1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Tony Brown, No. CV-19-05009-PHX-ROS
10 Petitioner, ORDER
11 v.
12 David Shinn,
13 Respondent. 14 15 Magistrate Judge Camille D. Bibles issued a Report and Recommendation (“R&R”) 16 recommending the Court find all of Petitioner’s claims procedurally defaulted. Both 17 Petitioner and Respondent filed objections. Because the R&R analyzed the incorrect 18 petition for writ of habeas corpus, the Court is required to reject it. However, the claims 19 set forth in the operative petition are, in fact, procedurally defaulted without excuse. 20 Therefore, the R&R will be rejected but the petition for writ of habeas corpus will be 21 denied. 22 BACKGROUND 23 Petitioner was charged with multiple crimes based on his involvement in a fight at 24 a convenience store. (Doc. 18 at 2). Petitioner was at the store with his acquaintance, John 25 Thorpe. Petitioner “cut in line and asked the cashier for a bus pass.” (Doc. 14-1 at 31). 26 Another patron objected which led to a fistfight between Petitioner and that patron. During 27 the fight, Petitioner “produced a handgun, held it up to [the other patron’s] . . . neck, and 28 pulled the trigger.” (Doc. 14-1 at 32). The gun did not fire because it was jammed. The 1 patron then ran across the street and contacted a police officer. The patron looked back 2 and saw Petitioner handing the gun to Thorpe. Shortly thereafter Thorpe and Petitioner 3 were arrested. A gun was found in Thorpe’s possession. 4 Petitioner was charged with aggravated assault and tampering with physical 5 evidence. At trial, the victim testified Petitioner had pushed a handgun against his neck 6 and pulled the trigger. Pursuant to a plea bargain, Thorpe testified similarly. Another 7 witness testified that he saw Petitioner hand something to Thorpe. That witness also 8 testified he saw a mark on the victim’s neck consistent with a weapon being pressed into 9 it. A police officer confirmed “marks on the victim’s neck . . . resembled the muzzle of a 10 gun.” (Doc. 14-1 at 132). Based on this evidence, Petitioner was convicted of aggravated 11 assault and tampering with physical evidence. 12 Petitioner appealed his convictions but made only two arguments. His first 13 argument was that the prosecutor had engaged in misconduct by “repeatedly impugn[ing] 14 defense counsel” during closing arguments. In particular, Petitioner complained the 15 prosecutor had compared defense counsel to “an illusionist attempting to distract or fool 16 the jury.” (Doc. 14-1 at 39). Petitioner argued those statements deprived him “of his due 17 process right to a fair trial.” (Doc. 14-1 at 38). Petitioner’s second argument was that the 18 trial court had miscalculated the amount of presentence incarceration credit. The Arizona 19 Court of Appeals rejected Petitioner’s prosecutorial misconduct argument but agreed the 20 amount of presentence incarceration credit was incorrect. Therefore, Petitioner’s 21 convictions were affirmed but his sentence modified to include the correct amount of 22 credit. 23 Petitioner filed a petition for review with the Arizona Supreme Court. (Doc. 14-1 24 at 79). That petition raised the single issue of prosecutorial misconduct based on the 25 comments during closing arguments. While that petition was pending, Petitioner filed a 26 “supplement” arguing “the prosecutor and police in this case suborned perjury.” (Doc. 14- 27 1 at 85). The supplement argued the “victim in this case lied about everything, and the 28 prosecutor and police either knew or should have known that [the victim] was 1 prevaricating.” (Doc. 14-1 at 86). The supplement referenced and included an “affidavit” 2 from John Thorpe. That affidavit stated, in relevant part, that Thorpe’s trial testimony “was 3 perjured testimony, concocted during a ‘free talk’ with” a prosecutor and police officer. 