Opinion
CV-19-5862-PHX-ROS (JFM)
06-30-2021
Benny David Gibson, Petitioner v. David Shinn, et al., Respondents.
REPORT & RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS
James F. Metcalf United States Magistrate Judge
I. MATTER UNDER CONSIDERATION
Petitioner has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (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 AND PROCEDURAL BACKGROUND
Petitioner challenges his imprisonment pursuant to a 10-year prison sentence imposed upon violation of probation. In disposing of Petitioner's appeal of his probation violation proceedings, the Arizona Court of Appeals summarized the factual and procedural background as follows:
¶2 Gibson pled guilty in 2016 to three counts of attempted child abuse, class three felonies and dangerous crimes against children. The superior court sentenced him to prison for Count 3 to be followed by lifetime supervised probation for Counts 1 and 8.
¶3 Gibson was discharged from prison in February 2018. A probation officer promptly met with Gibson and reviewed with him the conditions of his probation, including conditions that Gibson receive prior approval from the probation department before changing his residence (Condition 7), actively participate and
cooperate in counseling as determined by the probation department (Condition 11), and not consume alcohol (Condition 16).
¶4 The state petitioned to revoke Gibson's probation in October 2018. At the initial appearance on October 30, the court found Gibson indigent and set the matter for a November 7 hearing. The court learned at the November 7 hearing that the public defender's office had not yet assigned Gibson counsel. The court therefore reset the matter for November 14. At the November 14 hearing, Gibson was arraigned and unsuccessfully moved for dismissal under Ariz. R. Crim. P. (“Rule”) 27.8(a)(1), which requires arraignment no later than seven days after the initial appearance.
¶5 The matter proceeded to a November 26 violation and disposition hearing at which the state presented evidence of the following facts. On six occasions between March and October 2018, the probation officer directed Gibson to begin domestic violence counseling, but Gibson did not do so. Gibson also failed to obtain prior approval before signing a lease for a new residence in June, and in October he disclosed-and a breathalyzer test confirmed-that he had consumed alcohol.
¶6 The court found that Gibson had violated Conditions 7, 11, and 16. The court reinstated lifetime probation on Count 8 but revoked probation on Count 1 and sentenced Gibson to a ten-year prison term with credit for 28 days of presentence incarceration.
(Exh. V, Mem. Dec. 12/26/19 at ¶¶ 2-6.) (Exhibits to the Answer (Doc. 75), are referenced herein as “Exh. __.”)
B. PROCEEDINGS ON DIRECT APPEAL
On December 7, 2018, Petitioner filed a notice of direct appeal. (Exh. S, Not. App.) Appointed counsel was unable to find an issue for review and filed a brief (Exh. T) pursuant to Anders v. California, 386 U.S. 738 (1967) and related state cases. Petitioner filed a pro per Opening Brief (Exh. U), raising various objections. The Arizona Court of Appeals rejected the claims raised, and after reviewing the record for “fundamental error, ” found none. The court did note a “misstatement” in the trial court's order and corrected it. (Exh. V, Mem. Dec. 12/26/19 at ¶¶ 1.) Petitioner sought review by the Arizona Supreme Court (Exh. W), which summarily denied review on June 29, 2020 (Exh. X).
C. PROCEEDINGS ON POST-CONVICTION RELIEF
In the interim, on January 10, 2019, Petitioner filed a Notice of Post-Conviction Relief. (See Exh. Z, Not. Compl. Rev. at 2.) Counsel was appointed who filed a Notice of Completion (Exh. Z) indicating an inability to find an issue for review. Petitioner filed a Pro Per Petition (Exh. AA) raising a series of claims which the PCR court summarized as “1) excessive bail; 2) communication with probation officer; 3) lack of money to start and complete domestic violence classes; 4) no crime or criminal action; 5) first technical violation; and 6) Rule 27.8 violation, ” and a claim of ineffective assistance of counsel. (Exh. DD, M.E. 3/9/20 at 1.) The PCR court rejected the ineffective assistance claim on the merits, and the balance of claims as not being colorable. (Id. at 1-2.)
