1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Adam Paul Blomdahl, No. CV-23-02390-PHX-MTL 10 Petitioner, ORDER 11 v. 12 Ryan Thornell, et al., 13 Respondents. 14 15 Petitioner Adam Paul Blomdahl (“Petitioner”) was convicted in Maricopa County 16 Superior Court of one count of first-degree murder and two counts of aggravated assault 17 with a deadly weapon. (Doc. 10 at 1-2.) He is currently serving a sentence of life 18 imprisonment for the murder conviction and two consecutive twelve-year terms for the 19 aggravated assault convictions. (Id.) 20 On November 14, 2023, Petitioner submitted his Petition for Writ of Habeas Corpus 21 (the “Petition”) with this Court. (Doc. 1.) Magistrate Judge Deborah M. Fine issued a 22 Report and Recommendation (“R&R”), recommending the Petition be dismissed without 23 prejudice and that a certificate of appealability be granted. (Doc. 34.) Petitioner filed his 24 Objections to the R&R. (Doc. 35.) The Court now rules. 25 I. BACKGROUND 26 The R&R recounts the factual and procedural history of this case, including the 27 underlying state court proceedings. (Doc. 34 at 3-9.) Neither party has objected to this 28 portion of the R&R, and the Court hereby accepts and adopts it. United States v. Ramos, 1 65 F.4th 427, 433 (9th Cir. 2023) (citing United States v. Reyna-Tapia, 328 F.3d 1114, 2 1121 (9th Cir. 2003) (en banc)). 3 Petitioner raises four grounds for relief in his Petition. (Doc. 1.) The R&R 4 summarized the Petition as claiming: 5 (1) his Sixth and Fourteenth Amendment rights to “effective assistance and due process [were] violated, preventing [him] 6 from presenting all of his causation evidence in [his] defense”; 7 (2) his Sixth and Fourteenth Amendment rights to “effective assistance and due process [were] violated[,] preventing [him] 8 from rec[ei]ving a fair trial” and “excessive bond [was] imposed, while the State used this as a tactical advantage”; 9 (3) his First and Fourth Amendment rights “to court access and 10 to be secure in his person, papers & effects [were] violated by an implicated Phoenix P.D., false reporting and illegal 11 warrants”; and 12 (4) his Second and Fifth Amendment rights of “freedom to bear arms and to be secure in his property and without it [being] 13 taken unless w[ith] just compensation” were violated because “[t]he State gave a jury instruction about (possession) when 14 [Petitioner] was not a prohibited possessor & should have given a Willits instruction.” 15 16 (Doc. 34 at 2 (citing Doc. 10 at 2).) 17 The R&R ultimately determined that Petitioner’s claims are unexhausted because 18 Petitioner has ongoing post-conviction relief (“PCR”) proceedings in state court and 19 recommends that the Petition be dismissed without prejudice. (Doc. 34 at 19.) The R&R 20 summarized the “unusual PCR procedural history and posture” as follows: 21 Petitioner’s first PCR proceedings were timely filed, but his appointed counsel misunderstood the procedural posture or 22 applicable law and moved for dismissal without prejudice of the PCR proceedings pending Petitioner’s restitution appeal 23 after his direct appeal was completed. Based on such, the superior court dismissed the PCR proceedings without 24 prejudice with leave to refile within thirty days after the conclusion of the pending appeal. Petitioner then refiled within 25 thirty days after the conclusion of the pending appeal, but his then still-appointed PCR counsel did not act. Two different 26 judges of the superior court issued separate and different rulings based on Petitioner’s post-appeal filings, one 27 dismissing the PCR proceedings, and the other appointing different counsel and setting a PCR proceedings briefing 28 schedule. The latter PCR proceedings are still pending and the scope of such are unclear. 