4 (Doc. 14-1 at 89-90). Thorpe further stated Petitioner “never pulled a gun during the fight 5 . . . because he didn’t have a gun.” According to Thorpe, the gun was in “the waistband of 6 [his] pants, and the gun fell out onto the payment as [he] tried to intervene and stop the 7 fight.” (Doc. 14-1 at 90). The Arizona Supreme Court summarily denied review. (Doc. 8 14-1 at 93). 9 Shortly after the Arizona Supreme Court denied review, Petitioner filed a “Notice 10 of Post-Conviction Relief” in the state trial court. Counsel was appointed and that counsel 11 filed a formal petition arguing Thorpe’s affidavit was “newly discovered evidence” that 12 merited an evidentiary hearing. (Doc. 14-1 at 105). That petition referenced “the Fifth, 13 Sixth, and Fourteenth Amendments to the United States Constitution,” but it did not make 14 any arguments based on those amendments. (Doc. 14-1 at 104). Instead, the petition was 15 solely focused on obtaining an evidentiary hearing regarding the Thorpe affidavit. After 16 the state responded, Petitioner’s reply again focused on obtaining an evidentiary hearing. 17 The reply cited “the Fifth, Sixth, Eighth and Fourteenth Amendments to the U.S. Const.” 18 but, like the initial petition, it did not make any substantive arguments under those 19 amendments. 20 The trial court denied the post-conviction relief petition. In doing so the trial court 21 concluded “an evidentiary hearing is not warranted because Mr. Thorpe’s recantation is 22 not credible.” Sufficient other evidence supported the verdict and “[e]ven if Thorpe had 23 testified consistent with his affidavit, it is highly improbable that it would have changed 24 the verdict.” (Doc. 14-1 at 146). Petitioner sought review by the Arizona Court of Appeals, 25 again focusing exclusively on the argument that the Thorpe affidavit entitled him to an 26 evidentiary hearing. (Doc. 14-2 at 8). The Arizona Court of Appeals granted review but 27 denied relief, concluding the trial court did not abuse its discretion. (Doc. 14-2 at 31). 28 Petitioner then filed his federal petition. (Doc. 1). 1 The original federal petition was dismissed because Petitioner had not alleged he 2 was “in custody in violation of the Constitution or the law or treaties of the United States.” 3 (Doc. 4 at 2). Petitioner was informed he could amend his petition but, if he chose to do 4 so, he had to “specifically allege in each ground the particular federal constitutional right 5 allegedly violated.” (Doc. 4 at 2). Petitioner filed an amended petition which the Court 6 interpreted as raising the following four grounds for relief: 7 1. Petitioner’s Fifth and Fourteenth Amendment due process rights were violated when 8 an eyewitness later recanted his testimony; 9 2. Petitioner’s Fifth Amendment rights were violated by prosecutorial conduct when 10 the prosecutor allowed Thorpe to testify; 11 3. Petitioner’s Fifth Amendment rights were violated when Arizona courts 12 “discount[ed] the validity of Petitioner’s newly discovered evidence without 13 conducting an evidentiary hearing”; and 14 4. Petitioner was denied due process, in violation of the Fifth Amendment, based on 15 the state post-conviction court not allowing him to make a record. 16 (Doc. 8 at 2). Respondent answered the amended petition and argued all four of these 17 claims were procedurally defaulted. (Doc. 14). 18 The R&R erroneously examined the claims set forth in the original petition instead 19 of the amended petition. (Doc. 18). Therefore, the R&R’s analysis cannot be adopted. 20 The Court will determine, in the first instance, whether the claims set forth in the amended 21 petition are procedurally defaulted. 22 ANALYSIS 23 A state prisoner must “exhaust available state judicial remedies before a federal 24 court will entertain his petition for habeas corpus.” Poyson v. Ryan, 879 F.3d 875, 894 25 (9th Cir. 2018).
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Tony Brown, No. CV-19-05009-PHX-ROS
10 Petitioner, ORDER
11 v.
