David Anthony Salazar v. Charles L. Ryan, et al.

• Court: District Court, D. Arizona
• Decided: February 22, 2018
• Docket: 2:17-cv-01132
• Status: Unknown

Opinion

1 2

6 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 7 David Anthony Salazar, 8 Petitioner CV-17-1132-PHX-JAT (JFM) -vs- 9 Charles L. Ryan, et al., Report & Recommendation Respondents. on Petition for Writ of Habeas Corpus 10 11 I. MATTER UNDER CONSIDERATION 12 Petitioner, presently incarcerated in the Arizona State Prison Complex at 13 Kingman, Arizona, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 14 2254 on April 14, 2017 (Doc. 1). On July 3, 2017, Respondents filed their Limited 15 Answer (Doc. 13). Petitioner filed a Reply on August 9, 2017 (Doc. 19). 16 The Petitioner's Petition is now ripe for consideration. Accordingly, the 17 undersigned makes the following proposed findings of fact, report, and recommendation 18 pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules 19 of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil 20 Procedure. 21 II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND 22 A. FACTUAL BACKGROUND 23 The Presentence Investigation Report summarized the factual background as 24 follows: 25 On July 23, 2011 at 11:25 p.m., police responded to the 26 defendant's house in reference to a domestic disturbance. The defendant was not present when police arrived and his wife, [H.S.], 27 explained an argument had ensued ·after their eleven-year old 1 this maOttne rA. p rDil u2r6in, g2 0a1n2 tihnete rdveifeewnd, ahnet wdaesn iteadk eenv einr tot ocuucshtoindgy hfoisr 2 daughter and stated his children were telling these lies because they hated him. 3 (Exhibit O, at 1-2.) (Exhibits to the Answer, Doc. 13, are referenced herein as “Exhibit 4 ___.”) 5

6 B. PROCEEDINGS AT TRIAL 7 On May 4, 2012, Petitioner was indicted in Maricopa County Superior Court on 8 10 counts of sexual conduct with a minor, one count of public sexual indecency to a 9 minor, and one count of furnishing obscene or harmful items to a minor. (Exhibit F, 10 Indictment.) The state filed an Allegation of Prior Felony Conviction (Exhibit H), 11 alleging priors including theft and escape, and an Allegation of Aggravating 12 Circumstances (Exhibit I), alleging harm to the victim, abuse of trust, multiple victims, 13 and victims of young age. 14 Petitioner eventually entered into a written Plea Agreement (Exhibit J), agreeing 15 to plead guilty to one count of attempted sexual conduct with a minor, and two amended 16 counts of attempted molestation of a child, with the stipulation that Petitioner would be 17 sentenced to no less than the presumptive term on the sexual conduct charge, and 18 lifetime probation on the attempt charges. The remaining charges and allegations of 19 priors were to be dismissed. Petitioner entered his change of plea on October 1, 2013. 20 (Exhibit K, M.E. 10/1/13; Exhibit L, R.T. 10/1/13.) 21 On November 7, 2013, the trial court sentenced Petitioner to the maximum term 22 of 15 years on the attempted sexual conduct charge, and suspended sentences and 23 lifetime probation on the other charges. (Exhibit P Sentence 11/7/13; Exhibit Q, R.T. 24 11/7/13.) 25 26 C. FIRST THREE PROCEEDINGS ON POST-CONVICTION RELIEF 1. First PCR Proceeding 27 1 relief (“PCR”) proceeding on December 9, 2013, by filing his first Notice of Post- 2 Conviction Relief (Exhibit R). Counsel was appointed (Exhibit S, M.E. 12/26/13), but 3 ultimately filed a Notice of Completion (Exhibit T) evidencing an inability to find an 4 issue for review. Counsel was ordered to remain in an advisory capacity, and Petitioner 5 was granted leave to file a pro per PCR petition. (Exhibit U, M.E. 6/24/14.) 6 On September 23, 2014, Petitioner filed his pro per PCR Petition (Exhibit W), 7 arguing a denial of due process in the application of aggravating factors based on double 8 counting and lack of notice, violation of due process based on a breach of the plea 9 agreement, and ineffective assistance of counsel based on a failure to investigate and 10 counsel’s illness. After briefing, on February 18, 2015 the PCR court summarily denied 11 the claims on the merits. (Exhibit Z, Order 2/18/15.) 12 Petitioner then sought two extensions of time to petition for review, ultimately 13 being granted through July 24, 2015 to file a petition for review. (Exhibit AA, Motion; 14 Exhibit BB, Order 4/13/15; Exhibit CC, Motion; Exhibit EE, Order 7/7/15.) 15 Petitioner alleges in the Petition that he subsequently sought review of his first 16 PCR proceeding by the Arizona Court of Appeals (Doc. 1 at 5). Petitioner makes no 17 assertion that a petition for review was timely filed, but instead argues in his reply that 18 after the dismissal of his first PCR proceeding he was transferred between prison units, 19 had limited legal resources, and floundered until moving to the prison in “Kingman 20 February 27, 2017,” where he “found a jailhouse lawyer who misfiled a Petition for 21 Review [Doc #98].” (Reply, Doc. 19 at 6-7 (bracketed information in original).) 22 In fact, on February 27, 2017, Petitioner did make a filing with the Arizona Court 23 of Appeals, when he filed his “Notice of Appeal” (Exhibit KK). This notice did not 24 reference the PCR court decision of February 18, 2015, but instead sought to appeal the 25 judgment “entered in the Superior Court in Maricopa County, on October 1, 2013.” 26 Petitioner also filed, on March 9, 2017 a “Petition for Review” (Exhibit MM), but 27 this also sought review of “the decision of the trial court in the above-entitled cause 1 February 18, 2015 order on the PCR petition. The Arizona Court of Appeals ultimately 2 construed it as seeking review of the dismissal of the Petitioners’ second and third 3 “petition for post-conviction relief on January 4, 2017.” (Exhibit NN, Order 3/22/17.) 4 Thus, Petitioner certainly did not seek timely review of the denial of his first PCR 5 petition, and the undersigned finds that Petitioner never sought review of the denial at 6 all. 7 2. Second and Third PCR Proceeding 8 On November 21, 2016, over 21 months after dismissal of the first PCR 9 proceeding, Petitioner commenced his second PCR proceeding by filing his second PCR 10 Notice (Exhibit FF). He subsequently filed a third PCR Notice (Exhibit GG) on 11 December 19, 2016. 12 On January 4, 2017, the PCR court summarily dismissed these proceedings. The 13 court found the notices untimely. Although noting that Petitioner relied on the 14 exceptions to the timeliness rule for newly discovered material facts, the PCR court 15 found that the exceptions did not apply because: (1) the new discoveries were merely of 16 claims, not facts; (2) no diligence was shown; (3) Petitioner did not show counsel was 17 also unaware of any new facts. The court then dismissed the proceedings pursuant to 18 “Arizona Rule of Criminal Procedure 32.2(b)”, the provision providing exceptions to the 19 time and waiver bars. (Exhibit HH at 3.) 20 On January 9, 2017, Petitioner filed a “Supplemental Rule 32 Notice Petition for 21 Post-Conviction Relief” (Exhibit II). On January 31, 2017, the PCR court struck this as 22 an unauthorized supplement, and on the basis that it asserted new, untimely claims. 23 (Exhibit JJ, Order 1/31/17.) 24 On March 9, 2017 (65 days after the dismissal order), Petitioner filed a Petition 25 for Review (Exhibit MM), which as discussed hereinabove, purported to seek review of 26 “the decision of the trial court in the above-entitled cause entered January 7, 2013.” 27 1 of Petitioner’s second and third “petition for post-conviction relief on January 4, 2017.” 2 (Exhibit NN, Order 3/22/17.) On March 22, 2017, the Petition for Review was 3 dismissed as untimely, having been filed more than 30 days after the PCR court’s order. 4 (Id.) 5 D. PROCEEDINGS ON DIRECT APPEAL 6 Meanwhile, on February 27, 2017, Petitioner filed the above referenced “Notice 7 of Appeal from Superior Court” (Exhibit KK), appealing his conviction. On March 8, 8 2017, the appeal was dismissed as untimely. (Exhibit LL, Order 3/8/17). 9