1 (Id. at 17-18.) Petitioner’s appointed counsel for the pending PCR proceedings 2 acknowledged that “Petitioner should be entitled to assert his claims as to the mandate in 3 the restitution appeal and as to claims brought under Rule 32.1(a), 32.1(d), 321.1(e) [sic], 4 32.1(g) and 32.1(h).” (Id. at 9 (quoting Doc. 25-1 at 9).) And Petitioner expressed an 5 intention to raise all claims relating to his convictions and restitution appeal in his pro se 6 PCR petition. (Id. (citing Doc. 28).) The deadline for filing his pro se PCR petition, 7 however, was pending when Magistrate Judge Fine issued the R&R. (Id.) 8 Given this unusual procedural posture, the R&R found “Petitioner did not or has not 9 yet properly exhausted his habeas claims in the Arizona Court of Appeals in a procedurally 10 appropriate manner,” which is either by “direct appeal or in petitioning for review of 11 denial/dismissal of PCR proceedings.” (Id. at 16.) The R&R recommends that the Petition 12 be dismissed without prejudice rather than stayed because Petitioner “has not established 13 good cause for his failure to exhaust” to warrant a stay. (Id. at 18.) 14 Petitioner raises one principal objection to the R&R: that he has “a freestanding 15 claim for actual innocence,” and the claim is supported by “new reliable evidence.” 16 (Doc. 35 at 1.) Petitioner also filed a Motion for Telephonic Hearing regarding his actual 17 innocence claim. (Doc. 36.) No response has been received. 18 II. LEGAL STANDARD 19 A. Standard of Review 20 In reviewing an R&R, the Court “may accept, reject, or modify, in whole or in part, 21 the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). 22 “[T]he district judge must review the magistrate judge’s findings and recommendations de 23 novo if objection is made, but not otherwise.” Ramos, 65 F.4th at 433 (citing Reyna-Tapia, 24 328 F.3d at 1121) (emphasis in original); see also Thomas v. Arn, 474 U.S. 140, 149 (1985) 25 (finding that district courts need not conduct “any review at all . . . of any issue that is not 26 the subject of an objection”). 27 B. Exhaustion 28 Petitioner’s habeas claims are governed by the Antiterrorism and Effective Death 1 Penalty Act of 1996 (“AEDPA”), which requires petitioners to exhaust the remedies 2 available in state court before pursuing relief in federal court. 28 U.S.C. § 2254(b)(1)(A). 3 “[T]he exhaustion doctrine is designed to give the state courts a full and fair opportunity to 4 resolve federal constitutional claims before those claims are presented to the federal 5 courts.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). 6 A petitioner has not exhausted a claim “if he has the right under the law of the State 7 to raise, by any available procedure, the question presented” in state court. Johnson v. 8 Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citing 28 U.S.C. § 2254(c)); see also Kipp v. 9 Davis, 971 F.3d 939, 947 n.4 (9th Cir. 2020). “A petitioner satisfie[s] the exhaustion 10 requirement if: (1) he has fairly presented his federal claim to the highest state court with 11 jurisdiction to consider it, or (2) he demonstrates that no state remedy remains available.” 12 Johnson, 88 F.3d at 829 (cleaned up). “Exhaustion demands more than drive-by citation, 13 detached from any articulation of an underlying federal legal theory.” Castillo v. 14 McFadden, 399 F.3d 993
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Adam Paul Blomdahl, No. CV-23-02390-PHX-MTL 10 Petitioner, ORDER 11 v. 12 Ryan Thornell, et al., 13 Respondents. 14 15 Petitioner Adam Paul Blomdahl (“Petitioner”) was convicted in Maricopa County 16 Superior Court of one count of first-degree murder and two counts of aggravated assault 17 with a deadly weapon. (Doc. 10 at 1-2.) He is currently serving a sentence of life 18 imprisonment for the murder conviction and two consecutive twelve-year terms for the 19 aggravated assault convictions. (Id.) 20 On November 14, 2023, Petitioner submitted his Petition for Writ of Habeas Corpus 21 (the “Petition”) with this Court. (Doc. 1.) Magistrate Judge Deborah M. Fine issued a 22 Report and Recommendation (“R&R”), recommending the Petition be dismissed without 23 prejudice and that a certificate of appealability be granted. (Doc. 34.) Petitioner filed his 24 Objections to the R&R. (Doc. 35.) The Court now rules. 25 I. BACKGROUND 26 The R&R recounts the factual and procedural history of this case, including the 27 underlying state court proceedings. (Doc. 34 at 3-9.) Neither party has objected to this 28 portion of the R&R, and the Court hereby accepts and adopts it. United States v. Ramos, 1 65 F.4th 427, 433 (9th Cir. 2023) (citing United States v. Reyna-Tapia, 328 F.3d 1114, 2 1121 (9th Cir. 2003) (en banc)). 