12 David Shinn,
13 Respondent. 14 15 Magistrate Judge Camille D. Bibles issued a Report and Recommendation (“R&R”) 16 recommending the Court find all of Petitioner’s claims procedurally defaulted. Both 17 Petitioner and Respondent filed objections. Because the R&R analyzed the incorrect 18 petition for writ of habeas corpus, the Court is required to reject it. However, the claims 19 set forth in the operative petition are, in fact, procedurally defaulted without excuse. 20 Therefore, the R&R will be rejected but the petition for writ of habeas corpus will be 21 denied. 22 BACKGROUND 23 Petitioner was charged with multiple crimes based on his involvement in a fight at 24 a convenience store. (Doc. 18 at 2). Petitioner was at the store with his acquaintance, John 25 Thorpe. Petitioner “cut in line and asked the cashier for a bus pass.” (Doc. 14-1 at 31). 26 Another patron objected which led to a fistfight between Petitioner and that patron. During 27 the fight, Petitioner “produced a handgun, held it up to [the other patron’s] . . . neck, and 28 pulled the trigger.” (Doc. 14-1 at 32). The gun did not fire because it was jammed. The 1 patron then ran across the street and contacted a police officer. The patron looked back 2 and saw Petitioner handing the gun to Thorpe. Shortly thereafter Thorpe and Petitioner 3 were arrested. A gun was found in Thorpe’s possession. 4 Petitioner was charged with aggravated assault and tampering with physical 5 evidence. At trial, the victim testified Petitioner had pushed a handgun against his neck 6 and pulled the trigger. Pursuant to a plea bargain, Thorpe testified similarly. Another 7 witness testified that he saw Petitioner hand something to Thorpe. That witness also 8 testified he saw a mark on the victim’s neck consistent with a weapon being pressed into 9 it. A police officer confirmed “marks on the victim’s neck . . . resembled the muzzle of a 10 gun.” (Doc. 14-1 at 132). Based on this evidence, Petitioner was convicted of aggravated 11 assault and tampering with physical evidence. 12 Petitioner appealed his convictions but made only two arguments. His first 13 argument was that the prosecutor had engaged in misconduct by “repeatedly impugn[ing] 14 defense counsel” during closing arguments. In particular, Petitioner complained the 15 prosecutor had compared defense counsel to “an illusionist attempting to distract or fool 16 the jury.” (Doc. 14-1 at 39). Petitioner argued those statements deprived him “of his due 17 process right to a fair trial.” (Doc. 14-1 at 38). Petitioner’s second argument was that the 18 trial court had miscalculated the amount of presentence incarceration credit. The Arizona 19 Court of Appeals rejected Petitioner’s prosecutorial misconduct argument but agreed the 20 amount of presentence incarceration credit was incorrect. Therefore, Petitioner’s 21 convictions were affirmed but his sentence modified to include the correct amount of 22 credit. 23 Petitioner filed a petition for review with the Arizona Supreme Court. (Doc. 14-1 24 at 79). That petition raised the single issue of prosecutorial misconduct based on the 25 comments during closing arguments. While that petition was pending, Petitioner filed a 26 “supplement” arguing “the prosecutor and police in this case suborned perjury.” (Doc. 14- 27 1 at 85). The supplement argued the “victim in this case lied about everything, and the 28 prosecutor and police either knew or should have known that [the victim] was 1 prevaricating.” (Doc. 14-1 at 86). The supplement referenced and included an “affidavit” 2 from John Thorpe. That affidavit stated, in relevant part, that Thorpe’s trial testimony “was 3 perjured testimony, concocted during a ‘free talk’ with” a prosecutor and police officer. 4 (Doc. 14-1 at 89-90). Thorpe further stated Petitioner “never pulled a gun during the fight 5 . . . because he didn’t have a gun.” According to Thorpe, the gun was in “the waistband of 6 [his] pants, and the gun fell out onto the payment as [he] tried to intervene and stop the 7 fight.” (Doc. 14-1 at 90). The Arizona Supreme Court summarily denied review. (Doc. 8 14-1 at 93). 