different argument than that asserted by Respondents. Counsel argued that Ariz. Rev. Stat. § 28-661 requires as a separate element a failure to stop (not just a failure to remain), and that Ariz. Rev. Stat. § 28-663 was a lesser included offense of simple failure to remain, and therefore the most the jury could have found was a violation of § 28-663 given the lack of an instruction requiring proof of a failure to stop. This argument was based on PCR counsel's reading of § 28-661(A) as requiring proof of failing to stop and failing to remain as separate, required elements of the offense. That reading was based upon general principles of statutory construction of avoiding constructions rendering statutes superfluous, and the conclusion that without a failure to stop, a mere failure to remain and comply with § 28-663 rendered § 28-661 redundant to section 28-663. (See Exh. AA, Pet. Rev. at 7-9.) The problem with PCR counsel's theory is that it ignores that § 28-663 does not require a failure to remain, only a failure to provide information or assistance. For example, a driving involved in an accident without personal injury could comply with § 28-663 by providing the required information remotely. Thus, the sections are not redundant without construing the requirement of stopping (or returning) and remaining both as elements.
For example, a driver involved in a collision on a busy freeway in rush hour might have a defense of impossibility or necessity to a violation of the stop/remain requirements of 28-661, -662, or -664. But 28-663 would still require the provision of information or aid (e.g. by reporting the collision to authorities and providing contact information to them to forward to the other driver, calling an ambulance, etc.).
If this is analysis is correct, a request for a lesser-included instruction would have been futile. Even if not correct, counsel could have reasonably concluded it was, and thus was not deficient in failing to pursue the instruction.
Accordingly, there was a reasonable basis for the state court to deny this claim. Therefore, under 28 U.S.C. § 2254(d), the claim is without merit, and Ground 2B must be denied.
D. 3A, 3B, 3C - INEFFECTIVE ASSISTANCE
In Ground 3, Petitioner raises a series of claims of ineffective assistance based on trial counsel's failure to:
- 3A - advise Petitioner on use of injury as aggravating factor despite stipulation
- 3B - challenge aggravation based on damage to the vehicle; and
- 3C - argue that the (D)(9) and (23) aggravators only applied to Count 1 and not Count 2.
Respondents argue these claims are all procedurally defaulted.
1. Claims Unexhausted
Generally, a federal court has authority to review a state prisoner's claims only if available state remedies have been exhausted. Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (per curiam); 28 U.S.C. § 2254(b) and (c). 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).
Ordinarily, to exhaust his state remedies, the petitioner must have fairly presented his federal claims to the state courts. “A petitioner fairly and fully presents a claim to the state court for purposes of satisfying the exhaustion requirement if he presents the claim: (1) to the proper forum, (2) through the proper vehicle, and (3) by providing the proper factual and legal basis for the claim.” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005). “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)). Because these claims are based on ineffective assistance of counsel, they must have been fairly presented to the Arizona Court of Appeals in Petitioner' PCR Petition for Review.
Petitioner did raise a claim of ineffective assistance in his PCR Petition for Reivew. (See Exh. AA, Pet. Rev, at 8 et seq.) But the only claim asserted was that trial counsel was ineffective for failing to object to the instruction on leaving the scene on the basis that it did not require the element of “failing to stop” at the scene (as opposed to just leaving after stopping without providing the requisite information etc.). That is not the claim raised in Grounds 3A, 3B and 3C. Ineffective assistance claims are not fungible, but must each be specifically argued. See Pappageorge v. Sumner, 688 F.2d 1294, 1295 (9th Cir. 1982) (presentation of “additional facts of attorney incompetence” transformed claim into one not presented to state court); and Carriger v. Lewis, 971 F.2d 329, 333-34 (9th Cir. 1992) (rejecting argument that presentation of any claim of ineffectiveness results in fair presentation of all claims of ineffective assistance).
Therefore, Petitioner failed to fairly present his claims in Grounds 3A, 3B, and 3C.
2. Procedural Default
Ordinarily, unexhausted claims are dismissed without prejudice. Johnson v. Lewis, 929 F.2d 460, 463 (9th Cir. 1991). However, where a petitioner has failed to properly exhaust his available administrative or judicial remedies, and those remedies are now no longer available because of some procedural bar, the petitioner has "procedurally defaulted" and is generally barred from seeking habeas relief. Dismissal with prejudice of a procedurally defaulted habeas claim is generally proper. Reed v. Ross, 468 U.S. 1, 11 (1984).
