Gray 282846 v. Shinn

Opinion

1 WO 2 3 4 5

9 Richard Louis Gray, No. CV-17-00963-PHX-GMS

10 Petitioner, ORDER

11 v.

12 Charles Ryan, et al.,

13 Respondents. 14 15 Pending before the Court is a Report and Recommendation (“R&R”) (Doc. 76) 16 issued by Magistrate Judge Eileen S. Willett recommending that Petitioner Richard Gray’s 17 (“Petitioner”) Third Amended Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus 18 (“Third Amended Petition”) (Doc. 52) be dismissed with prejudice. For the following 19 reasons, the Court adopts the R&R and dismisses the Third Amended Petition with 20 prejudice.1 22 The background of this case was thoroughly summarized in the R&R and is 23 incorporated here.

24 In April 2013, Petitioner entered into a plea agreement in which Petitioner agreed to plead guilty to the following Arizona state crimes: (i) 25 attempted sexual conduct with a minor, a class 3 felony and dangerous crime against children; (ii) molestation of a child, a class 2 felony and dangerous 26 crime against children, and (iii) public sexual indecency, a class 5 designated felony. (Doc. 53-1 at 6-9.) The trial court accepted Petitioner’s guilty pleas 27 1 Petitioner also filed a Motion for Inquiry of the General Docket (Doc. 78) on October 31, 28 2019. Petitioner requests the status of his Third Amended Petition. Upon the issuance of this Order, Petitioner’s Third Amended Petition is denied and dismissed with prejudice. 1 and sentenced Petitioner to a total of ten years in prison, followed by lifetime probation. (Id. at 12-14; Doc. 53-2 at 2-7.) In July 2013, Petitioner filed an 2 of-right Notice of Post-Conviction Relief (“PCR”). (Doc. 53-2 at 28-29.) The trial court appointed counsel, who could not find any claims for relief. (Id. at 3 31-32.) Petitioner thereafter filed a pro se PCR Petition. (Doc. 53-3 at 2-142.) The trial court found that Petitioner failed to raise a colorable claim and 4 dismissed the proceeding. (Doc. 53-4 at 14-16.) Petitioner sought further review by the Arizona Court of Appeals, which denied relief in January 2017. 5 (Id. at 41-43.)

6 In 2017, Petitioner initiated a second PCR proceeding. (Id. at 45-89.) The trial court dismissed the proceeding as untimely. (Id. at 91-94.) The 7 Arizona Court of Appeals affirmed the dismissal. (Id. at 140-41.)

