1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Jack Leon Blythe, No. CV-19-08207-PCT-DLR (ESW)
10 Petitioner, ORDER
11 v.
12 David Shinn, et al.,
13 Respondents. 14 15 16 Before the Court is the Report and Recommendation (“R&R”) of Magistrate Judge 17 Eileen S. Willett (Doc. 15) regarding Petitioner’s Petition for Writ of Habeas Corpus filed 18 pursuant to 28 U.S.C. § 2254 (Doc. 1). The R&R recommends that the petition be denied 19 and dismissed with prejudice. The Magistrate Judge advised the parties that they had 20 fourteen days from the date of service of a copy of the R&R to file specific written 21 objections with the Court. Petitioner filed an objection to the R&R on July 27, 2020 (Doc. 22 16), Respondents filed their response on August 7, 2020 (Doc. 17), and Petitioner filed his 23 reply on August 19, 2020 (Doc. 18). The Court has considered the objections and reviewed 24 the R&R de novo. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1). 25 Petitioner was convicted of three counts of child molestation. On May 6, 2015, he 26 was sentenced to 84 years in prison. On March 31, 2016, Petitioner’s conviction and 27 sentence were affirmed by the Arizona Court of Appeals (“ACOA”). Subsequently, the 28 Arizona Supreme Court (“ACS”) denied Petitioner’s petition for review. On October 5, 1 2016, Petitioner filed a Notice of Post-Conviction Relief (“PCR”) in the state trial court. 2 After appointed counsel filed a notice of no colorable claim, Petitioner filed a pro se PCR 3 petition. The trial court denied relief, and the ACOA affirmed. 4 In July 2019, Petitioner filed this habeas petition, alleging seven grounds for relief. 5 The R&R found that Grounds One, Two, and Three are procedurally defaulted without 6 excuse and recommended that they be dismissed. It found that Grounds Four, Five, and 7 Six are without merit and recommended that they be denied. It found that Ground Seven 8 does not present a cognizable claim and that it should be dismissed. Petitioner disputes the 9 R&R’s findings and recommendations on all seven grounds 10 Grounds One and Two allege Fifth and Fourteenth Amendment rights violations 11 based on the trial court’s evidentiary rulings and denial of a motion for directed verdict. 12 However, when Petitioner raised those arguments in state court, he raised only state law 13 violations and did not raise U.S. constitutional violation claims. The R&R correctly found 14 that Grounds One and Two, alleging Fifth and Fourteenth Amendment rights violations, 15 were not exhausted in state court because they were not raised, and are procedurally 16 defaulted because time has expired for Petitioner to return to state court to raise these 17 grounds 18 Ground Three alleges Fifth and Fourteenth Amendment rights violations based on 19 the failure to provide him with the transcripts needed to prepare an adequate PCR. 20 However, those constitutional grounds were not presented to the ACOA in his petition for 21 review following the trial court’s denial of his PCR. The R&R correctly found that Ground 22 Three was not exhausted in state court because the claims were not raised, and is 23 procedurally defaulted because time has expired for Petitioner to return to state court to 24 raise this ground. 25 Petitioner objects to the R&R’s finding that his procedural defaults are not excused. 26 In order to establish cause for excusing a procedurally defaulted claim, a petitioner must 27 prove that the default is due to an external, objective factor not attributed to him. Smith v. 28 Baldwin, 510 F.3d 1127, 1146 (9th Cir. 2007). Petitioner argues that PCR and appellate 1 counsel “actively stalled” providing the record to him. Those alleged facts do not support 2 his claim that an external factor caused the procedural defaults. Grounds One and Two 3 were procedurally defaulted because they were based on state law and were not presented 4 as federal claims. Ground Three was procedurally defaulted because of Petitioner’s failure 5 to present it to the ACOA when he was representing himself in his petition for review 6 following the trial court’s denial of post-conviction relief. The alleged delay in receiving 7 the record did not play a role in the legal determination that Grounds One and Two were 8 not presented as federal claims in state court. As to Ground Three, petitioner did not raise 9 in state court his claim that counsel delayed providing the record and there are no facts 10 showing that a delay prevented Petitioner from raising any issues or caused his petition for 11 review in the ACOA to be dismissed. 12 The R&R correctly found that the Petitioner has not shown that his procedural 13 defaults are due to an external objective factor that cannot be fairly attributed to him. The 14 R&R, consistent with Ninth Circuit precedent, stated that “Petitioner’s status as an inmate 15 with limited legal resources cannot constitute cause to excuse his procedural defaults.” 16 (Doc. 15 at 8); see Hughes v. Idaho State Bd. of Corr., 800 F.2d 905, 909 (9th Cir. 1986) 17 (an illiterate pro se petitioner's lack of legal assistance did not amount to cause to excuse a 18 procedural default). 