No. CV 17-00908-PHX-ROS (DMF)
REPORT AND RECOMMENDATION
TO THE HONORABLE ROSLYN O. SILVER, SENIOR UNITED STATES DISTRICT JUDGE:
On March 27, 2017, Jorge Alejandro Ventura-Victoria ("Petitioner" or "Ventura-Victoria") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("Petition") challenging his convictions in the Maricopa County Superior Court. (Doc. 1) Respondents filed a response on January 18, 2018. (Doc. 14) Petitioner, proceeding pro se, did not file a reply. For the reasons set forth below, the Court recommends that Ventura-Victoria's Petition be denied and dismissed with prejudice.
A. Indictment and guilty plea
Petitioner was indicted in June 2014 on six counts of sexual conduct with a minor under the age of 15, and two counts of molestation of the minor. (Doc. 14-1 at 12-15) In February 2015, Petitioner accepted a plea offer and pleaded guilty to one count of Attempted Sexual Conduct with a Minor, one count of Molestation of a Child, and one count of Attempted Sexual Conduct with a Minor. (Id. at 35-38, 40-51) Petitioner was sentenced to terms of supervised probation on two counts, and on the third count was sentenced to a mitigated term of 12 years' imprisonment and lifetime supervised probation upon discharge from prison, and was required to register as a sex offender. (Doc. 14-2 at 35-39)
B. Post-Conviction Relief action
In July 2015, Petitioner filed a Notice of Post-Conviction Relief ("PCR"), in which he asserted his counsel was ineffective during his sentencing. (Doc. 14-3 at 2-4) He was appointed counsel. (Id. at 6) In November 2015, while he was represented by counsel, Petitioner filed a pro se petition for PCR in the superior court, asserting numerous grounds for relief that he identified by checking boxes on a standard form. (Id. at 21-22) In a November 2015 order, the superior court advised Petitioner that it would take no action on the pro se petition because he already had an ongoing Rule 32 PCR petition pending, and he was represented by counsel. (Id. at 27
In March 2016, Petitioner's appointed counsel filed a notice of completion of PCR review, advising the court he had reviewed the record and that, after discussing the case with Petitioner, he was unable to identify any colorable claims to raise. (Id. at 32-33) The superior court granted Petitioner until May 13, 2016 to file a pro se petition. (Id. at 35-36) After Petitioner failed to file a petition by the deadline, the superior court dismissed his PCR action on June 23, 2016. (Id. at 38)
Petitioner filed a notice of direct appeal with the Arizona Court of Appeals (Id. at 40), which the court dismissed because he had entered a plea agreement (Id. at 43). Subsequently, Ventura-Victoria filed a petition for review in the court of appeals, arguing that the trial court had erred in sentencing him, that his trial counsel provided ineffective assistance, and that his confession was unconstitutional. (Id. at 45-48) Petitioner requested "a reduction of sentence without overturning [his] conviction." (Id. at 47) The court of appeals dismissed the petition for review as untimely. (Id. at 50)
II. LEGAL FRAMEWORK
A. Exhaustion of Remedies & Procedural Default
A state prisoner must properly exhaust all state court remedies before this Court may grant an application for a writ of habeas corpus. 28 U.S.C. § 2254(b)(1), (c); Duncan v. Henry, 513 U.S. 364, 365 (1995); Coleman v. Thompson, 501 U.S. 722, 731 (1991). Arizona prisoners properly exhaust state remedies by fairly presenting claims to the Arizona Court of Appeals in a procedurally appropriate manner. O'Sullivan v. Boerckel, 526 U.S. 838, 843-45 (1999); Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999). Arizona's "established appellate review processes" consist of a direct appeal and a PCR proceeding. See Ariz. R. Crim. P. 31, et. seq. and Rule 32, et. seq.; see also Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994) ("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.").
To be fairly presented, a claim must include a statement of the operative facts and the specific federal legal theory. Baldwin v. Reese, 541 U.S. 27, 32-33 (2004); Galvan v. Alaska Dep't Corr., 397 F.3d 1198, 1204-05 (9th Cir. 2005) ("To exhaust a federal constitutional claim in state court, a petitioner has to have, at the least, explicitly alerted the court that she was making a federal constitutional claim.").
A claim can also be subject to an express or implied procedural bar. Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). An express procedural bar exists if the state court denies or dismisses a claim based on a procedural bar "that is both 'independent' of the merits of the federal claim and an 'adequate' basis for the court's decision." Harris v. Reed, 489 U.S. 255, 260 (1989); Stewart v. Smith, 536 U.S. 856, 860 (2002) (Arizona's "Rule 32.2(a)(3) determinations are independent of federal law because they do not depend upon a federal constitutional ruling on the merits"); Johnson v. Mississippi, 486 U.S. 578, 587 (1988) ("adequate" grounds exist when a state strictly or regularly follows its procedural rule). An implied procedural bar exists if a claim was not fairly presented in state court and no state remedies remain available to the petitioner. Teague v. Lane, 489 U.S. 288, 298-99 (1989); Rose v. Lundy, 455 U.S. 509, 519-20 (1982); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002). / / /
B. 28 U.S.C. § 2254 Habeas Petition - Standard of Review
This Court may review a procedurally defaulted claim if the petitioner can demonstrate either cause for the default and actual prejudice to excuse the default, or a miscarriage of justice. 28 U.S.C. § 2254(c)(2)(B); Schlup v. Delo, 513 U.S. 298, 321 (1995); Coleman, 501 U.S. at 750; Murray v. Carrier, 477 U.S. 478, 495-96 (1986). "Cause" is something that "cannot be fairly attributable" to a petitioner, and the petitioner must show that this "objective factor external to the defense impeded [his] efforts to comply with the State's procedural rule." Coleman, 501 U.S. at 753 (citation and internal quotation marks omitted). To establish prejudice a "habeas petitioner must establish 'not merely that the errors at ... trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'" Murray, 477 U.S. at 494 (quoting United States v. Frady, 456 U.S. 152, 170) (1982) (emphasis in original). "Such a showing of pervasive actual prejudice can hardly be thought to constitute anything other than a showing that the prisoner was denied 'fundamental fairness' at trial." Id.