10 E. FOURTH PROCEEDING ON POST-CONVICTION RELIEF 11 The following month, on April 17, 2017, Petitioner commenced his fourth PCR 12 proceeding by filing a “Petition for Leave to File an Untimely Petition for Post- 13 Conviction Relief” (Exhibit OO). The PCR Court construed this as a PCR Notice 14 asserting a claim based on newly discovered material facts, and on June 12, 2017 15 dismissed it as without merit. (Exhibit PP, Order 6/12/17.) 16

17 F. PRESENT FEDERAL HABEAS PROCEEDINGS 18 Petition – In the meantime, just before commencing his fourth PCR proceeding, 19 Petitioner commenced the current case by filing his Petition for Writ of Habeas Corpus 20 pursuant to 28 U.S.C. § 2254 on April 14, 2017 (Doc. 1). Petitioner’s Petition asserts the 21 following three grounds for relief:

22 In Ground One, Petitioner claims that he was denied due process because the attempted molestation counts were not charged 23 in the indictment. He contends that in the plea agreement, the State changed the charges from sexual conduct to attempted molestation. 24 In Ground Two, Petitioner asserts that the trial court abused its discretion by aggravating his sentence. He contends that the trial 25 court “never established two or more aggravating factors on the record,” alleging that the trial court used elements of the offense to 26 aggravate his sentence, but “did not establish how either could be aggravating enough to escape the presumptive sentence.” 27 In Ground Three, Petitioner claims that the trial court 1 to impose the terms.” 2 (Service Order 5/26/17, Doc. 5 at 2.) 3 Response - On July 3, 2017, Respondents filed their Limited Answer (Doc. 13). 4 Respondents argue that the petition is untimely, Petitioner’s state remedies are 5 procedurally defaulted, Ground 2 and 3 are state law claims not cognizable on habeas,1 6 and Ground 1 was waived by his guilty plea. 7 Reply - On August 9, 2017, Petitioner filed a Reply (Doc. 19). Petitioner 8 concedes his Petition is untimely, but argues that the AEDPA does not apply to him 9 because he is not a terrorist (id. at 9), and he is entitled to equitable tolling because of his 10 prison moves and resulting lack of resources and confusion and his diligence in pursuing 11 his state remedies (id. at 12-13, 15). He further argues he is entitled to statutory tolling. 12 (Id. at 13.) 13 Petitioner further argues that any failure to properly exhaust his state remedies 14 should be excused because of his lack of legal resources, and the absence of a hearing on 15 his claims. (Id. at 14-16.) 16 Petitioner argues he should have an evidentiary hearing and counsel appointed. 17 18 III. APPLICATION OF LAW TO FACTS A. TIMELINESS 19 1. One Year Limitations Period 20 Respondents assert that Petitioner’s Petition is untimely. As part of the Anti- 21 Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Congress provided a 1- 22 year statute of limitations for all applications for writs of habeas corpus filed pursuant to 23 28 U.S.C. § 2254, challenging convictions and sentences rendered by state courts. 28 24 U.S.C. § 2244(d). Petitions filed beyond the one year limitations period are barred and 25 must be dismissed. Id. 26 27 1 Petitioner argues that he cannot be subject to this limitation because he was not 2 charged with a crime of terrorism. However, nothing in the AEDPA restricts the habeas 3 statute of limitations to crimes of terrorism, or any other particular crimes. Rather, the 4 one year time limit applies broadly to “an application for a writ of habeas corpus by a 5 person in custody pursuant to the judgment of a State court.” See 28 U.S.C. § 6 2244(d)(1). “[T]he title of a statute and the heading of a section cannot limit the plain 7 meaning of the text.” Bhd. of R. R. Trainmen v. Baltimore & O. R. Co., 331 U.S. 519, 8 528–29 (1947). The instant petition is one for a writ of habeas corpus, and Petitioner is 9 in custody pursuant to the judgment of a state court. Thus, Petitioner is subject to the 10 limitations period. 11 2. Commencement of Limitations Period 12 a. Conviction Final 13 The one-year statute of limitations on habeas petitions generally begins to run on 14 "the date on which the judgment became final by conclusion of direct review or the 15 expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A).2 16 For an Arizona noncapital pleading defendant, the conviction becomes “final” at 17 the conclusion of the first “of-right” post-conviction proceeding under Rule 32. 18 “Arizona's Rule 32 of-right proceeding for plea-convicted defendants is a form of direct 19 review within the meaning of 28 U.S.C. § 2244(d)(1)(A).” Summers v. Schriro, 481 20 F.3d 710, 717 (9th Cir. 2007). “To bring an of-right proceeding under Rule 32, a plea- 21 convicted defendant must provide to the Arizona Superior Court, within 90 days of 22 conviction and sentencing in that court, notice of his or her intent to file a Petition for 23 Post-Conviction Review.” Id. at 715 (citing Ariz. R.Crim. P. 32.4(a)). 24 25

26 2 Later commencement times can result from a state created impediment, newly recognized constitutional rights, and newly discovered factual predicates for claims. See 27 28 U.S.C. § 2244(d)(1)(B)-(D). Except as discussed hereinafter, Petitioner proffers no 1 Here, Petitioner’s sentence was issued on November 7, 2013. His first PCR 2 proceeding was filed on Monday, December 9, 2013, and thus was a timely, of-right 3 PCR proceeding. 4 That proceeding remained pending until July 24, 2015, when Petitioner’s 5 extended time to file a petition for review expired. (See Exhibit EE, Order 7/7/15.) 6 Petitioner did not file such petition for review, and thus his conviction became final on 7 July 24, 2015, with the expiration of time for review. 8 For purposes of 28 U.S.C. § 2244, “direct review" includes the period within 9 which a petitioner can file a petition for a writ of certiorari from the United States 10 Supreme Court, whether or not the petitioner actually files such a petition. Gonzalez v. 11 Thaler, 565 U.S. 134, 150 (2012). The Supreme Court “can review, however, only 12 judgments of a ‘state court of last resort’ or of a lower state court if the ‘state court of 13 last resort’ has denied discretionary review.” Gonzalez v. Thaler, 565 U.S. 134, 154 14 (2012) (citing U.S. Sup.Ct. R. 13.1 and 28 U.S.C. § 1257(a)). Here, Petitioner did not 15 seek direct review by the Arizona Supreme Court. Accordingly, the time for seeking a 16 writ of certiorari with the U.S. Supreme Court cannot be considered in determining when 17 Petitioner's judgment became final. Id. 18 Thus, Petitioner’s one year began running on July 25, 2015, and without tolling, 19 expired one year later, on July 24, 2016.3 20 21 b. Newly Discovered Facts 22 Although the conclusion of direct review normally marks the beginning of the 23 3 Respondents calculate the expiration date as one day later, on July 25, 2016. (Answer, 24 Doc. 13 at 15.) For purposes of counting time for a federal statute of limitations, the standards in Federal Rule of Civil Procedure 6(a) apply. Patterson v. Stewart, 251 F.3d 25 1243, 1246 (9th Cir. 2001). Rule 6(a)(1)(A) directs that the “the day of the event that triggers the period” is excluded. Thus, the one year commenced the day after 26 Petitioner’s conviction became final, or on July 25, 2015 (day one), and the last day was 364 days later, on July 24, 2016. See Patterson v. Stewart, 251 F.3d 1243 1246 (9th Cir. 27 2001) (applying “anniversary method” under Rule 6(a) to find that one year grace period 1 statutory one year, section 2244(d)(1)(D) does provide an alternative of “the date on 2 which the factual predicate of the claim or claims presented could have been discovered 3 through the exercise of due diligence.” Thus, where despite the exercise of due diligence 4 a petitioner was unable to discover the factual predicate of his claim, the statute does not 5 commence running on that claim until the earlier of such discovery or the elimination of 6 the disability which prevented discovery. 7 Thus, the commencement is not delayed until actual discovery, but only until the 8 date on which it “could have been discovered through the exercise of due diligence.” 28 9 U.S.C. § 2244(d)(1)(D). 10 Petitioner has repeatedly complained that he was only able to discovery claims 11 when his access to legal resources (including a jailhouse lawyer) were improved upon 12 transfer from prison to prison. 13 However, it is only the facts whose belated discovery is a trigger, not their legal 14 significance. Hasan v. Galaza, 254 F.3d 1150, 1154 n. 3 (9th Cir. 2001). See also Means, 15 Federal Habeas Manual § 9A:34 (citing Hasan and Flanagan v. Johnson, 154 F.3d 196, 16 199 (5th Cir. 1998)). The rationale is well put by the Seventh Circuit:

17 Like most members of street gangs, Owens is young, has a limited education, and knows little about the law. If these considerations 18 delay the period of limitations until the prisoner has spent a few years in the institution's law library, however, then § 2244(d)(1) 19 might as well not exist; few prisoners are lawyers. 20 Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000), as amended (Jan. 22, 2001). 21 Petitioner has proffered nothing to suggest that he has only recently discovered 22 the relevant facts of his claims, only an understanding of their legal significance. That is 23 not sufficient to trigger the later start date of § 2244(d)(1)(D). 24 Thus, the finality of his conviction remains the proper commencement date for his 25 habeas limitations period. 26 27 c. Conclusion re Commencement 1 tolling, expired one year later, on July 24, 2016 2 3. Timeliness Without Tolling 3 Petitioner’s Petition (Doc. 1) was filed on April 14, 2017. 4 However, the Petition includes an avowal that it was “placed in the prison mailing 5 system on 04-11-17.” The envelope (Doc. 1-1) reflects a postage mark dated April 11, 6 2017. “In determining when a pro se state or federal petition is filed, the ‘mailbox’ rule 7 applies. A petition is considered to be filed on the date a prisoner hands the petition to 8 prison officials for mailing.” Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010). 9 Respondents proffer nothing to counter Petitioner’s avowals, and thus the undersigned 10 finds that Petitioner’s Petition must be deemed filed as of April 11, 2017. 11 As determined in subsection (2) above, without any tolling Petitioner’s one year 12 habeas limitations period expired no later than July 24, 2016, making his April 11, 2017 13 Petition over eight months delinquent. 14

15 4. Statutory Tolling 16 The AEDPA provides for tolling of the limitations period when a "properly filed 17 application for State post-conviction or other collateral relief with respect to the pertinent 18 judgment or claim is pending." 28 U.S.C. § 2244(d)(2). This provision only applies to 19 state proceedings, not to federal proceedings. Duncan v. Walker, 533 U.S. 167 (2001). 20 Properly Filed - Statutory tolling of the habeas limitations period only results 21 from state applications that are “properly filed,” and an untimely application is never 22 “properly filed” within the meaning of § 2244(d)(2). Pace v. DiGuglielmo, 544 U.S. 408 23 (2005). 24 On the other hand, the fact that the application may contain procedurally barred 25 claims does not mean it is not “properly filed.” “[T]he question whether an application 26 has been ‘properly filed’ is quite separate from the question whether the claims 27 contained in the application are meritorious and free of procedural bar.” Artuz v. 1 Bennett, 531 U.S. 4, 9 (2000). Therefore, even if the state court provides alternative 2 grounds for disposing of the state application, a ruling that the application was untimely 3 precludes it from being “properly filed” and tolling the limitations period. Carey v. 4 Saffold, 536 U.S. 214, 225-26 (2002). 5 Moreover, if the state court summarily disposes of a state application without 6 identifying if it was on timeliness grounds, or otherwise fails to give a clear indication 7 whether it has deemed the application timely or untimely, the federal habeas court “must 8 itself examine the delay in each case and determine what the state courts would have 9 held in respect to timeliness.” Evans v. Chavis, 546 U.S. 189, 198 (2006). 10 For purposes of applying the “properly filed” requirement of § 2244(d), the 11 federal courts look to the “last reasoned decision” of the state courts. Curiel v. Miller, 12 830 F.3d 864, 869 (9th Cir. 2016). 13 Mailbox Rule - For purposes of calculating tolling under § 2244(d), the federal 14 prisoner “mailbox rule” applies. Under this rule, a prisoner’s state filings are deemed 15 “filed” (and tolling thus commenced) when they are delivered to prison officials for 16 mailing. In Anthony v. Cambra, 236 F.3d 568 (9th Cir. 2000), the Ninth Circuit noted:

17 [I]n Saffold v. Newland, 224 F.3d 1087 (9th Cir.2000), we squarely held that the mailbox rule applies with equal force to the filing of 18 state as well as federal petitions, because "[a]t both times, the conditions that led to the adoption of the mailbox rule are present; 19 the prisoner is powerless and unable to control the time of delivery of documents to the court." Id. at 1091. 20 Id. at 575. 21 Similarly, the “mailbox rule” applies to determining whether an Arizona 22 prisoner’s state filings were timely. Although a state may direct that the prison mailbox 23 rule does not apply to filings in its court, see Orpiada v. McDaniel, 750 F.3d 1086, 1090 24 (9th Cir. 2014), Arizona has applied the rule to a variety of its state proceedings. See e.g. 25 Mayer v. State, 184 Ariz. 242, 245, 908 P.2d 56, 59 (App.1995) (notice of direct appeal); 26 State v. Rosario, 195 Ariz. 264, 266, 987 P.2d 226, 228 (App.1999) (PCR notice); State 27 1 Arizona Supreme Court). 2 Application to Petitioner - Petitioner’s limitations period commenced running 3 on July 25, 2015 and expired on July 24, 2016. Petitioner’s second PCR proceeding was 4 not commenced until November 21, 2016, when Petitioner filed his second PCR Notice 5 (Exhibit FF).4 At that time, his one year had been expired for almost four months. Once 6 the statute has run, a subsequent post-conviction or collateral relief filing does not reset 7 the running of the one year statute. Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001); 8 Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). Accordingly, Petitioner has 9 no statutory tolling resulting from his second PCR proceeding, or from his third or 10 fourth, nor from his untimely notice of appeal. 11 Furthermore, Petitioner’s second and third PCR petitions were deemed untimely. 12 (See Exhibit HH, Order 1/4/17.) Likewise his Petition for Review was dismissed as 13 untimely. (See Exhibit NN, Order 3/22/17.) As was his attempted direct appeal. (See 14 Exhibit LL, Order 3/8/17.) Accordingly, these proceedings could not have, in any event 15 tolled the running of the statute of limitations. 16 Consequently, Petitioner is not entitled to any statutory tolling, and his April 11, 17 2017 Petition was over eight months delinquent. 18 19 5. Equitable Tolling 20 "Equitable tolling of the one-year limitations period in 28 U.S.C. § 2244 is 21 available in our circuit, but only when ‘extraordinary circumstances beyond a prisoner's 22 control make it impossible to file a petition on time' and ‘the extraordinary circumstances 23 were the cause of his untimeliness.'" Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 24 2003).