Respondents argue that Petitioner may no longer present his unexhausted claims to the state courts. Respondents rely upon Arizona's preclusion bar, set out in Ariz. R. Crim. Proc. 32.2(a) and time limit bar, set out in Ariz. R. Crim. P. 32.4. (Supp. Answer, Doc. 22 at 5-6.)
Remedies by Direct Appeal - 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, no provision is made for a successive direct appeal. Accordingly, direct appeal is no longer available for review of Petitioner's unexhausted claims.
Remedies by Post-Conviction Relief - Under Arizona's waiver and timeliness bars, Petitioner can no longer seek review by a subsequent PCR Petition.
Arizona recently adopted substantial changes to the procedural rules governing its Post-Conviction Relief procedures, effective January 1, 2020. See Ariz. Sup. Ct. Order No. R-19-0012. Petitioner's procedural defaults occurred prior to that date, and the undersigned has identified no portion of the amendments which would effectively revive his ability to present his claims to the Arizona Court of Appeals. Consequently, reference is made to the rules applicable at the time of his procedural defaults.
Waiver Bar - Under the rules applicable to Arizona's post-conviction process, a claim may not ordinarily be brought in a petition for post-conviction relief that "has been waived at trial, on appeal, or in any previous collateral proceeding." Ariz.R.Crim.P. 32.2(a)(3). Under this rule, some claims may be deemed waived if the State simply shows "that the defendant did not raise the error at trial, on appeal, or in a previous collateral proceeding." Stewart v. Smith, 202 Ariz. 446, 449, 46 P.3d 1067, 1070 (2002) (quoting Ariz.R.Crim.P. 32.2, Comments). But see State v. Diaz, 236 Ariz. 361, 340 P.3d 1069 (2014) (failure of PCR counsel, without fault by petitioner, to file timely petition in prior PCR proceedings did not amount to waiver of claims of ineffective assistance of trial counsel).
For others of "sufficient constitutional magnitude," the State "must show that the defendant personally, ''knowingly, voluntarily and intelligently' [did] not raise' the ground or denial of a right." Id. That requirement is limited to those constitutional rights “that can only be waived by a defendant personally.” State v. Swoopes, 216 Ariz. 390, 399, 166 P.3d 945, 954 (App.Div. 2, 2007). Indeed, in coming to its prescription in Stewart v. Smith, the Arizona Supreme Court identified: (1) waiver of the right to counsel, (2) waiver of the right to a jury trial, and (3) waiver of the right to a twelve-person jury under the Arizona Constitution, as among those rights which require a personal waiver. 202 Ariz. at 450, 46 P.3d at 1071. Claims based upon ineffective assistance of counsel are determined by looking at “the nature of the right allegedly affected by counsel's ineffective performance. Id. Here, none of Petitioner's claims of ineffective assistance have at their core the kinds of claims within the types identified as requiring a personal waiver.
Timeliness Bar - Even if not barred by preclusion, Petitioner would now be barred from raising his claims by Arizona's time bars. 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, and noting that first petition of pleading defendant deemed direct appeal for purposes of the rule). That time has long since passed.
Exceptions - Rules 32.2 and 32.4(a) do not bar dilatory claims if they fall within the category of claims specified in Ariz.R.Crim.P. 32.1(d) through (h). See Ariz. R. Crim. P. 32.2(b) (exceptions to preclusion bar); Ariz. R. Crim. P. 32.4(a) (exceptions to timeliness bar). Petitioner has not asserted that any of these exceptions are applicable to his claims. Nor does it appear that such exceptions would apply. Paragraph 32.1(d) (expired sentence) generally has no application to an Arizona prisoner who is simply attacking the validity of his conviction or sentence. Where a claim is based on "newly discovered evidence" that has previously been presented to the state courts, the evidence is no longer "newly discovered" and paragraph (e) has no application. Here, Petitioner has long ago asserted the facts underlying his claims. Paragraph (f) has no application where the petitioner filed a timely notice of post-conviction relief. Paragraph (g) has no application because Petitioner has not asserted a change in the law since his last PCR proceeding. Finally, paragraph (h), concerning claims of actual innocence, has no application to the procedural claims Petitioner asserts in this proceeding.