The miscarriage of justice exception to procedural default "is limited to those extraordinary cases where the petitioner asserts his [actual] innocence and establishes that the court cannot have confidence in the contrary finding of guilt." Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir. 2008) (emphasis in original). To pass through the actual innocence/Schlup gateway, a petitioner must establish his or her factual innocence of the crime and not mere legal insufficiency. See Bousley v. U.S., 523 U.S. 614, 623 (1998); Jaramillo v. Stewart, 340 F.3d 877, 882-83 (9th Cir. 2003). "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence." Schlup, 513 U.S. at 324. See also Lee v. Lampert, 653 F.3d 929, 945 (9th Cir. 2011); McQuiggin v. Perkins, 569 U.S. 383, 399 (2013) (explaining the significance of an "[u]nexplained delay in presenting new evidence"). / / /
A. Petitioner's habeas claims
Ventura-Victoria asserts three grounds for relief. (Doc. 1 at 6-8) In Ground 1, Petitioner contends that his trial attorney was ineffective for failure to argue his confession had been unconstitutional. (Doc. 1 at 6) Ground 2 covers Petitioner's claim that his 5th and 6th Amendment rights were violated when he was questioned in custody before receiving a recitation of his Miranda warning. (Id. at 7) In Ground 3, Petitioner asserts his rights under the 4th, 5th and 6th Amendments were violated when the trial court allowed admission of "illegally obtained evidence." (Id. at 8)
B. Petitioner's claims are procedurally defaulted without excuse
Petitioner procedurally defaulted the claims he asserts in his Petition when he failed to exhaust the claims in his PCR action to the state superior court. Once Petitioner failed to file a pro se PCR petition after appointed counsel notified the superior court he was unable to identify any colorable claims to assert, the superior court dismissed his PCR action. Although Petitioner eventually filed a petition for review with the Arizona Court of Appeals, the petition was untimely and the court dismissed it on procedural grounds. (Doc. 14-3 at 50) Petitioner therefore failed to present his claims "in each appropriate state court." Baldwin, 541 U.S. at 29.
Moreover, an attempt by Petitioner to return to state court to present his claims would be futile. See Ariz. R. Crim. P. 32.1(d)-(h), 32.2(a) (precluding claims not raised on direct appeal or in prior post-conviction relief petitions), 32.4(a) (time bar), 32.9(c) (petition for review must be filed within thirty days of trial court's decision). See also Coleman, 501 U.S. at 735 n.1; a federal habeas claim may be procedurally defaulted if the petitioner failed to present the claim in a necessary state court and "the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred." O'Sullivan, 526 U.S. at 848 (when time for filing state court petition has expired, petitioner's failure to timely present claims to state court results in a procedural default of those claims); Baldwin, 510 F.3d at 1138 (failure to exhaust claims in state court resulted in procedural default of claims for federal habeas purposes when state's rules for filing petition for post-conviction relief barred petitioner from returning to state court to exhaust his claims).
The subject Arizona procedural rules have been found to be consistently and regularly followed, and to be independent of federal law. Either the specific application of the rules to a claim by an Arizona court, or the rules' operation to preclude a return to state court to exhaust a claim will procedurally bar subsequent review of the merits of such a claim by a federal habeas court. See Stewart v. Smith, 536 U.S. 856, 860 (2002) ("[b]ecause the state court's determination that respondent waived his ineffective-assistance-of-counsel claim under Ariz. Rule Crim. Proc. 32.2(a) did not require an examination of the merits of that claim, it was independent of federal law.").
Petitioner failed to exhaust his claims, and his failure to fairly present the claims in the required state court has resulted in procedural default. See Ariz. R. Crim. P 32.2(a), 32.4(a). Significantly, Petitioner does not argue that procedural default of his claims is excused either by cause and resulting prejudice, or by a fundamental miscarriage of justice/actual innocence; nor does the Court's review of the record support such.
IT IS RECOMMENDED that Jorge Ventura-Victoria's Petition for Writ of Habeas Corpus (Doc. 1) be denied and dismissed with prejudice.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability should be denied because dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the ruling debatable.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment. 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 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file 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 timely file objections to any factual determinations of the Magistrate Judge will 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 Rule 72, Federal Rules of Civil Procedure.
Dated this 31st day of July, 2018.
Honorable Deborah M. Fine
United States Magistrate Judge