25 To receive equitable tolling, [t]he petitioner must establish two elements: (1) that he has been pursuing his rights diligently, and (2) 26

27 4 Even if deemed delivered to prison officials, and thus filed as of the date of Petitioner’s 1 pciertciutimonsetar ncems uwst erea dtdhiet iocnaaulsley ofs hhoiws untthimat elinthees s, eaxntdra othrdait nathrye 2 extraordinary circumstances ma[de] it impossible to file a petition on time. 3 Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009) (internal citations and quotations 4 omitted). “Indeed, ‘the threshold necessary to trigger equitable tolling [under AEDPA] 5 is very high, lest the exceptions swallow the rule.’ ” Miranda v. Castro,292 F.3d 1063, 6 1066 (9th Cir. 2002) (quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir.). 7 Even if extraordinary circumstances prevent a petitioner from filing for a time, 8 equitable tolling will not apply if he does not continue to diligently pursue filing 9 afterwards. “If the person seeking equitable tolling has not exercised reasonable 10 diligence in attempting to file after the extraordinary circumstances began, the link of 11 causation between the extraordinary circumstances and the failure to file is broken, and 12 the extraordinary circumstances therefore did not prevent timely filing.” Valverde v. 13 Stinson, 224 F.3d 129, 134 (2nd Cir. 2000). 14 Petitioner bears the burden of proof on the existence of cause for equitable tolling. 15 Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); Rasberry v. Garcia, 448 F.3d 1150, 16 1153 (9th Cir. 2006) (“Our precedent permits equitable tolling of the one-year statute of 17 limitations on habeas petitions, but the petitioner bears the burden of showing that 18 equitable tolling is appropriate.”). 19 Petitioner argues he is entitled to equitable tolling because he is pro se, untrained, 20 dependent upon ineffective jailhouse lawyers, and had limited access to legal research 21 materials as a result of his prison relocations. (Petition, Doc. 1 at 11; Reply, Doc. 19 at 22 14.) 23 “It is clear that pro se status, on its own, is not enough to warrant equitable 24 tolling.” Roy v. Lampert, 465 F.3d 964, 970 (9th Cir. 2006). A prisoner's “proceeding 25 pro se is not a ‘rare and exceptional’ circumstance because it is typical of those bringing 26 a § 2254 claim.” Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000). See also 27 1 legal sophistication is not, by itself, an extraordinary circumstance warranting equitable 2 tolling”). 3 This circuit has found that a lack of access to legal resources may be an 4 extraordinary circumstance warranting equitable tolling. See, e.g., Whalem/Hunt v. 5 Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (en banc) (finding that unavailability of a 6 copy of the habeas statute of limitations in a prison law library could be grounds for 7 equitable tolling). However, in cases where courts have found that an extraordinary 8 circumstance might exist, the petitioner always pointed to specific materials to which he 9 did not have access. See, e.g., Roy v. Lampert, 465 F.3d 964, 974 (9th Cir. 2006) (finding 10 that lack of access to AEDPA materials and Oregon law books may be an extraordinary 11 circumstance); Mendoza v. Carey, 449 F.3d 1065 (9th Cir. 2006) (finding that lack of 12 access to Spanish language legal materials or assistance could entitle habeas petitioner to 13 equitable tolling). 14 Here, however, Petitioner points to no specific materials to which he lacked 15 access. In particular, he fails to point to any lack of materials necessary to the filing of a 16 federal habeas petition, or a lack of access to the federal habeas statute of limitations. 17 Moreover, Petitioner managed (albeit after his one year expired) to file a series of 18 state petitions raising various claims. He proffers no rationale for why he was able to 19 file those petitions, but not his federal petition. 20 Petitioner might point to his obligation to exhaust state remedies. However, the 21 Supreme Court has observed that a habeas petitioner can file a protective federal petition 22 and then seek to continue to exhaust his state remedies. In Pace v. DiGuglielmo, 544 23 U.S. 408 (2005), the Supreme Court analyzed the potential catch-22 between the habeas 24 limitations period and the exhaustion requirement, where a state petitioner has filed a 25 state post-conviction relief proceeding which may ultimately be deemed untimely, thus 26 not properly filed, and resulting in the expiration of his habeas limitations period. “A 27 prisoner seeking state postconviction relief might avoid this predicament, however, by 1 the federal habeas proceedings until state remedies are exhausted.” Id. at 416. 2 Petitioner proffers no reason why this avenue was not available to him. 3 In sum, Petitioner fails to show that his ability to file a timely federal habeas 4 petition was the result of a lack of access to legal resources. 5 6. Actual Innocence 6 To avoid a miscarriage of justice, the habeas statute of limitations in 28 U.S.C. § 7 2244(d)(1) does not preclude “a court from entertaining an untimely first federal habeas 8 petition raising a convincing claim of actual innocence.” McQuiggin v. Perkins, 133 9 S.Ct. 1924, 1935 (2013). To invoke this exception to the statute of limitations, a 10 petitioner “’must show that it is more likely than not that no reasonable juror would have 11 convicted him in the light of the new evidence.’” Id. at 1935 (quoting Schlup v. Delo, 12 513 U.S. 298, 327 (1995)). This exception, referred to as the “Schlup gateway,” applies 13 “only when a petition presents ‘evidence of innocence so strong that a court cannot have 14 confidence in the outcome of the trial unless the court is also satisfied that the trial was 15 free of nonharmless constitutional error.’ ” Id. at 1936 (quoting Schlup, 513 U.S. at 16 316). 17 Petitioner makes no such claim of actual innocence in this proceeding as a basis to 18 avoid the statute of limitations. 19 Petitioner does generally assert that he was not guilty. But those claims are 20 supported only by Petitioner’s own protestations of innocence. To establish a claim of 21 actual innocence, a Petitioner must support his claim with “new reliable evidence— 22 whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical 23 physical evidence.” Schlup, 513 U.S. at 324. Petitioner’s own, self-serving, post-trial 24 protestations of innocence are not the type of reliable evidence which create a likelihood 25 that no reasonable juror would have convicted him. 26 / / 27 1 Petitioner’s one year habeas limitations period commenced running on July 25, 2 2015 and expired on July 24, 2016, making his April 11, 2017 Petition over eight months 3 delinquent. Petitioner has shown no basis for statutory tolling or equitable tolling, nor 4 actual innocence to avoid the effects of his delay. Consequently, the Petition must be 5 dismissed with prejudice as untimely. 6

7 B. EXHAUSTION, PROCEDURAL DEFAULT AND PROCEDURAL BAR 8 Respondents also argue that Petitioner’s state remedies on his claims are either 9 procedurally defaulted (or were procedurally barred on an independent and adequate 10 state ground0, and thus are barred from federal habeas review. 11

12 1. Exhaustion Requirement 13 Generally, a federal court has authority to review a state prisoner’s claims only if 14 available state remedies have been exhausted. Duckworth v. Serrano, 454 U.S. 1, 3 15 (1981) (per curiam). The exhaustion doctrine, first developed in case law, has been 16 codified at 28 U.S.C. § 2254(b) and (c). When seeking habeas relief, the burden is on 17 the petitioner to show that he has properly exhausted each claim. Cartwright v. Cupp, 18 650 F.2d 1103, 1104 (9th Cir. 1981)(per curiam), cert. denied, 455 U.S. 1023 (1982). 19