8 It is undisputed that Petitioner timely initiated this federal habeas proceeding in 2017. (Doc. 1.) On May 22, 2017, Petitioner filed a First 9 Amended Petition that raised four habeas grounds, which the Court required Respondents to answer. (Docs. 9, 10.) On September 26, 2017, the Court 10 granted Petitioner’s request to file a Second Amended Petition that raised a fifth ground for relief and incorporated by reference the four grounds raised 11 in Petitioner’s First Amended Petition. (Doc. 31.) In July 2018, before Respondents answered the Second Amended Petition, Petitioner sought 12 leave to file a Third Amended Petition. (Doc. 49.) The Court granted the request. (Doc. 51.) The Third Amended Petition presents three grounds for 13 habeas relief. In their Limited Answer (Doc. 53), Respondents address all the grounds that Petitioner raised in his First, Second, and Third Amended 14 Petitions. However, as Petitioner has acknowledged, only the three grounds presented in the Third Amended Petition are at issue. (Doc. 62 at 6) 15 (“Petitioner filed a Third Amended Petition and waived his First and Second Petition as moot . . . .”). 16 17 The Third Amended Petition asserts that (1) A.R.S. § 13-1407(E) unconstitutionally 18 shifts the burden of proving intent to the defendant; (2) A.R.S. § 13-1410 et seq is 19 unconstitutionally vague; and (3) trial counsel was ineffective for failing to discover the 20 unconstitutionality of the Arizona statutes. The R&R agreed with Respondents and 21 concluded that all claims raised in the Third Amended Petition are procedurally defaulted 22 without excuse. Accordingly, the Magistrate Judge recommended that the Court dismiss 23 the Third Amended Petition with prejudice. (Doc. 76 at 10.) The Magistrate Judge further 24 recommended that the Court deny a Certificate of Appealability and Petitioner’s request 25 for leave to proceed in forma pauperis. (Id.) Petitioner timely objects to the Magistrate 26 Judge’s failure to consider the constitutional question raised in the Third Amended Petition. 27 Petitioner asserts that the Magistrate Judge errored in not concluding that the constitutional 28 issue constitutes the “cause and prejudice” required to excuse a procedural default. 2 I. Standard of Review 3 A “district judge may refer dispositive pretrial motions, and petitions for writ of 4 habeas corpus, to a magistrate, who shall conduct appropriate proceedings and recommend 5 dispositions.” Thomas v. Arn, 474 U.S. 140, 141 (1985); see also 28 U.S.C. § 636(b)(1)(B); 6 Estate of Connors v. O'Connor, 6 F.3d 656, 658 (9th Cir. 1993). Any party “may serve and 7 file written objections” to the R&R. 28 U.S.C. § 636(b)(1). “A judge of the court shall 8 make a de novo determination of those portions of the report or specified findings or 9 recommendations to which objection is made.” Id. District courts, however, are not 10 required to conduct “any review at all . . . of any issue that is not the subject of an 11 objection.” Arn, 474 U.S. at 149. A district judge “may accept, reject, or modify, in whole 12 or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. 13 § 636(b)(1). 14 II. Analysis 15 A. Petitioner’s claims are procedurally defaulted. 16 A federal habeas court generally may not review a claim if the state court’s denial 17 of the claim rests on independent and adequate state law grounds. See, e.g., Zichko v. Idaho, 18 247 F.3d 1015, 1021 (9th Cir. 2001) (“The independent and adequate state ground doctrine 19 ‘applies to bar federal habeas when a state court declined to address a prisoner's federal 20 claims because the prisoner had failed to meet a state procedural requirement.’”) (quoting 21 Coleman v. Thompson, 501 U.S. 722, 729–30 (1991)). A state rule is “adequate” if it is 22 “clear, consistently applied, and well-established at the time of petitioner’s purported 23 default.” Zichko 247 F.3d at 1021 (quoting Petrocelli v. Angelone, 242 F.3d 867, 875 (9th 24 Cir. 2001)). A state rule is “independent” if it does not depend on a federal constitutional 25 ruling. See Ake v. Oklahoma, 470 U.S. 68, 75 (1985). 26 The claims asserted in the Third Amended Petition were dismissed by the Arizona 27 state trial court in Petitioner’s second PCR proceeding. (Doc. 53-4 at 45-63.) As an initial 28 matter, the state trial court found Petitioner’s second PCR proceeding to be untimely. (Doc. 1 53-4 at 92.) The court further explained that Petitioner’s ineffective assistance of counsel 2 claim was precluded by Arizona Rule of Criminal Procedure 32.2(a)(3) because the claim 3 could have been brought in Petitioner’s first PCR proceeding. (Doc. 53-4 at 92.) Similarly, 4 the court dismissed Petitioner’s remaining claims regarding the constitutionality of the 5 Arizona statutes because Petitioner failed to invoke any exception, particularly Rule 6 32.2(b), to preclusion. (Doc. 53-4 at 93–94.) 7 The Arizona procedural rules relied upon to dismiss Petitioner’s claims are adequate 8 and independent state law grounds. See Jones v. Ryan, 691 F.3d 1093, 1101 (9th Cir. 2012) 9 (“Arizona Rule of Criminal Procedure 32.2(a)(3) is independent of federal law and has 10 been regularly and consistently applied, so it is adequate to bar federal review of a claim.”); 11 Olmos v. Ryan, CV–11–344–PHX–GMS (BSB), 2012 WL 8466125, at *17 (D. Ariz. 12 Dec. 19, 2012) (acknowledging that Arizona Rule of Criminal Procedure 32.2(b) is an 13 “adequate and independent state procedural rule”). Because the state court denied 14 Petitioner’s habeas claims by invoking an adequate and independent state procedural rule, 15 Petitioner’s claims are procedurally defaulted. 16 B. Petitioner’s procedural defaults are not excused. 17 A federal habeas court may still review the merits of a habeas petitioner’s 18 procedurally defaulted claim if the petitioner shows (1) cause for the default and actual 19 prejudice as a result of the alleged violation of federal law; or (2) a fundamental miscarriage 20 of justice. Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002). To demonstrate “cause” a 21 petitioner must show that some objective factor external to the petitioner impeded his 22 efforts to comply with the state’s procedural rules. See Murray v. Carrier, 477 U.S. 478, 23 488 (1986). Prejudice requires a showing that the alleged constitutional violation “worked 24 to [the Petitioner’s] actual and substantial disadvantage.” United States v. Frady, 456 U.S. 25 152, 170 (1982). To state a credible “fundamental miscarriage of justice” claim the 26 petitioner must establish his factual innocence. Bousley v. United States, 523 U.S. 614, 623 27 (1998). Innocence may be established with new evidence, Schlup v. Delo, 513 U.S. 298, 28 324 (1995), or a subsequent change in law that dictates the petitioner, as a legal matter, 1 could not have committed the alleged crime, Vosgien v. Persson, 742 F.3d 1131, 1136 (9th 2 Cir. 2014). In either case, the petitioner “must show that it is more likely than not that no 3 reasonable juror would have convicted him in light of the new evidence.” McQuiggen v. 4 Perkins, 133 S. Ct. 1924, 1935 (2013) (quoting Schlup, 513, U.S. at 327). 5 Petitioner objects to the Magistrate Judge’s determination that Petitioner’s counsel’s 6 failure to raise the constitutionality of A.R.S. § 13-1407(E) did not constitute cause and 7 prejudice. However, in reaching this conclusion, the Magistrate Judge appropriately relied 8 on a recent Ninth Circuit opinion in May v. Ryan, 766 F. App’x 505, 506 (9th Cir. 2019).2 9 In May the Ninth Circuit explained that the allegedly unconstitutional burden shifting 10 scheme in A.R.S. 13-1407(E) has a long-standing status as the law in Arizona; thus, the 11 petitioner’s trial counsel was not ineffective for failing to object to the statute’s 12 constitutionality. May, 766 F. App’x at 506. Because the Ninth Circuit has rejected 13 Petitioner’s precise argument, the court agrees with the R&R. 14 Petitioner also asserts that being convicted pursuant to an unconstitutional statute 15 constitutes cause and prejudice. There is, however, no support for this claim. See Johnson 16 v. Berkebile, CV 14–76–H–DLC–JTJ, 2015 WL 3649898, at *2 (D. Mont. June 11, 2015) 17 (explaining that a conviction imposed pursuant to an unconstitutional statue “is generally 18 insufficient to overcome a procedural default”); Schlup, 513 U.S. at 316 (“Without any 19 new evidence of innocence, even the existence of a concededly meritorious constitutional 20 violation is not in itself sufficient to establish a miscarriage of justice that would allow a 21 habeas court to reach the merits of a barred claim.”). 22 Petitioner does not otherwise establish cause and prejudice or make a showing of 23 actual innocence to overcome the procedural default. Rather, he argues that the procedural