9 Shortly after the Arizona Supreme Court denied review, Petitioner filed a “Notice 10 of Post-Conviction Relief” in the state trial court. Counsel was appointed and that counsel 11 filed a formal petition arguing Thorpe’s affidavit was “newly discovered evidence” that 12 merited an evidentiary hearing. (Doc. 14-1 at 105). That petition referenced “the Fifth, 13 Sixth, and Fourteenth Amendments to the United States Constitution,” but it did not make 14 any arguments based on those amendments. (Doc. 14-1 at 104). Instead, the petition was 15 solely focused on obtaining an evidentiary hearing regarding the Thorpe affidavit. After 16 the state responded, Petitioner’s reply again focused on obtaining an evidentiary hearing. 17 The reply cited “the Fifth, Sixth, Eighth and Fourteenth Amendments to the U.S. Const.” 18 but, like the initial petition, it did not make any substantive arguments under those 19 amendments. 20 The trial court denied the post-conviction relief petition. In doing so the trial court 21 concluded “an evidentiary hearing is not warranted because Mr. Thorpe’s recantation is 22 not credible.” Sufficient other evidence supported the verdict and “[e]ven if Thorpe had 23 testified consistent with his affidavit, it is highly improbable that it would have changed 24 the verdict.” (Doc. 14-1 at 146). Petitioner sought review by the Arizona Court of Appeals, 25 again focusing exclusively on the argument that the Thorpe affidavit entitled him to an 26 evidentiary hearing. (Doc. 14-2 at 8). The Arizona Court of Appeals granted review but 27 denied relief, concluding the trial court did not abuse its discretion. (Doc. 14-2 at 31). 28 Petitioner then filed his federal petition. (Doc. 1). 1 The original federal petition was dismissed because Petitioner had not alleged he 2 was “in custody in violation of the Constitution or the law or treaties of the United States.” 3 (Doc. 4 at 2). Petitioner was informed he could amend his petition but, if he chose to do 4 so, he had to “specifically allege in each ground the particular federal constitutional right 5 allegedly violated.” (Doc. 4 at 2). Petitioner filed an amended petition which the Court 6 interpreted as raising the following four grounds for relief: 7 1. Petitioner’s Fifth and Fourteenth Amendment due process rights were violated when 8 an eyewitness later recanted his testimony; 9 2. Petitioner’s Fifth Amendment rights were violated by prosecutorial conduct when 10 the prosecutor allowed Thorpe to testify; 11 3. Petitioner’s Fifth Amendment rights were violated when Arizona courts 12 “discount[ed] the validity of Petitioner’s newly discovered evidence without 13 conducting an evidentiary hearing”; and 14 4. Petitioner was denied due process, in violation of the Fifth Amendment, based on 15 the state post-conviction court not allowing him to make a record. 16 (Doc. 8 at 2). Respondent answered the amended petition and argued all four of these 17 claims were procedurally defaulted. (Doc. 14). 18 The R&R erroneously examined the claims set forth in the original petition instead 19 of the amended petition. (Doc. 18). Therefore, the R&R’s analysis cannot be adopted. 20 The Court will determine, in the first instance, whether the claims set forth in the amended 21 petition are procedurally defaulted. 22 ANALYSIS 23 A state prisoner must “exhaust available state judicial remedies before a federal 24 court will entertain his petition for habeas corpus.” Poyson v. Ryan, 879 F.3d 875, 894 25 (9th Cir. 2018). To do so, a state prisoner must “present the substance of his claim to the 26 state courts, including a reference to a federal constitutional guarantee and a statement of 27 facts that entitle the petitioner to relief.” Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 28 2009). If a prisoner fails to do so, and some procedural barrier prevents him from going to 1 state court to do so, his federal claims are “procedurally defaulted.” A federal court cannot 2 reach the merits of procedurally defaulted claims unless an exception applies. Smith v. 3 Baldwin, 510 F.3d 1127, 1139 (9th Cir. 2007). Here, there is no dispute the claims in 4 Petitioner’s amended federal petition were not raised in state court. That is, neither on 5 direct appeal nor during his state post-conviction relief proceedings did Petitioner develop 6 an argument that his federal rights were violated based on the facts and theories set forth 7 in his amended federal petition.1 Petitioner cannot now return to state court to assert such 8 claims, meaning they are procedurally defaulted. Accordingly, the Court can reach the 9 merits of Petitioner’s claims only if an exception to procedural default applies. 10 The first possible exception requires Petitioner show “a constitutional violation 11 probably has caused the conviction of one innocent of the crime.” Id. To take advantage 12 of this exception, Petitioner must show “in light of all available evidence, it is more likely 13 than not that no reasonable juror would convict him of the relevant crime.” Smith v. 14 Baldwin, 510 F.3d 1127, 1140 (9th Cir. 2007). Here, the Thorpe affidavit is not sufficient 15 to establish no juror would have convicted Petitioner. Given the testimony from the victim, 16 another witness, and the police officer, Petitioner still could have been convicted even if 17 Thorpe had testified consistent with his affidavit. Accordingly, Thorpe’s affidavit is 18 insufficient to establish Petitioner can use the “actual innocence” exception to avoid 19 procedural default. 20 The second exception requires the prisoner establish “cause and prejudice for his 21 failure to exhaust his state court remedies.” Id. This exception requires Petitioner 22 “demonstrate cause for the default and actual prejudice as a result of the alleged violation 23 of federal law.” Id. at 1146. “[T]o establish cause for a procedural default, a petitioner 24 must demonstrate that the default is due to an external objective factor that cannot fairly be
25 1 In his post-conviction relief proceedings, Petitioner made vague references to multiple federal constitutional amendments but such references were not sufficient to exhaust any 26 federal claims. “[I]t it is not enough to make a general appeal to a constitutional guarantee as broad as due process to” satisfy the exhaustion requirement. Gray v. Netherland, 518 27 U.S. 152, 163 (1996). See also Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir. 2000) (noting “a federal claim has not been exhausted in state court unless the petitioner both 28 raised the claim in state court and explicitly indicated then that the claim was a federal one”). 1 || attributed to him.” Jd. 2 Petitioner argues the failure to present his claims in state court should be attributed to his counsel, not him. (Doc. 20 at 3). Petitioner believes it would be “ridiculous and 4|| patently unfair” to allow his counsel’s failures to result in a procedural bar. (Doc. 20 at 3). || But Petitioner’s attorney’s actions or inactions cannot be used to avoid procedural default.’ 6|| Coleman v. Thompson, 501 U.S. 722, 752 (1991). Therefore, Petitioner has not established 7\| “cause” for his procedural default. 8 Accordingly, 9 IT IS ORDERED the Report and Recommendation (Doc. 18) is REJECTED. 10 IT IS FURTHER ORDERED the Amended Petition for Writ of Habeas Corpus |) (Doc. 7) is DENIED and DISMISSED WITH PREJUDICE. 12 IT IS FURTHER ORDERED a Certificate of Appealability is DENIED because 13 || dismissal of the petition is justified by a procedural bar and jurists of reason would not find the procedural ruling debatable. 15 Dated this 2nd day of September, 2021. 16 fo . 17 f —— I 19 Senior United States District Judge 20 21 22 23 24 25 26 > There is a very limited exception to this rule: “Inadequate assistance of counsel at initial- 271) review collateral proceedings may establish cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.” Martinez v. Ryan, 566 U.S. 1, 9 (2012). Petitioner has never attempted to assert an ineffective assistance of counsel based on his trial counsel’s performance. -6-