Petitioner filed a bare request for review (Exh. EE) by the Arizona Court of Appeals. After Petitioner failed to timely file a proper petition, the Arizona Court of Appeals dismissed the petition. (Exh. FF, Order 6/1/20.) Subsequently, however, the court issued and Order reinstating review and setting a deadline of August 26, 2020 for Petitioner to file a compliant petition for review. (Exh. GG, Order 6/12/20.) The parties have provided no evidence that a new petition has been filed or that additional review on the merits of any claims was undertaken in that proceeding.
D. PRESENT FEDERAL HABEAS PROCEEDINGS
Petition - In the meantime, on December 19, 2019, Petitioner (then and presently incarcerated in the Arizona State Prison Complex at Florence, Arizona), commenced the current case by filing his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). (See Order 3/19/20, Doc. 16.) Petitioner's Petition “raises one ground for relief in which he claims his Fifth, Eighth, and Fourteenth Amendment rights were violated because the state court did not have jurisdiction, his conviction was ‘obtained under a[n] unconstitutional statute,' and his sentences were imposed ‘without statutory authorization.'” (Id. at 2.) The factual essence of Petitioner's claim is that the state statutes did not authorize the imposition of both a sentence of imprisonment and a sentence of probation.
Petitioner's legal arguments appear to be grounded in a line of Arizona cases finding combined sentences unauthorized by state law. See e.g. State v. Pakula, 113 Ariz. 122, 124, 547 P.2d 476, 478 (1976) (no statutory authority for prison and probation term); and State v. Jordan, 120 Ariz. 97, 584 P.2d 561 (1978) (same). (See e.g. Exh. AA, Pro Per PCR Pet. at 2.) However, the Arizona Supreme Court quickly retreated from the position taken in those cases. See State v. Jones, 124 Ariz. 24, 601 P.2d 1060 (1979) (“we misread the legislative intent in Pakula…when we held that a judge could not, even when strictly limited to those cases of multi-count single indictments, impose a prison term and probation at the same time”). See also State v. Bowsher, 225 Ariz. 586, 590, ¶ 20, 242 P.3d 1055, 1059 (2010) (“trial courts have discretion to make terms of probation consecutive, whether or not the charges on which the convictions are based were in the same indictment or separate indictments”).
Petitioner also filed various motions (Docs 9, 10, and 11). The Court reasoned: “In his Motions and Notices, Petitioner submits various documents filed in state court and asks the court to consider them as part of his habeas petition. The Court will grant the Motions and consider the attached documents as exhibits to the habeas petition.” (Id. at 2.) The Court ordered: “Petitioner's Motions (Docs. 9, 10, and 11) are granted; the Court will treat the attached state court documents as exhibits to the Petition.”
Response - On June 29, 2020 Respondents filed their Limited Answer (Doc. 75). Respondents argue that Petitioner has not properly exhausted his state remedies on his claim. Although Petitioner presented his federal claim to the Arizona Supreme Court on direct review, Respondents argue he failed to first present his federal claim to the Arizona Court of Appeals. And, although Petitioner's petition for review in his PCR proceeding was still pending, Respondents argue Petitioner failed to first raise his claim to the PCR court, and while he referenced in his PCR Reply a constitutional violation, he did not identify it as a violation of the U.S. Constitution, and in any event raising it in a reply was not fair presentation. Respondents argue that Petitioner has now procedurally defaulted his state remedies under Arizona's waiver and timeliness bars.
Respondents further argue that to the extent Petitioner might seek a stay to attempt to exhaust his state remedies, he fails to meet the good cause and meritorious claims requirements under Rhines v. Weber, 544 U.S. 269 (2005). In connection with that analysis, Respondents argue Petitioner's claims lack merit, citing inter alia Roberts v. United States, 320 U.S. 264, 271 (1943) (approving on statutory grounds the imposition of a sentence pending probation, leaving the trial court free to impose a sentence it originally might have imposed upon revocation of probation). (Answer, Doc. 75 at 22-25.) See also Peltier v. Wright, 15 F.3d 860, 862 (9th Cir. 1994) (no double jeopardy violation in imposition of suspended sentence). Because Petitioner has not sought such a stay, these issues are not addressed.