3 Petitioner raises four grounds for relief in his Petition. (Doc. 1.) The R&R 4 summarized the Petition as claiming: 5 (1) his Sixth and Fourteenth Amendment rights to “effective assistance and due process [were] violated, preventing [him] 6 from presenting all of his causation evidence in [his] defense”; 7 (2) his Sixth and Fourteenth Amendment rights to “effective assistance and due process [were] violated[,] preventing [him] 8 from rec[ei]ving a fair trial” and “excessive bond [was] imposed, while the State used this as a tactical advantage”; 9 (3) his First and Fourth Amendment rights “to court access and 10 to be secure in his person, papers & effects [were] violated by an implicated Phoenix P.D., false reporting and illegal 11 warrants”; and 12 (4) his Second and Fifth Amendment rights of “freedom to bear arms and to be secure in his property and without it [being] 13 taken unless w[ith] just compensation” were violated because “[t]he State gave a jury instruction about (possession) when 14 [Petitioner] was not a prohibited possessor & should have given a Willits instruction.” 15 16 (Doc. 34 at 2 (citing Doc. 10 at 2).) 17 The R&R ultimately determined that Petitioner’s claims are unexhausted because 18 Petitioner has ongoing post-conviction relief (“PCR”) proceedings in state court and 19 recommends that the Petition be dismissed without prejudice. (Doc. 34 at 19.) The R&R 20 summarized the “unusual PCR procedural history and posture” as follows: 21 Petitioner’s first PCR proceedings were timely filed, but his appointed counsel misunderstood the procedural posture or 22 applicable law and moved for dismissal without prejudice of the PCR proceedings pending Petitioner’s restitution appeal 23 after his direct appeal was completed. Based on such, the superior court dismissed the PCR proceedings without 24 prejudice with leave to refile within thirty days after the conclusion of the pending appeal. Petitioner then refiled within 25 thirty days after the conclusion of the pending appeal, but his then still-appointed PCR counsel did not act. Two different 26 judges of the superior court issued separate and different rulings based on Petitioner’s post-appeal filings, one 27 dismissing the PCR proceedings, and the other appointing different counsel and setting a PCR proceedings briefing 28 schedule. The latter PCR proceedings are still pending and the scope of such are unclear. 1 (Id. at 17-18.) Petitioner’s appointed counsel for the pending PCR proceedings 2 acknowledged that “Petitioner should be entitled to assert his claims as to the mandate in 3 the restitution appeal and as to claims brought under Rule 32.1(a), 32.1(d), 321.1(e) [sic], 4 32.1(g) and 32.1(h).” (Id. at 9 (quoting Doc. 25-1 at 9).) And Petitioner expressed an 5 intention to raise all claims relating to his convictions and restitution appeal in his pro se 6 PCR petition. (Id. (citing Doc. 28).) The deadline for filing his pro se PCR petition, 7 however, was pending when Magistrate Judge Fine issued the R&R. (Id.) 8 Given this unusual procedural posture, the R&R found “Petitioner did not or has not 9 yet properly exhausted his habeas claims in the Arizona Court of Appeals in a procedurally 10 appropriate manner,” which is either by “direct appeal or in petitioning for review of 11 denial/dismissal of PCR proceedings.” (Id. at 16.) The R&R recommends that the Petition 12 be dismissed without prejudice rather than stayed because Petitioner “has not established 13 good cause for his failure to exhaust” to warrant a stay. (Id. at 18.) 14 Petitioner raises one principal objection to the R&R: that he has “a freestanding 15 claim for actual innocence,” and the claim is supported by “new reliable evidence.” 16 (Doc. 35 at 1.) Petitioner also filed a Motion for Telephonic Hearing regarding his actual 17 innocence claim. (Doc. 36.) No response has been received. 