19 Grounds Four, Five, and Six rely on an argument that the statute under which 20 Petitioner was convicted, A.R.S. § 13-1410, is unconstitutionally vague. Petitioner relies 21 on May v. Ryan, 245 F. Supp. 3d 1145, 1158 (D. Ariz. 2017), which determined that A.R.S. 22 § 13-1410 unconstitutionally shifted the burden of proof to the defendant. Ground Four 23 alleges that A.R.S. § 13-1410 is unconstitutionally vague. Ground Five alleges that 24 Petitioner’s trial counsel failed to raise a constitutional challenge at trial. Ground Six 25 alleges that appellate counsel failed to raise the unconstitutional vagueness of the statute 26 on appeal. 27 / / / 28 / / / 1 Petitioner’s reliance on May is not well founded. It is not the law. The Ninth Circuit 2 partially vacated the district court’s May decision, finding that A.R.S. § 13-1410 is not 3 vague because of the long-standing status of the law in Arizona that the State is not required 4 to prove sexual intent to successfully prosecute a defendant for child molestation. May v. 5 Ryan, 766 F. App’x 505, 506 (9th Cir. 2019). Because the law is well-settled that A.R.S. 6 § 13-1410 is not unconstitutionally vague, Grounds Four, Five, and Six, which rely on the 7 vagueness argument, are without merit. 8 Ground Seven alleges that Petitioner was denied effective assistance of PCR counsel 9 for failing to raise claims that both trial counsel and appellate counsel were ineffective. 10 The R&R correctly found that there is no constitutional right to an attorney in PCR 11 proceedings and therefore there is no constitutional right to effective assistance of PCR 12 counsel. Coleman v. Thompson, 501 U.S. 722, 752 (1991). The R&R correctly found that 13 Ground Seven is not a cognizable claim in this proceeding.
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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Jack Leon Blythe, No. CV-19-08207-PCT-DLR (ESW)
10 Petitioner, ORDER
11 v.
12 David Shinn, et al.,
13 Respondents. 14 15 16 Before the Court is the Report and Recommendation (“R&R”) of Magistrate Judge 17 Eileen S. Willett (Doc. 15) regarding Petitioner’s Petition for Writ of Habeas Corpus filed 18 pursuant to 28 U.S.C. § 2254 (Doc. 1). The R&R recommends that the petition be denied 19 and dismissed with prejudice. The Magistrate Judge advised the parties that they had 20 fourteen days from the date of service of a copy of the R&R to file specific written 21 objections with the Court. Petitioner filed an objection to the R&R on July 27, 2020 (Doc. 22 16), Respondents filed their response on August 7, 2020 (Doc. 17), and Petitioner filed his 23 reply on August 19, 2020 (Doc. 18). The Court has considered the objections and reviewed 24 the R&R de novo. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1). 25 Petitioner was convicted of three counts of child molestation. On May 6, 2015, he 26 was sentenced to 84 years in prison. On March 31, 2016, Petitioner’s conviction and 27 sentence were affirmed by the Arizona Court of Appeals (“ACOA”). Subsequently, the 28 Arizona Supreme Court (“ACS”) denied Petitioner’s petition for review. On October 5, 1 2016, Petitioner filed a Notice of Post-Conviction Relief (“PCR”) in the state trial court. 2 After appointed counsel filed a notice of no colorable claim, Petitioner filed a pro se PCR 3 petition. The trial court denied relief, and the ACOA affirmed. 4 In July 2019, Petitioner filed this habeas petition, alleging seven grounds for relief. 5 The R&R found that Grounds One, Two, and Three are procedurally defaulted without 6 excuse and recommended that they be dismissed. It found that Grounds Four, Five, and 7 Six are without merit and recommended that they be denied. It found that Ground Seven 8 does not present a cognizable claim and that it should be dismissed. Petitioner disputes the 9 R&R’s findings and recommendations on all seven grounds 10 Grounds One and Two allege Fifth and Fourteenth Amendment rights violations 11 based on the trial court’s evidentiary rulings and denial of a motion for directed verdict. 12 However, when Petitioner raised those arguments in state court, he raised only state law 13 violations and did not raise U.S. constitutional violation claims. The R&R correctly found 14 that Grounds One and Two, alleging Fifth and Fourteenth Amendment rights violations, 15 were not exhausted in state court because they were not raised, and are procedurally 16 defaulted because time has expired for Petitioner to return to state court to raise these 17 grounds 18 Ground Three alleges Fifth and Fourteenth Amendment rights violations based on 19 the failure to provide him with the transcripts needed to prepare an adequate PCR. 20 However, those constitutional grounds were not presented to the ACOA in his petition for 21 review following the trial court’s denial of his PCR. The R&R correctly found that Ground 22 Three was not exhausted in state court because the claims were not raised, and is 23 procedurally defaulted because time has expired for Petitioner to return to state court to 24 raise this ground. 