Reply - The Court issued an Order setting a deadline for a reply, noting the exhaustion defense, and directing:
IT IS FURTHER ORDERED that any assertions in the reply that Petitioner's claims were fairly presented to the state appellate courts shall be supported by specific references to the location of the presentation of the claim, i.e. by exhibit number/letter in the record of this proceeding, document name, date of filing with the state court, page(s)/ line number(s) (e.g. “Exh. A, Petition for Review, filed 1/1/15, at 1/17 - 2/23”).
(Order 7/1/20, Doc. 77.)
On July 14, 2020, Petitioner filed a Reply (Doc. 89) and Declaration in Support (Doc. 90) with various exhibits attached. Petitioner argues Respondents have improperly failed to respond to the merits of his claims, and thus have conceded to his claims. Petitioner further argues that his sentence is a nullity because of the merits of his claims. He appends a listing of filings he contends established exhaustion. (Doc. 89 at 8.) Petitioner's Declaration (Doc. 90) summarily asserts his available state remedies have been exhausted. He appends various state court records.
On August 13, 2020, Petitioner filed portions of a new habeas petition (Doc. 91), which included, inter alia, a new Ground 2 asserting due process and equal protection claims based upon the denial of his PCR proceeding without discovery and evidentiary development by the biased and vindictive sentencing judge. The Court liberally construed this filing as a motion to amend the Petition and denied it without prejudice based on a variety of procedural grounds. (See Order 8/17/20, Doc. 93.) Petitioner did not renew his attempts to amend, or object to that Order.
III. APPLICATION OF LAW TO FACTS
A. DEFAULT IN FAILING TO ADDRESS MERITS
Petitioner argues that Respondents have effectively defaulted by not addressing the merits of his claims. (See Reply, Doc. 89 at 2-4.) Petitioner ignores that the Court explicitly authorized Respondents to defer addressing the merits until after the resolution of any procedural defenses. (See Order 3/19/20, Doc. 16 at 4 (“Respondents may file an answer that (a) is limited to relevant affirmative defenses…an answer that is limited to affirmative defenses on a particular claim does not waive any argument on the merits as to that claim.”).) No default has occurred.
B. EXHAUSTION, PROCEDURAL DEFAULT AND PROCEDURAL BAR
Respondents argue that Petitioner's claims are procedurally defaulted and thus are barred from federal habeas review.
1. Exhaustion Requirement
Generally, a federal court has authority to review a state prisoner's claims only if available state remedies have been exhausted. 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).
Petitioner seems to suggest that because his claims are “jurisdictional” in nature, they are not subject to such a procedural defense. (See Reply, Doc. 89 at 4-6.) The courts have regularly recognized the persistent nature of challenges to subject matter jurisdiction. See e.g. Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011) (“Objections to subject-matter jurisdiction, however, may be raised at any time.”); United States v. Cotton, 535 U.S. 625, 630 (2002) (“defects in subject-matter jurisdiction require correction regardless of whether the error was raised in district court”). See also Wright & Miller, Waiver of Certain Defenses, Fed. Pract. & Proc. § 1393. But such cases deal not with collateral challenges, such as a federal habeas petition attacking a state court conviction, but direct challenges in the same action, e.g. after trial or on appeal. See Kontrick v. Ryan, 540 U.S. 443, 455 (2004) (“A litigant generally may raise a court's lack of subject-matter jurisdiction at any time in the same civil action, even initially at the highest appellate instance.”). “Even subject-matter jurisdiction, however, may not be attacked collaterally.” Kontrick, 540 U.S. at 456 n. 9. Accordingly, even Petitioner's “jurisdictional” claims are subject to the requirement for exhaustion of state remedies.
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) (citations omitted).