18 II. LEGAL STANDARD 19 A. Standard of Review 20 In reviewing an R&R, the Court “may accept, reject, or modify, in whole or in part, 21 the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). 22 “[T]he district judge must review the magistrate judge’s findings and recommendations de 23 novo if objection is made, but not otherwise.” Ramos, 65 F.4th at 433 (citing Reyna-Tapia, 24 328 F.3d at 1121) (emphasis in original); see also Thomas v. Arn, 474 U.S. 140, 149 (1985) 25 (finding that district courts need not conduct “any review at all . . . of any issue that is not 26 the subject of an objection”). 27 B. Exhaustion 28 Petitioner’s habeas claims are governed by the Antiterrorism and Effective Death 1 Penalty Act of 1996 (“AEDPA”), which requires petitioners to exhaust the remedies 2 available in state court before pursuing relief in federal court. 28 U.S.C. § 2254(b)(1)(A). 3 “[T]he exhaustion doctrine is designed to give the state courts a full and fair opportunity to 4 resolve federal constitutional claims before those claims are presented to the federal 5 courts.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). 6 A petitioner has not exhausted a claim “if he has the right under the law of the State 7 to raise, by any available procedure, the question presented” in state court. Johnson v. 8 Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citing 28 U.S.C. § 2254(c)); see also Kipp v. 9 Davis, 971 F.3d 939, 947 n.4 (9th Cir. 2020). “A petitioner satisfie[s] the exhaustion 10 requirement if: (1) he has fairly presented his federal claim to the highest state court with 11 jurisdiction to consider it, or (2) he demonstrates that no state remedy remains available.” 12 Johnson, 88 F.3d at 829 (cleaned up). “Exhaustion demands more than drive-by citation, 13 detached from any articulation of an underlying federal legal theory.” Castillo v. 14 McFadden, 399 F.3d 993, 1003 (9th Cir. 2005). 15 For non-capital cases in Arizona, a habeas petitioner presents his claim to the 16 highest court by presenting it to the Arizona Court of Appeals in a direct appeal or through 17 post-conviction relief. See Kyzar v. Ryan, 780 F.3d 940, 947 (9th Cir. 2015) (citing 18 Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999) (per curiam)). To properly present 19 claims before the Arizona Court of Appeals, the petitioner must include a description of 20 “the operative facts and the federal legal theory on which his claim is based so that the state 21 courts have a fair opportunity to apply controlling legal principles to the facts bearing upon 22 his constitutional claim.” Walden v. Shinn, 990 F.3d 1183, 1196 (9th Cir. 2021) (quoting 23 Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008)). 24 III. DISCUSSION 25 A. Actual Innocence 26 The only objection Petitioner raises to the R&R is that he has “a freestanding claim 27 for actual innocence,” supported by “new reliable evidence.” (Doc. 35 at 1.) Petitioner 28 appears to argue that he was not the cause of the victim’s death and opines that “during his 1 trial, the [medical examiner] lied and said the cause of death of [the victim] was due to 2 injuries, when there was not a brain death diagnoses, but new evidence proves the omitted 3 organ donation was the actual cause.” (Id. at 3.) According to Petitioner, medical staff 4 misled the victim’s 75-year-old mother, “telling her that ‘her daughter was braindead,’” 5 but if the jury knew “the medical condition info that was used to get [the victim’s] mom to 6 donate her daughter[‘]s organs, whereby removing life support and causing death, than 7 [sic] there would be no way a reasonable juror would find [Petitioner] guilty of murder.” 