Therefore, none of the exceptions apply, and Arizona's time and waiver bars would prevent Petitioner from returning to state court. Thus, Petitioner's claims that were not fairly presented are all now procedurally defaulted.
3. Cause and Prejudice
If the habeas petitioner has procedurally defaulted on a claim, or it has been procedurally barred on independent and adequate state grounds, he may not obtain federal habeas review of that claim absent a showing of “cause and prejudice” sufficient to excuse the default. Reed v. Ross, 468 U.S. 1, 11 (1984).
"Cause" is the legitimate excuse for the default. Thomas v. Lewis, 945 F.2d 1119, 1123 (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). 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, or that "some interference by officials", made compliance impracticable, would constitute cause under this standard.Murray v. Carrier, 477 U.S. 478, 488 (1986) (citations omitted).
Petitioner has not replied to Respondents' assertions of procedural default, and his Petition proffers nothing to show cause to excuse his procedural defaults, but instead argues he presented his claims to the Arizona Court of Appeals. (Petition, Doc. 1 at 6-8.) The undersigned does not undertake to consider any bases for cause sua sponte.
Both "cause" and "prejudice" must be shown to excuse a procedural default, but 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 has filed to establish cause for his procedural default. Accordingly, this Court need not examine the merits of Petitioner's claims or the purported "prejudice" to find an absence of cause and prejudice.
4. Actual Innocence
The standard for “cause and prejudice” is one of discretion intended to be flexible and yielding to exceptional circumstances, to avoid a “miscarriage of justice.” Hughes v. Idaho State Board of Corrections, 800 F.2d 905, 909 (9th Cir. 1986). Accordingly, failure to establish cause may be excused “in an extraordinary case, 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). Petitioner makes no assertion that no reasonable juror would have found him guilty.
5. Conclusion
Petitioner's procedurally defaulted claims in Grounds 3A, 3B, and 3C must be dismissed with prejudice.
E. SUMMARY
Grounds 1A and 1B relate to a sentence under which Petitioner was no longer in custody at the time of his Petition, and thus the Court lacks jurisdiction over those claims and they must be dismissed with prejudice. Grounds 2A and 2B are without merit and must be denied. Grounds 3A, 3B and 3C are procedurally defaulted and must be dismissed with prejudice.
IV. CERTIFICATE OF APPEALABILITY
Ruling Required - Rule 11(a), Rules Governing Section 2254 Cases, requires that in habeas cases the “district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Such certificates are required in cases concerning detention arising “out of process issued by a State court”, or in a proceeding under 28 U.S.C. § 2255 attacking a federal criminal judgment or sentence. 28 U.S.C. § 2253(c)(1).
Here, the Petition is brought pursuant to 28 U.S.C. § 2254, and challenges detention pursuant to a State court judgment. The recommendations if accepted will result in Petitioner's Petition being resolved adversely to Petitioner. Accordingly, a decision on a certificate of appealability is required.
Applicable Standards - The standard for issuing a certificate of appealability (“COA”) is whether the applicant has “made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id.
Standard Not Met - Assuming the recommendations herein are followed in the district court's judgment, that decision will be in part on procedural grounds, and in part on the merits. Under the reasoning set forth herein, jurists of reason would not find it debatable whether the district court was correct in its procedural ruling, and jurists of reason would not find the district court's assessment of the constitutional claims debatable or wrong.
Accordingly, to the extent that the Court adopts this Report & Recommendation as to the Petition, a certificate of appealability should be denied.
V. RECOMMENDATION
IT IS THEREFORE RECOMMENDED:
(A) Grounds 1A, 1B, 3A, 3B, and 3C of Petitioner's Petition for Writ of Habeas Corpus, (Doc. 1) be DISMISSED WITH PREJUDICE.
(B) The remainder of Petitioner's Petition for Writ of Habeas Corpus (Doc. 1), including Grounds 2A and 2B, be DENIED.
(C) To the extent the foregoing findings and recommendations are adopted in the District Court's order, a Certificate of Appealability be DENIED.
VI. 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 fourteen (14) 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 fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations 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), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”