20 a. Exhaustion by Fair Presentation 21 Ordinarily, to exhaust his state remedies, the petitioner must have fairly presented 22 his federal claims to the state courts. “A petitioner fairly and fully presents a claim to the 23 state court for purposes of satisfying the exhaustion requirement if he presents the claim: 24 (1) to the proper forum, (2) through the proper vehicle, and (3) by providing the proper 25 factual and legal basis for the claim.” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th 26 Cir. 2005). 27 Proper Forum - “In cases not carrying a life sentence or the death penalty, 1 ‘claims of Arizona state prisoners are exhausted for purposes of federal habeas once the 2 Arizona Court of Appeals has ruled on them.’” Castillo v. McFadden, 399 F.3d 993, 998 3 (9th Cir. 2005)(quoting Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999)). 4 Proper Vehicle - Ordinarily, “to exhaust one's state court remedies in Arizona, a 5 petitioner must first raise the claim in a direct appeal or collaterally attack his conviction 6 in a petition for post-conviction relief pursuant to Rule 32.” Roettgen v. Copeland, 33 7 F.3d 36, 38 (9th Cir. 1994). Only one of these avenues of relief must be exhausted 8 before bringing a habeas petition in federal court. This is true even where alternative 9 avenues of reviewing constitutional issues are still available in state court. Brown v. 10 Easter, 68 F.3d 1209, 1211 (9th Cir. 1995); Turner v. Compoy, 827 F.2d 526, 528 (9th 11 Cir. 1987), cert. denied, 489 U.S. 1059 (1989). 12 Factual Basis – A petitioner must have fairly presented the operative facts of his 13 federal claim to the state courts as part of the same claim. A petitioner may not broaden 14 the scope of a constitutional claim in the federal courts by asserting additional operative 15 facts that have not yet been fairly presented to the state courts. Expanded claims not 16 presented in the highest state court are not considered in a federal habeas petition. 17 Brown v. Easter, 68 F.3d 1209 (9th Cir. 1995); see also, Pappageorge v. Sumner, 688 18 F.2d 1294 (9th Cir. 1982), cert. denied, 459 U.S. 1219 (1983). And, while new factual 19 allegations do not ordinarily render a claim unexhausted, a petitioner may not 20 "fundamentally alter the legal claim already considered by the state courts." Vasquez v. 21 Hillery, 474 U.S. 254, 260 (1986). 22 Legal Basis - Failure to alert the state court to the constitutional nature of the 23 claim will amount to failure to exhaust state remedies. Duncan v. Henry, 513 U.S. 364, 24 366 (1995). While the petitioner need not recite “book and verse on the federal 25 constitution,” Picard v. Connor, 404 U.S. 270, 277-78 (1971) (quoting Daugherty v. 26 Gladden, 257 F.2d 750, 758 (9th Cir. 1958)), it is not enough that all the facts necessary 27 to support the federal claim were before the state courts or that a “somewhat similar state 1 petitioner must make the federal basis of the claim explicit either by specifying particular 2 provisions of the federal Constitution or statutes, or by citing to federal case law,” 3 Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005), or by “a citation to a state 4 case analyzing [the] federal constitutional issue." Peterson v. Lampert, 319 F.3d 1153, 5 1158 (9th Cir. 2003). But a drive-by-citation of a state case applying federal and state 6 law is not sufficient.

7 For a federal issue to be presented by the citation of a state decision dealing with both state and federal issues relevant to the claim, the 8 citation must be accompanied by some clear indication that the case involves federal issues. Where, as here, the citation to the state case 9 has no signal in the text of the brief that the petitioner raises federal claims or relies on state law cases that resolve federal issues, the 10 federal claim is not fairly presented. 11 Casey v. Moore, 386 F.3d 896, 912 n. 13 (9th Cir. 2004). 12 Proper Mode - "[O]rdinarily a state prisoner does not 'fairly present' a claim to a 13 state court if that court must read beyond a petition or a brief (or a similar document) that 14 does not alert it to the presence of a federal claim in order to find material, such as a 15 lower court opinion in the case, that does so." Baldwin v. Reese, 541 U.S. 27, 32 (2004). 16 The Arizona habeas petitioner "must have presented his federal, constitutional issue 17 before the Arizona Court of Appeals within the four corners of his appellate briefing." 18 Castillo v. McFadden, 399 F.3d 993, 1000 (9th Cir. 2005). But see Insyxiengmay v. 19 Morgan, 403 F.3d 657, 668-669 (9th Cir. 2005) (arguments set out in appendix attached 20 to petition and incorporated by reference were fairly presented). 21 22 b. Exhaustion by Actual Consideration 23 Although fair presentation is the normal mode of establishing exhaustion of state 24 remedies, it is not the only method. Rather, a petitioner’s state remedies are exhausted 25 where the state courts have reached and passed on the merits of a federal claim, 26 regardless whether the petitioner had fairly presented the claim to the state court. “It is 27 reasonable to infer an exception [to the fair presentation requirement] where the State 1 Greene v. Lambert, 288 F.3d 1081, 1086 (9th Cir. 2002) (“exhaustion does not require 2 repeated assertions if a federal claim is actually considered at least once on the merits by 3 the highest state court”); Sandstrom v. Butterworth, 738 F.2d 1200, 1206 (11th Cir.1984) 4 ("[t]here is no better evidence of exhaustion than a state court's actual consideration of 5 the relevant constitutional issue"); and Walton v. Caspari, 916 F.2d 1352, 1356-57 (8th 6 Cir.1990) (state court's sua sponte consideration of an issue satisfies exhaustion). 7 On the other hand, actual consideration of the claim is not required. “All 8 exhaustion requires is that the state courts have the opportunity to remedy an error, not 9 that they actually took advantage of the opportunity.” Scott v. Schriro, 567 F.3d 573, 10 583 (9th Cir. 2009). 11 12 c. Available Remedies 13 In his Reply, Petitioner argues he should be permitted to proceed because he has 14 repeatedly tried to present his claims to the state courts, but has been repeatedly 15 frustrated in doing so, citing Lee v. Stickman, 357 F.3d 338 (3d Cir.), subsequent 16 mandamus proceeding sub nom. In re Lee, 112 Fed. Appx. 866 (3d Cir. 2004). (Reply, 17 Doc. 19 at 14.) Lee opines: “Federal courts need not defer to the state judicial process 18 when there is no appropriate remedy at the state level or when the state process would 19 frustrate the use of an available remedy.” Id. at 341. 20 It is true that it is only “available” and “effective” remedies that must be 21 exhausted. 28 U.S.C. § 2254(b)(1)(B)(i) and (ii). So, as an alternative to presenting his 22 claims to the state courts, a petitioner can satisfy the exhaustion requirement by 23 demonstrating that no effective state remedies remained available at the time the federal 24 habeas petition was filed. Engle v. Isaac, 456 U.S. 107, 125 (n. 28)(1982); White v. 25 Lewis, 874 F.2d 599, 602 (9th Cir. 1989). If, however, the procedural bar is of the 26 petitioner’s own making, then he may be precluded from seeking habeas relief.