Although fair presentation is the normal mode of establishing exhaustion of state remedies, it is not the only method. Rather, a petitioner's state remedies are exhausted where the state courts have reached and passed on the merits of a federal claim, regardless whether the petitioner had fairly presented the claim to the state court. See Castille v. Peoples, 489 U.S. 346, 351 (1989); Greene v. Lambert, 288 F.3d 1081, 1086 (9th Cir. 2002); Sandstrom v. Butterworth, 738 F.2d 1200, 1206 (11th Cir.1984); Walton v. Caspari, 916 F.2d 1352, 1356-57 (8th Cir.1990). On the other hand, actual consideration of the claim is not required. “All exhaustion requires is that the state courts have the opportunity to remedy an error, not that they actually took advantage of the opportunity.” Scott v. Schriro, 567 F.3d 573, 583 (9th Cir. 2009). Petitioner makes no showing that the state courts actually decided his current claims on the merits.
Petitioner avows in the Declaration (Doc. 90) in support of his Reply that he exhausted his state remedies in the trial court (“Maricopa County Superior Court No. CR2011-141134-002”), his direct appeal (“Arizona Court of Appeals, Division One No. 1 CA-CR 18-0859”), and petition review from that direct appeal (“Arizona Supreme Court No. CR-20-0025-PR”). (Doc. 90 at 1.) Petitioner fails, however, to comply with the Court's Order directing such assertions “be supported by specific references to the location of the presentation of the claim, i.e. by exhibit number/letter in the record of this proceeding, document name, date of filing with the state court, page(s)/ line number(s).” (Order 7/1/20, Doc. 77.) At best, he provides a listing of documents and dates, without page or line numbers. (Doc. 89 at 8.)
This table lists a variety of filings, none of which (other than as discussed herein) were a vehicle which could result in proper exhaustion. 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).
In any event, presentation to the trial court is not sufficient for exhaustion. “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)).
On direct appeal from his violation of probation (VOP) sentence, the only federal claims arguably raised to the Arizona Court of Appeals were Fourteenth Amendment claims that his VOP sentence was based on: (1) his inability to pay for domestic violence classes (Exh. U, Pro Per Opening Brief at 3 (citing inter alia Bearden v. Georgia, 461 U.S. 660 (1983) (revocation of probation for faultless non-payment of a fine violates due process and equal protection); (2) his faultless inability to appear for a scheduled appointment, lack of antisocial conduct, and a single alcohol violation and the minor nature of the violations (id. at 4-8 citing inter alia U.S. v. Hamilton, 708 F.2d 1412 (9th Cir. 1983) (discretion to revoke probation limited by due process concerns)). Those are not the same statutory and jurisdictional claims raised in this habeas petition.
Petitioner did raise statutory and jurisdictional challenges in his Petition for Review to the Arizona Supreme Court. But he did not assert them as federal constitutional claims. “[T]he petitioner must make the federal basis of the claim explicit either by specifying particular provisions of the federal Constitution or statutes, or by citing to federal case law, ” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005), or by “a citation to a state case analyzing [the] federal constitutional issue." Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003).
At most, Petitioner argued to the Arizona Supreme Court that the state statute was “unconstitutional” (Exh. W, Pet. Rev. at 1, 2) and that it was “double punishment” (id. at 3). He did not clarify what constitution was offended by these concerns (i.e. that of the United States, or the State of Arizona), or that the double jeopardy concern was a federal violation. Nor in making these claims did he cite to any federal cases, nor even any state cases. (Id. at 1-3.) Indeed, the only case Petitioner cited to was Bearden, supra, in connection with his challenges to the violation based on inability to pay for classes. (Id. at 4.)
Moreover, presentation to the Arizona Supreme Court for the first time is not sufficient to exhaust an Arizona state prisoner's remedies. "Submitting a new claim to the state's highest court in a procedural context in which its merits will not be considered absent special circumstances does not constitute fair presentation." Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994) (citing Castille v. Peoples, 489 U.S. 346, 351 (1989)). In Casey v. Moore, 386 F.3d 896 (9th Cir. 2004), the court reiterated that to properly exhaust a claim, "a petitioner must properly raise it on every level of direct review."