24 2 Petitioner objects to the Magistrate Judge’s reliance on the Ninth Circuit opinion in May because it is not a published opinion and therefore may not be cited as precedent. However, 25 the Magistrate Judge does not rely on the opinion as precedent, but rather references the opinion to explain that the portion of the order principally relied on by Petitioner has been 26 vacated and is similarly not binding on this Court. See May, 766 Fed. App’x at 506 (“[W]e cannot conclude that trial counsel’s failure to object to the constitutionality of the statute 27 placing the burden of proving lack of intent on the defendant fell below an objective standard of reasonableness. The district court erred in holding otherwise. Because we do 28 not reach the constitutionality of the Arizona child molestation statute, we vacate the district court’s judgment in that respect.”) (internal citations and quotation marks omitted). 1 || default doctrine should not apply when the petitioner is challenging the constitutionality of || the underlying state statute, as opposed to a trial error or defect. Nevertheless, the law is || clear that Petitioner must establish an excuse for procedural default in order for a federal 4|| habeas court to review the merits of a procedurally defaulted claim. E.g., Coleman, 501 || U.S. at 748 (“[A] state procedural default of any federal claim will bar federal habeas unless 6 || the petitioner demonstrates cause and actual prejudice” or “a fundamental miscarriage of || justice”) (emphasis added); Martinez v. Ryan, 566 U.S. 1, at 9 (2012) (“[A] federal court 8 || will not review the merits of claims, including constitutional claims, that a state court 9|| declined to hear because the prisoner failed to abide by a state procedural rule” unless the 10 || petition can show “cause for the default and prejudice from a violation of federal law’). As 11 || explained above, no such excuse is established. 13 Having reviewed the record de novo, the Court adopts the R&R and denies and dismisses the Third Amended Petition with prejudice. The Court agrees with the Magistrate 15} Judge’s conclusion that all three grounds are procedurally defaulted without excuse. 16 IT IS HEREBY ORDERED that the R&R of Magistrate Judge Eileen S. Willett (Doc. 76) is ADOPTED. 18 IT IS FURTHER ORDERED that Petitioner’s Third Amended Petition for Writ □□ of Habeas Corpus (Doc. 52) is DENIED and DISMISSED with prejudice. 20 IT IS FURTHER ORDERED that the Motion for Inquiry (Doc. 78) is moot. 21 IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing 22 || Section 2254 Cases, in the event Petitioner files an appeal, the Court declines to issue a 23 || certificate of appealability because reasonable jurists would not find the Court’s procedural 24|| ruling debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). 25 IT IS FURTHER ORDERED directing the Clerk to enter judgment accordingly. 26 Dated this 12th day of November, 2019. 27 _ >) 28 A Whacrsay Fooes Musrray Chief United States’ District Judge -6-