25 Petitioner objects to the R&R’s finding that his procedural defaults are not excused. 26 In order to establish cause for excusing a procedurally defaulted claim, a petitioner must 27 prove that the default is due to an external, objective factor not attributed to him. Smith v. 28 Baldwin, 510 F.3d 1127, 1146 (9th Cir. 2007). Petitioner argues that PCR and appellate 1 counsel “actively stalled” providing the record to him. Those alleged facts do not support 2 his claim that an external factor caused the procedural defaults. Grounds One and Two 3 were procedurally defaulted because they were based on state law and were not presented 4 as federal claims. Ground Three was procedurally defaulted because of Petitioner’s failure 5 to present it to the ACOA when he was representing himself in his petition for review 6 following the trial court’s denial of post-conviction relief. The alleged delay in receiving 7 the record did not play a role in the legal determination that Grounds One and Two were 8 not presented as federal claims in state court. As to Ground Three, petitioner did not raise 9 in state court his claim that counsel delayed providing the record and there are no facts 10 showing that a delay prevented Petitioner from raising any issues or caused his petition for 11 review in the ACOA to be dismissed. 12 The R&R correctly found that the Petitioner has not shown that his procedural 13 defaults are due to an external objective factor that cannot be fairly attributed to him. The 14 R&R, consistent with Ninth Circuit precedent, stated that “Petitioner’s status as an inmate 15 with limited legal resources cannot constitute cause to excuse his procedural defaults.” 16 (Doc. 15 at 8); see Hughes v. Idaho State Bd. of Corr., 800 F.2d 905, 909 (9th Cir. 1986) 17 (an illiterate pro se petitioner's lack of legal assistance did not amount to cause to excuse a 18 procedural default). 19 Grounds Four, Five, and Six rely on an argument that the statute under which 20 Petitioner was convicted, A.R.S. § 13-1410, is unconstitutionally vague. Petitioner relies 21 on May v. Ryan, 245 F. Supp. 3d 1145, 1158 (D. Ariz. 2017), which determined that A.R.S. 22 § 13-1410 unconstitutionally shifted the burden of proof to the defendant. Ground Four 23 alleges that A.R.S. § 13-1410 is unconstitutionally vague. Ground Five alleges that 24 Petitioner’s trial counsel failed to raise a constitutional challenge at trial. Ground Six 25 alleges that appellate counsel failed to raise the unconstitutional vagueness of the statute 26 on appeal. 27 / / / 28 / / / 1 Petitioner’s reliance on May is not well founded. It is not the law. The Ninth Circuit 2 partially vacated the district court’s May decision, finding that A.R.S. § 13-1410 is not 3 vague because of the long-standing status of the law in Arizona that the State is not required 4 to prove sexual intent to successfully prosecute a defendant for child molestation. May v. 5 Ryan, 766 F. App’x 505, 506 (9th Cir. 2019). Because the law is well-settled that A.R.S. 6 § 13-1410 is not unconstitutionally vague, Grounds Four, Five, and Six, which rely on the 7 vagueness argument, are without merit. 8 Ground Seven alleges that Petitioner was denied effective assistance of PCR counsel 9 for failing to raise claims that both trial counsel and appellate counsel were ineffective. 10 The R&R correctly found that there is no constitutional right to an attorney in PCR 11 proceedings and therefore there is no constitutional right to effective assistance of PCR 12 counsel. Coleman v. Thompson, 501 U.S. 722, 752 (1991). The R&R correctly found that 13 Ground Seven is not a cognizable claim in this proceeding. 14 In his objections, Petitioner generally re-urges the claims he raised in his petition. 15 These arguments present no new facts or law. Re-arguing issues raised in the petition and 16 addressed in the R&R do not direct the Court to the portions of the R&R being challenged. 17 Repeated presentation of Petitioner’s claims is not a proper objection. See Sullivan v. 18 Schriro, CV-04-1517-PHX-DGC, 2006 WL 1516005, at * 2 (D. Ariz. May 30, 2006) 19 (dismissing objections because merely reiterating arguments raised prior to the issuance of 20 an R&R fails to provide a court with no guidance as to what portions of the R&R’s rulings 21 are incorrect). 22 IT IS ORDERED that Petitioner’s Objections to the R&R (Doc. 16) are 23 OVERRULED. The R&R (Doc.15) is ACCEPTED. Grounds One, Two, Three, and 24 Seven are DISMISSED WITH PREJUDICE and Grounds Four, Five, and Six are 25 DENIED. A Certificate of Appealability and leave to proceed in forma pauperis on appeal 26 are DENIED because the dismissal of the petition is justified by a plain procedural bar and 27 reasonable jurists would not find the ruling debatable, and because Petitioner has not made 28 1 || a substantial showing of the denial of a constitutional right. The Clerk of the Court shall || enter judgment accordingly and terminate this action. 3 Dated this 23rd day of October, 2020. 4 5 : Apues le 8 States Dictric Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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