Academic treatment accords: The leading treatise on federal habeas corpus states, “Generally, a petitioner satisfies the exhaustion requirement if he properly pursues a claim (1) throughout the entire direct appellate process of the state, or (2) throughout one entire judicial postconviction process available in the state.”Casey, 386 F.3d at 916 (quoting Liebman & Hertz, Federal Habeas Corpus Practice and Procedure, § 23.3b (4th ed. 1998). The Arizona Supreme Court does not grant review of claims not raised below, absent special considerations. See State v. Logan, 200 Ariz. 564, 565, 20 P.3d 631, 632, n.2 (2001). And as already noted, Petitioner had not presented his federal habeas claims to the Arizona Court of Appeals.
In his PCR proceeding, Petitioner failed to fairly present any claims to the Arizona Court of Appeals in his original Petition for Review (Exh. FF). Although he was eventually granted leave to file an amended petition for review, Petitioner proffers nothing to show that he actually filed such a petition, nor that it raised his current claims. Nor does he proffer anything to show that his habeas claims were considered on the merits in that proceeding.
Accordingly, Petitioner has failed to show that he properly exhausted his state remedies on his federal habeas claims.
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 absent a “miscarriage of justice” which would excuse the default. 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. (Answer, Doc. 75 at 15-17.)
Remedies in First Post-Conviction Relief - Respondents argue that Petitioner cannot fairly present his claims in his reopened petition for review in the Arizona Court of Appeal in his original PCR proceeding because he did not raise them in the trial court. Petitioner does not respond.
As noted above, to properly exhaust state remedies, “a petitioner must properly raise it on every level of direct review.” Casey, 386 F.3d at 916. In Arizona, review of a petition for post-conviction relief by the Arizona Court of Appeals is governed by Rule 32.9, Arizona Rules of Criminal Procedure, which clarifies that review is available for “issues which were decided by the trial court.” Ariz. R. Crim. P. 32.9(c)(1)(ii). See also State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (Ariz. App. 1980) (issues first presented in petition for review and not presented to trial court not subject to review). Thus, although presentation of a federal claim to the trial court is not sufficient to properly exhaust state remedies in a PCR proceeding, it is necessary to proper exhaustion.
Here, Petitioner did not present his federal claims to the PCR court. Petitioner arguably raised the facts of his habeas claim in the trial court, e.g. by asserting that the “Arizona statutes do not authorize courts to sentence a person to both prison and probation.” (Exh. AA, Pro Per PCR Pet. at 2.) But Petitioner made no reference to the federal constitution, federal authorities, or even constitutional principles. At most, he referenced two state cases, neither of which addressed federal constitutional principles. (Id. at 2.) See e.g. State v. Pakula, 113 Ariz. 122, 124, 547 P.2d 476, 478 (1976), overruled by State v. Jones, 124 Ariz. 24, 601 P.2d 1060 (1979) (no statutory authority for prison and probation term); and State v. Jordan, 120 Ariz. 97, 584 P.2d 561 (1978) (same). Thus, Petitioner could not now fairly present his federal habeas claims to the Arizona Court of Appeals, even in a delayed petition for review.
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 New Post-Conviction Relief - Under Arizona's waiver and timeliness bars, Petitioner can no longer seek review by a subsequent PCR Petition.
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). 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 are of the sort 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 appears that such exceptions would apply. The rule defines the excepted claims as follows:
d. The person is being held in custody after the sentence imposed has expired;
e. Newly discovered material facts probably exist and such facts probably would have changed the verdict or sentence. Newly discovered material facts exist if:
(1) The newly discovered material facts were discovered after the trial.
(2) The defendant exercised due diligence in securing the newly discovered material facts.