27 If state remedies are not available because the petitioner failed to 1 Buffalo v. Sunn, 854 F.2d 1158, 1163 (9th Cir. 1988). 2 Here, Petitioner fails to show that the failure of the state courts to reach the merits 3 of his claims was caused by anything other than his own failures to comply with the 4 applicable state procedures. The fact that Petitioner may have been persistent, diligent, 5 even dogged, in his failed attempts to obtain review, does not overcome his failures to do 6 so in accordance with independent and adequate state procedural bars. 7

8 2. Procedural Default 9 Ordinarily, unexhausted claims are dismissed without prejudice. Johnson v. 10 Lewis, 929 F.2d 460, 463 (9th Cir. 1991). However, where a petitioner has failed to 11 properly exhaust his available administrative or judicial remedies, and those remedies are 12 now no longer available because of some procedural bar, the petitioner has "procedurally 13 defaulted" and is generally barred from seeking habeas relief. Dismissal with prejudice 14 of a procedurally defaulted habeas claim is generally proper absent a “miscarriage of 15 justice” which would excuse the default. Reed v. Ross, 468 U.S. 1, 11 (1984). 16 Respondents argue that Petitioner may no longer present his unexhausted claims 17 to the state courts. Respondents rely upon Arizona’s preclusion bar, set out in Ariz. R. 18 Crim. Proc. 32.2(a) and time limit bar, set out in Ariz. R. Crim. P. 32.4. (Answer, Doc. 19 13 at 24.) 20 Remedies by Direct Appeal - Under Arizona Rule of Criminal Procedure 31.3, 21 the time for filing a direct appeal expires twenty days after entry of the judgment and 22 sentence. Moreover, no provision is made for a successive direct appeal. Accordingly, 23 direct appeal is no longer available for review of Petitioner’s unexhausted claims. 24 Remedies in Previous PCR Proceedings – Under Arizona Rule of Criminal 25 Procedure 32.9(c)(1)(A), a petition for review in a PCR proceeding must be filed “[n]o 26 later than 30 days after the entry of the trial court's final decision.” All of Petitioner’s 27 1 petition for review in those proceedings is no longer available for review of Petitioner’s 2 unexhausted claims. 3 Remedies by Post-Conviction Relief – Under Arizona’s preclusion, waiver and 4 timeliness bars, Petitioner can no longer seek review by a subsequent PCR Petition. 5 Preclusion Bar – Under the rules applicable to Arizona’s post-conviction process, 6 a claim may not be brought in a petition for post-conviction relief if the claim was 7 “[f]inally adjudicated on the merits on appeal or in any previous collateral proceeding.” 8 Ariz. R. Crim. P. 32.2(a)(2). 9 Waiver Bar - Under the rules applicable to Arizona's post-conviction process, a 10 claim may not ordinarily be brought in a petition for post-conviction relief that "has been 11 waived at trial, on appeal, or in any previous collateral proceeding." Ariz.R.Crim.P. 12 32.2(a)(3). Under this rule, some claims may be deemed waived if the State simply 13 shows "that the defendant did not raise the error at trial, on appeal, or in a previous 14 collateral proceeding." Stewart v. Smith, 202 Ariz. 446, 449, 46 P.3d 1067, 1070 (2002) 15 (quoting Ariz.R.Crim.P. 32.2, Comments). But see State v. Diaz, 236 Ariz. 361, 340 P.3d 16 1069 (2014) (failure of PCR counsel, without fault by petitioner, to file timely petition in 17 prior PCR proceedings did not amount to waiver of claims of ineffective assistance of 18 trial counsel). 19 For others of "sufficient constitutional magnitude," the State "must show that the 20 defendant personally, ''knowingly, voluntarily and intelligently' [did] not raise' the 21 ground or denial of a right." Id. That requirement is limited to those constitutional 22 rights “that can only be waived by a defendant personally.” State v. Swoopes, 216 Ariz. 23 390, 399, 166 P.3d 945, 954 (App.Div. 2, 2007). Indeed, in coming to its prescription in 24 Stewart v. Smith, the Arizona Supreme Court identified: (1) waiver of the right to 25 counsel, (2) waiver of the right to a jury trial, and (3) waiver of the right to a twelve- 26 person jury under the Arizona Constitution, as among those rights which require a 27 personal waiver. 202 Ariz. at 450, 46 P.3d at 1071. Claims based upon ineffective 1 affected by counsel’s ineffective performance. Id. 2 Here, none of Petitioner’s claims are of the sort requiring a personal waiver, and 3 Petitioner’s claims of ineffective assistance similarly have at their core the kinds of 4 claims not within the types identified as requiring a personal waiver. 5 Timeliness Bar - Even if not barred by preclusion, Petitioner would now be barred 6 from raising his claims by Arizona’s time bars. Ariz.R.Crim.P. 32.4 requires that 7 petitions for post-conviction relief (other than those which are “of-right”) be filed 8 “within ninety days after the entry of judgment and sentence or within thirty days after 9 the issuance of the order and mandate in the direct appeal, whichever is the later.” See 10 State v. Pruett, 185 Ariz. 128, 912 P.2d 1357 (App. 1995) (applying 32.4 to successive 11 petition, and noting that first petition of pleading defendant deemed direct appeal for 12 purposes of the rule). That time has long since passed. 13 Exceptions - Rules 32.2 and 32.4(a) do not bar dilatory claims if they fall within 14 the category of claims specified in Ariz.R.Crim.P. 32.1(d) through (h). See Ariz. R. 15 Crim. P. 32.2(b) (exceptions to preclusion bar); Ariz. R. Crim. P. 32.4(a) (exceptions to 16 timeliness bar). Petitioner has not asserted that any of these exceptions are applicable to 17 his claims. Nor does it appears that such exceptions would apply. The rule defines the 18 excepted claims as follows:

19 d. The person is being held in custody after the sentence imposed has expired; 20 e. Newly discovered material facts probably exist and such facts probably would have changed the verdict or sentence. Newly 21 discovered material facts exist if: (1) The newly discovered material facts were 22 discovered after the trial. (2) The defendant exercised due diligence in securing 23 the newly discovered material facts. (3) The newly discovered material facts are not 24 merely cumulative or used solely for impeachment, unless the impeachment evidence substantially undermines testimony which 25 was of critical significance at trial such that the evidence probably would have changed the verdict or sentence. 26 f. The defendant's failure to file a notice of post-conviction relief of-right or notice of appeal within the prescribed time was 27 without fault on the defendant's part; or 1 evidenche. tThahte thdee ffeancdtsa nutn ddeermlyoinngs ttrhaete sc labimy cwleoaurl d abned sucfofnicviienncti ntgo 2 establish that no reasonable fact-finder would have found defendant guilty of the underlying offense beyond a reasonable doubt, or that 3 the court would not have imposed the death penalty. 4 Ariz.R.Crim.P. 32.1. 5 Paragraph 32.1 (d) (expired sentence) generally has no application to an Arizona 6 prisoner who is simply attacking the validity of his conviction or sentence. Where a 7 claim is based on "newly discovered evidence" that has previously been presented to the 8 state courts, the evidence is no longer "newly discovered" and paragraph (e) has no 9 application. Here, Petitioner’s claims all depend on facts reflected in the state court trial 10 record, and which thus would have been known to Petitioner since trial. Paragraph (f) 11 has no application where the petitioner filed a timely notice of post-conviction 12 relief. Paragraph (g) has no application because Petitioner has not asserted a change in 13 the law since his last PCR proceeding. Finally, paragraph (h), concerning claims of 14 actual innocence, has no application to the procedural claims Petitioner asserts in this 15 proceeding. 16 Therefore, none of the exceptions apply, and Arizona’s time and waiver bars 17 would prevent Petitioner from returning to state court. Thus, Petitioner’s claims that 18 were not fairly presented are all now procedurally defaulted. 19 20 3. Procedural Bar on Independent and Adequate State Grounds 21 Related to the concept of procedural default is the principle of barring claims 22 actually disposed of by the state courts on state grounds. “[A]bsent showings of ‘cause’ 23 and ‘prejudice,’ federal habeas relief will be unavailable when (1) ‘a state court [has] 24 declined to address a prisoner's federal claims because the prisoner had failed to meet a 25 state procedural requirement,’ and (2) ‘the state judgment rests on independent and 26 adequate state procedural grounds.’ ” Walker v. Martin, 562 U.S. 307, 316 (2011). 27 In Bennett v. Mueller, 322 F.3d 573 (9th Cir.2003), the Ninth Circuit addressed 1 Oanndc ea dtehqeu sattaet es thaates pardoecqeudauteralyl gprloeudn tdh ea se xains taefnfcirem oaft iavne idnedfeepnesne,d ethnet 2 burden to place that defense in issue shifts to the petitioner. The petitioner may satisfy this burden by asserting specific factual 3 allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent 4 application of the rule. Once having done so, however, the ultimate burden is the state's. 5 Id. at 584-585. 6 Waiver Bar - Petitioner fails to proffer anything to suggest that Rule 32.2(a) is 7 not an independent and adequate state ground, sufficient to bar federal habeas review of 8 claims a defendant could have but did not raise on direct appeal. The federal courts have 9 routinely held that it is. “Arizona's waiver rules are independent and adequate bases for 10 denying relief.” Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir.) cert. denied, 135 S. Ct. 710 11 (2014). See also Stewart v. Smith, 536 U.S. 856, 861 (2002) (Arizona’s waiver rule is 12 independent of federal law); and Ortiz v. Stewart, 149 F.3d 923, 932 (9th Cir. 1998) 13 (adequate because consistently and regularly applied). See also Martinez v. Ryan, 566 14 U.S. 1, 10 (2012) (“There is no dispute that Arizona's procedural bar on successive 15 petitions is an independent and adequate state ground.”). 16 Timeliness Bar – Similarly, Petitioner fails to proffer anything to suggest that 17 Rule 32.4 is not an independent and adequate state ground, sufficient to bar federal 18 habeas review of claims a defendant could have but did not raise on direct appeal. The 19 district courts in Arizona have held that it is. See e.g. Morgal v. Ryan, 2013 WL 655122, 20 at *16 (D. Ariz. Jan. 18, 2013) report and recommendation adopted, 2013 WL 645960 21 (D. Ariz. Feb. 21, 2013). 22 Review Time Bars – Finally, Petitioner fails to proffer anything to suggest that 23 Arizona Rules of Criminal Procedure 31.3 (time limit for direct appeal) and 32.9(c) (time 24 limit for petition for review) are not independent and adequate state grounds, sufficient 25 to bar federal habeas review of claims presented in an untimely direct appeal or petition 26 for review. 27 1 4. Application to Petitioner’s Claims 2 Petitioner has never fairly presented any claims to the Arizona Court of Appeals. 3 His claims are thus either procedurally defaulted, or procedurally barred. This Court 4 need not determine which claims fit in which group to conclude that Petitioner’s claims 5 may not be addressed by this Court on the merits. 6 Procedurally Barred Claims - Petitioner’s two forays to the Arizona Court of 7 Appeals have each been dismissed as untimely. (See Exhibit NN, Order 3/22/17 8 (dismissing petition for review as untimely); Exhibit LL, Order 3/8/17 (dismissing direct 9 appeal as untimely).) Thus, even if Petitioner had presented any of his claims in those 10 proceedings, they were procedurally barred under Ariz. R. Crim. Proc. 31.3 (direct 11 appeal) or 32.9 (post-conviction review). 12 In addition, to the extent that Petitioner’s current claims were not presented to the 13 Arizona Court of Appeals in his two forays there, but were presented in his second or 14 third PCR petitions, they were procedurally barred in the PCR court on the basis that 15 they were untimely, under Ariz. R. Crim. Proc. 32.4. (See Exhibit HH, Order 1/4/17.) 16 Procedurally Defaulted Claims - To the extent that Petitioner’s habeas claims 17 were presented in his first or fourth PCR petitions, his failure to timely seek review 18 renders his state remedies procedurally defaulted by failure to timely seek review, 19 pursuant to Arizona Rule of Criminal Procedure 32.9. 20 To the extent that Petitioner has never raised his habeas claims to the state courts, 21 they are now procedurally defaulted, for the reasons set forth in Section III(B)(2). 22 23 5. Cause and Prejudice 24 If the habeas petitioner has procedurally defaulted on a claim, or it has been 25 procedurally barred on independent and adequate state grounds, he may not obtain 26 federal habeas review of that claim absent a showing of “cause and prejudice” sufficient 27 to excuse the default. Reed v. Ross, 468 U.S. 1, 11 (1984). 1 1123 (1991). "Because of the wide variety of contexts in which a procedural default can 2 occur, the Supreme Court 'has not given the term "cause" precise content.'" Harmon v. 3 Barton, 894 F.2d 1268, 1274 (11th Cir. 1990) (quoting Reed, 468 U.S. at 13), cert. 4 denied, 498 U.S. 832 (1990). The Supreme Court has suggested, however, that cause 5 should ordinarily turn on some objective factor external to petitioner, for instance:

6 ... a showing that the factual or legal basis for a claim was not reasonably available to counsel, or that "some interference by 7 officials", made compliance impracticable, would constitute cause under this standard. 8 Murray v. Carrier, 477 U.S. 478, 488 (1986) (citations omitted). 9 Petitioner argues that this Court should find cause to excuse his procedural 10 defaults based on his determined and diligent attempts to obtain review by the state 11 courts, in the face of his pro se, untrained status with limited legal resources. (Reply, 12 Doc. 19 at 15-16). 13 Diligence – While diligence is relevant to a finding that some external 14 circumstance was the but-for cause of a petitioner’s failure to properly exhaust his state 15 remedies, diligence itself is not sufficient to show cause. Diligence is not external to a 16 petitioner, but internal. 17 Pro Se Status - The “cause and prejudice” standard is equally applicable to pro se 18 litigants, Harmon v. Barton, 894 F.2d 1268, 1274 (11th Cir. 1990); Hughes v. Idaho 19 State Board of Corrections, 800 F.2d 905, 908 (9th Cir. 1986), whether literate and 20 assisted by “jailhouse lawyers”, Tacho, 862 F.2d at 1381; illiterate and unaided, Hughes, 21 800 F.2d at 909, or non-English speaking, Vasquez v. Lockhart, 867 F.2d 1056, 1058 22 (9th Cir. 1988), cert. denied, 490 U.S. 1100 (1989). 23 Ineffective Jailhouse Lawyers - Petitioner points to failings by his jailhouse 24 lawyers. Ineffective assistance of counsel may constitute cause for failing to properly 25 exhaust claims in state courts and excuse procedural default. Ortiz v. Stewart, 149 F.3d 26 923, 932, (9th Cir. 1998). However, to meet the “cause” requirement, the ineffective 27 1 Accordingly, where no constitutional right to an attorney exists, ineffective assistance 2 will not amount to cause excusing the state procedural default. Id. Petitioner proffers 3 nothing to suggest that he had a constitutional right to counsel in any of the proceedings 4 where he was assisted by another inmate. Nor does he suggest that such a right would 5 extend to a right to effective assistance from a fellow inmate. 6 Limited Legal Resources – Petitioner argues that he had “improper facts by 7 reason of a lack of legal resources.” (Reply, Doc. 19 at 18.) Because Petitioner fails to 8 point to a fact (as opposed to a legal argument) that was unavailable to him, the 9 undersigned understands this argument to be a claim that Petitioner could not properly 10 exhaust his state remedies because he did not have adequate legal research available to 11 him. 12 A pro se petitioner may be able to establish cause if he can establish a lack of 13 access to the law, as opposed to a lack of knowledge of the law. See e.g. Dulin v. Cook, 14 957 F.2d 758 (10th Cir. 1992) (remanding for a determination of cause where a pro se 15 petitioner’s incarceration in Nevada precluded access to Utah legal materials required to 16 challenge a Utah conviction). Cf. Whalem/Hunt v. Early, 233 F.3d 1146 (9th Cir. 2000) 17 (holding lack of library materials may establish an “impediment” which would toll the 18 statute of limitations applicable to habeas petitions). The petitioner must establish, 19 however, that the lack of access resulted in an inability to assert his claims. See e.g. 20 Thomas v. Lewis, 945 F.2d 1119 (9th Cir. 1991) (finding no “cause” where despite lack 21 of resources generally, pro se prisoner had not shown personal deprivation, and had 22 managed to file other adequate petitions.) 23 Petitioner fails to suggest what legal materials were not available to him, but 24 necessary to his presentation of his claims. To the extent that Petitioner simply took too 25 long to make use of the research materials available to him, his claim is particularly 26 suspect. Here: (1) Petitioner was represented by counsel at the time his claims should 27 have initially been brought, in his first, of-right PCR proceeding; (2) Petitioner was 1 he had to do was reiterate his claims, and the purported error by the PCR Court in his 2 Petition for Review; (3) Petitioner presented at least some of his claims, but simply did 3 so in an untimely or improper fashion; and (4) to the extent that Petitioner had previously 4 presented his claims, they cannot be claimed to have been later made unavailable. 5 Therefore, Petitioner has failed to show that the necessary research/arguments 6 were unavailable to him to present those claims. 7 Summary re Cause and Prejudice – Based upon the foregoing, the undersigned 8 concludes that Petitioner has failed to establish cause to excuse his procedural defaults. 9 Both "cause" and "prejudice" must be shown to excuse a procedural default, 10 although a court need not examine the existence of prejudice if the petitioner fails to 11 establish cause. Engle v. Isaac, 456 U.S. 107, 134 n. 43 (1982); Thomas v. Lewis, 945 12 F.2d 1119, 1123 n. 10 (9th Cir.1991). Petitioner has filed to establish cause for his 13 procedural default. Accordingly, this Court need not examine the merits of Petitioner's 14 claims or the purported "prejudice" to find an absence of cause and prejudice. 15 16 6. Actual Innocence 17 The standard for “cause and prejudice” is one of discretion intended to be flexible 18 and yielding to exceptional circumstances, to avoid a “miscarriage of justice.” Hughes v. 19 Idaho State Board of Corrections, 800 F.2d 905, 909 (9th Cir. 1986). Accordingly, 20 failure to establish cause may be excused “in an extraordinary case, where a 21 constitutional violation has probably resulted in the conviction of one who is actually 22 innocent.” Murray v. Carrier, 477 U.S. 478, 496 (1986) (emphasis added). Although 23 not explicitly limited to actual innocence claims, the Supreme Court has not yet 24 recognized a "miscarriage of justice" exception to exhaustion outside of actual 25 innocence. See Hertz & Lieberman, Federal Habeas Corpus Pract. & Proc. §26.4 at 26 1229, n. 6 (4th ed. 2002 Cumm. Supp.). The Ninth Circuit has expressly limited it to 27 claims of actual innocence. Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir. 2008). 1 is more likely than not that no reasonable juror would have convicted him in the light of 2 the new evidence" presented in his habeas petition. Schlup v. Delo, 513 U.S. 298, 327 3 (1995). A showing that a reasonable doubt exists in the light of the new evidence is not 4 sufficient. Rather, the petitioner must show that no reasonable juror would have found 5 the defendant guilty. Id. at 329. This standard is referred to as the “Schlup 6 gateway.” Gandarela v. Johnson, 286 F.3d 1080, 1086 (9th Cir. 2002). 7 Moreover, to pass through the Schlup gateway, not just any evidence of innocence 8 will do; the petitioner must present “new reliable evidence—whether it be exculpatory 9 scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that 10 was not presented at trial.” Schlup, 513 U.S. at 324. 11 Petitioner does generally assert that he was not guilty. But those claims are 12 supported only by Petitioner’s own protestations of innocence. To establish a claim of 13 actual innocence, a Petitioner must support his claim with “new reliable evidence.” 14 Schlup, 513 U.S. at 324. Petitioner’s own, self-serving, post-trial protestations of 15 innocence are not the type of reliable evidence which create a likelihood that no 16 reasonable juror would have convicted him. 17 Accordingly his procedurally defaulted and procedurally barred claims must be 18 dismissed with prejudice. 19 C. OTHER DEFENSES 20 Because the undersigned concludes that Petitioner’s Petition is plainly barred by 21 the statute of limitations, and either procedurally defaulted or procedurally barred, 22 Respondents other defenses are not reached. Thus the undersigned does not resolve 23 whether Grounds Two and Three can be liberally construed to assert a cognizable 24 federal ground for relief, nor whether Petitioner’s plea waived his claim in Ground One. 25

26 IV. CERTIFICATE OF APPEALABILITY 27 1 that in habeas cases the “district court must issue or deny a certificate of appealability 2 when it enters a final order adverse to the applicant.” Such certificates are required in 3 cases concerning detention arising “out of process issued by a State court”, or in a 4 proceeding under 28 U.S.C. § 2255 attacking a federal criminal judgment or sentence. 28 5 U.S.C. § 2253(c)(1). 6 Here, the Petition is brought pursuant to 28 U.S.C. § 2254, and challenges 7 detention pursuant to a State court judgment. The recommendations if accepted will 8 result in Petitioner’s Petition being resolved adversely to Petitioner. Accordingly, a 9 decision on a certificate of appealability is required. 10 Applicable Standards - The standard for issuing a certificate of appealability 11 (“COA”) is whether the applicant has “made a substantial showing of the denial of a 12 constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected the 13 constitutional claims on the merits, the showing required to satisfy § 2253(c) is 14 straightforward: The petitioner must demonstrate that reasonable jurists would find the 15 district court’s assessment of the constitutional claims debatable or wrong.” Slack v. 16 McDaniel, 529 U.S. 473, 484 (2000). “When the district court denies a habeas petition 17 on procedural grounds without reaching the prisoner’s underlying constitutional claim, a 18 COA should issue when the prisoner shows, at least, that jurists of reason would find it 19 debatable whether the petition states a valid claim of the denial of a constitutional right 20 and that jurists of reason would find it debatable whether the district court was correct in 21 its procedural ruling.” Id. 22 Standard Not Met - Assuming the recommendations herein are followed in the 23 district court’s judgment, that decision will be on procedural grounds. Under the 24 reasoning set forth herein, jurists of reason would not find it debatable whether the 25 district court was correct in its procedural ruling. 26 Accordingly, to the extent that the Court adopts this Report & Recommendation 27 as to the Petition, a certificate of appealability should be denied. V. RECOMMENDATION IT IS THEREFORE RECOMMENDED that the Petitioner's Petition for Writ 3 of Habeas Corpus, filed April 17, 2017 (Doc. 1) be DISMISSED WITH PREJUDICE. 4 IT IS FURTHER RECOMMENDED that, to the extent the foregoing findings 5 and recommendations are adopted in the District Court’s order, a Certificate of 6 Appealability be DENIED. VI. EFFECT OF RECOMMENDATION

9 This recommendation is not an order that is immediately appealable to the Ninth

10 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

3 shall have fourteen (14) days from the date of service of a copy of this recommendation

14 within which to file specific written objections with the Court. See also Rule 8(b), Rules

15 Governing Section 2254 Proceedings. Thereafter, the parties have fourteen (14) days 6 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

ig party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 19 328 F.3d 1114, 1121 (9 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).

33 In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that

54 “Tujnless otherwise permitted by the Court, an objection to a Report and

35 Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.” 26 Dated: February 22, 2018 _ AL a 27 |] 17-1288 18 02 14 on HC does United States Magistrate Judge 28