8 (Id. at 3, 5.) Petitioner requests a certificate of innocence. (Id. at 2.) He also asks the Court 9 to order an evidentiary hearing or alternatively, to stay this case pending the outcome of 10 his PCR proceedings in state court. (Id.) 11 Petitioner’s singular objection is merely a reiteration of his causation arguments in 12 Ground I of his Petition. (See Doc. 1 at 6.) Petitioner does not refute the R&R’s finding 13 that Petitioner has not exhausted the remedies available in state court, as required under 14 AEDPA. See 28 U.S.C. § 2254(b)(1)(A). Nor has Petitioner argued that no state remedy is 15 available. Johnson, 88 F.3d at 829. The record of Petitioner’s ongoing PCR proceedings is 16 not before this Court, and as a result, it remains unclear what claims the state court has or 17 will allow the Petitioner to raise in his pro se petition, including Petitioner’s freestanding 18 actual innocence claim. Because Petitioner raises no other objection to the R&R, the Court 19 will adopt the R&R’s finding that Petitioner’s claims are not exhausted, and therefore, will 20 dismiss the Petition without prejudice. Martineau v. Elliot, No. CV-08-1214-PHX-SMM 21 (JRI), 2008 WL 3582811, at *1 (D. Ariz. Aug. 13, 2008) (dismissing habeas petition as 22 premature when the petitioner presently had a Rule-32 petition pending in the Maricopa 23 County Superior Court). 24 B. Certificate of Appealability 25 The R&R recommends issuing a certificate of appealability because “[r]easonable 26 jurists may find it debatable as to whether the matter should be dismissed, particularly 27 without prejudice and rather than stayed.” (Doc. 34 at 19.) 28 A certificate of appealability may issue only if the applicant makes a substantial 1 showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The petitioner must 2 show that reasonable jurists would find it debatable whether: (1) the petition states a valid 3 claim of the denial of a constitutional right, and (2) the district court was correct in any 4 procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000). 5 Petitioner has not made a substantial showing that his constitutional rights have been 6 denied, nor has Petitioner argued that reasonable jurists would debate whether a dismissal 7 without prejudice versus a stay is procedurally proper. The R&R found that “Petitioner is 8 not entitled to a Rhines stay because Petitioner has not established good cause for his failure 9 to exhaust.” (Doc. 34 at 18.) Petitioner raises no good cause arguments in his Objections. 10 Therefore, reasonable jurists could not debate whether the Petition should have been 11 resolved by a stay and abeyance as opposed to a dismissal without prejudice. Given the 12 unclear scope of the pending PCR proceedings in state court, the Petition is premature for 13 failure to exhaust. A dismissal without prejudice is appropriate as Petitioner can refile his 14 Petition once his remedies available in state court have been exhausted. Slack, 529 U.S. at 15 487 (2000) (holding that a petition filed after a petition has been dismissed for failure to 16 exhaust before the district court adjudicated any claims is not a second or successive 17 petition). Therefore, the Court will modify the R&R in part and deny the issuance of a 18 certificate of appealability. 19 IV. MOTION FOR HEARING 20 Petitioner also asks this Court for a telephonic hearing regarding his actual 21 innocence claim. (Doc. 36.) The Court does not find good cause to order a telephonic or 22 other hearing at this time. Petitioner’s arguments are clear from his briefs, and a hearing 23 would not aid the Court in resolution of the R&R. The Court will deny Petitioner’s Motion. 24 See Fed. R. Civ. P. 78(b); LRCiv 7.2(f). 25 V. CONCLUSION 26 Accordingly, 27 IT IS ORDERED that Petitioner’s Motion for Hearing (Doc. 36) is denied. 28 IT IS FURTHER ORDERED that the R&R (Doc. 34) is accepted in part and 1 || modified in part as provided in this Order. 2 IT IS FURTHER ORDERED that the Petition (Doc. 1) is dismissed without 3 || prejudice. 4 IT IS FINALLY ORDERED denying the issuance of a certificate of appealability 5 || and leave to proceed in forma pauperis on appeal because Petitioner has not demonstrated 6 || that reasonable jurists could find the ruling debatable or conclude that the issues presented || are adequate to deserve encouragement to proceed further. See Neiss v. Bludworth, 114 8] F.4th 1038, 1046-47 n.1 (9th Cir. 2024) (citing Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)); 28 U.S.C. § 2253(c). 10 Dated this 18th day of December, 2024. 11 2 Wichal T. Hburdle 13 Michael T. Liburdi 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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