(3) The newly discovered material facts are not merely cumulative or used solely for impeachment, unless the impeachment evidence substantially undermines testimony which was of critical significance at trial such that the evidence probably would have changed the verdict or sentence.
f. The defendant's failure to file a notice of post-conviction relief of-right or notice of appeal within the prescribed time was without fault on the defendant's part; or
g. There has been a significant change in the law that if determined to apply to defendant's case would probably overturn the defendant's conviction or sentence; or
h. The defendant demonstrates by clear and convincing evidence that the facts underlying the claim would be sufficient to establish that no reasonable fact-finder would have found defendant guilty of the underlying offense beyond a reasonable doubt, or that the court would not have imposed the death penalty.
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 habeas claims are now procedurally defaulted.
3. Independent and Adequate State Grounds
“[A]bsent showings of ‘cause' and ‘prejudice,' federal habeas relief will be unavailable when (1) ‘a state court [has] declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement,' and (2) ‘the state judgment rests on independent and adequate state procedural grounds.' ” Walker v. Martin, 562 U.S. 307, 316 (2011). In Bennett v. Mueller, 322 F.3d 573 (9th Cir.2003), the Ninth Circuit addressed the burden of proving the independence and adequacy of a state procedural bar.
Once the state has adequately pled the existence of an independent and adequate state procedural ground as an affirmative defense, the burden to place that defense in issue shifts to the petitioner. The petitioner may satisfy this burden by asserting specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule. Once having done so, however, the ultimate burden is the state's.Id. at 584-585.
Waiver Bar - Petitioner fails to proffer anything to suggest that Rule 32.2(a) is not an independent and adequate state ground, sufficient to bar federal habeas review of claims a defendant could have but did not raise on direct appeal. The federal courts have routinely held that it is. “Arizona's waiver rules are independent and adequate bases for denying relief.” Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014).
Timeliness Bar - Similarly, Petitioner fails to proffer anything to suggest that Rule 32.4 is not an independent and adequate state ground, sufficient to bar federal habeas review of claims a defendant could have but did not raise on direct appeal. The Ninth Circuit has held that it is. Simmons v. Schriro, 187 Fed.Appx. 753, 754 (9th Cir. 2006) (unpublished decision).
4. Cause and Prejudice
If the habeas petitioner has procedurally defaulted on a claim, 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). Petitioner makes no assertion of cause to excuse his procedural defaults. The undersigned finds none.
In his failed amendment to his habeas petition, Petitioner suggests that ineffective assistance of PCR counsel resulted in his failure to properly exhaust. (See Doc. 91 at 3 (citing Martinez v. Ryan).) Martinez only allows ineffective assistance of PCR counsel to excuse failure to exhaust remedies on claims of ineffective assistance of trial counsel. 566 U.S. 1, 17 (2012). Petitioner's Petition does not assert a substantive claim of ineffective assistance of trial counsel.
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 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.
5. Actual Innocence
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). 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). Petitioner makes no argument or showing that no reasonable fact finder would have found him guilty of violating his probation, or of the underlying offenses in the original criminal case for which he was on probation.
The undersigned has found no authority addressing whether the relevant inquiry in probation violation cases is the innocence of the violation, the offense or both. Cf. Firth v. Smelser, 403 Fed.Appx. 321, 325 (10th Cir. 2010) (rejecting, without analysis of legal viability, claim of actual innocence of violation as factually unsupported); and Morgan v. Ryan, CV-10-2215-PHX-ROS(JFM), 2011 WL 6296763 (D. Ariz. Nov. 28, 2011), report and recommendation adopted, 2011 WL 6296758 (D. Ariz. Dec. 16, 2011) (same). Because Petitioner makes no sufficient showing on either, the issue need not be resolved.
Accordingly, his procedurally defaulted claims 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. “If the court issues a certificate, the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” 28 U.S.C. § 2253(c)(3). See also Rules Governing § 2254 Cases, Rule 11(a).
Standard Not Met - Assuming the recommendations herein are followed in the district court's judgment, that decision will be on procedural grounds. Under the reasoning set forth herein, jurists of reason would not find it debatable whether the district court was correct in its procedural ruling.
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 that the Petitioner's Petition for Writ of Habeas Corpus, filed December 19, 2019 (Doc. 1) be DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that, 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.”