Hannan, 290961 v. Ryan

• Court: District Court, D. Arizona
• Decided: September 24, 2019
• Docket: 3:18-cv-08150
• Status: Unknown

Opinion

1 2 3 NOT FOR PUBLICATION 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Duane H Hannan, No. CV-18-08150-PCT-SRB

10 Petitioner, ORDER

11 v.

12 Charles L Ryan, et al.,

13 Respondents. 14 15 The Court now considers Petitioner Duane H. Hannan (“Petitioner”)’s pro se 16 Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition”) (Doc. 1 17 (“Pet.”)). On May 6, 2019, the Magistrate Judge issued a Report and Recommendation, 18 recommending that the Petition be denied. (See Doc. 17, R. & R.) On June 19, 2019, 19 Petitioner filed his Objections. (See Doc. 20, Objs. to R. & R. (“Obj.”).) 20 I. BACKGROUND 21 The background of this case was summarized in the Report and Recommendation 22 and is incorporated in relevant part herein: 23 Pursuant to a plea agreement, on April 10, 2014, Petitioner pleaded guilty to Count 2 in CR201300392, Sexual 24 Conduct with a Minor Under 15 Years of Age, and to Count 1 25 in CR201300725, as amended to Attempted Child Molestation. (Doc. 15-1 at 22-26) Petitioner was represented by separate 26 counsel for each case. (Id. at 26) The conviction and sentence in CR201300725 is not challenged in this habeas matter, but 27 the case result is referenced for clarity regarding below 28 proceedings. 1 On May 8, 2014, the superior court sentenced Petitioner to the presumptive term of 20 years’ imprisonment on Count 2 2 of CR201300392 followed by community supervision 3 commencing immediately after his term of imprisonment. (Id. at 50) In June 2014, Petitioner filed a Notice of Post- 4 Conviction Relief (“PCR”) pursuant to Rule 32 of the Arizona 5 Rules of Criminal Procedure and specified he was seeking relief under CR201300725, but he described the charge and 6 sentence associated with CR201300392. (Doc. 15-1 at 56–58) 7 The superior court appointed him counsel. (Id. at 60) On August 27, 2014, Petitioner filed another Notice of PCR in 8 superior court, this time identifying CR201300392 as the case 9 for which he sought relief and listing the charges he was convicted of under both CR201300725 and CR201300392. (Id. 10 at 62-66) He indicated he was represented by counsel. (Id. at 11 66) The superior court ordered Petitioner’s counsel to file a PCR petition within 60 days or to file a notice she had 12 identified no colorable claim to assert. (Id. at 93) 13 In October 2014, Petitioner filed a motion requesting the production of records. (Id. at 95–98) On November 20, 14 2014, he filed “supplements” to his PCR petition under both 15 cases. (Id. at 100–122) On November 18, 2014, Petitioner’s counsel filed a notice of completion of review in the superior 16 court under CR201300392, averring she had not been able to 17 identify a “tenable issue” to support a PCR action. (Id. at 124– 125) The superior court dismissed Petitioner’s PCR petition. 18 (Doc. 15-2 at 2–5) The judge noted that at the time of 19 Petitioner’s change of plea hearing, which he also presided over, he had observed the demeanor of Petitioner and his 20 counsel in CR201300392 and that he concluded Petitioner had 21 been truthful when he had advised the court his plea had not been the result of any force, threats, or coercion, and that 22 Petitioner was not being truthful by asserting in his amended 23 petition that his trial counsel had “scared him into pleading guilty.” (Id. at 3) Petitioner appealed the superior court’s ruling 24 to the Arizona Court of Appeals. (Id. at 7) 25 In June 2015, Petitioner filed with the superior court a petition for writ of error coram nobis, seeking to assert a 26 speedy trial right claim. (Id. at 14–16) The superior court 27 entered a notice stating it lacked jurisdiction to rule on the petition while Petitioner’s appeal was pending in the court of 28 appeals. (Id. at 25) Petitioner timely appealed the superior 1 court’s ruling to the court of appeals. (Id. at 27, 29–34) He asserted: (1) the buccal swab evidence was taken illegally; (2) 2 the state improperly refused to disclose all recordings of police 3 interviews with the victims and failed to disclose inconsistencies in the statements of the victim in 4 CR201300392, violating his state and federal constitutional 5 protections; (3) county detention officials improperly removed exculpatory letters written by the victims from his jail cell, 6 violating his Sixth Amendment rights; and (4) his trial counsel 7 coerced him to plead guilty by telling him he would be sentenced to 54 years’ imprisonment if he did not take the 8 offered plea agreement. (Id.) In November 2015, Petitioner 9 submitted a document to the court of appeals captioned as an amendment to his opening brief, asserting a speedy trial 10 violation under state and federal constitutions and rules. (Id. at 11 66–68) The court of appeals denied Petitioner’s motion to amend his petition as “unnecessary.” (Id. at 73) 12 The Arizona Court of Appeals filed its decision on the 13 petition for review in March 2017, denying relief. (Doc. 15-2 at 96–99) Although Petitioner filed a notice of appeal in the 14 court of appeals declaring he would seek review in the Arizona 15 Supreme Court, the record indicates he failed to file a petition for review in the state high court and also did not file a motion 16 for reconsideration in the court of appeals. Because Petitioner 17 did not make either of these two filings, the court of appeals issued its mandate on April 21, 2017. (Id. at 95) 18 Petitioner filed a second PCR petition in CR201300392 19 with the superior court on May 4, 2017. (Doc. 15-2 at 103– 20 105) He asserted that “speedy trial rights were exceeded but [were] unknown to Petitioner until October 2014[,]” and that 21 newly discovered evidence existed that would have changed his verdict or sentence. (Id. at 104) He indicated he was raising 22 an ineffective assistance of counsel (“IAC”) claim. (Id. at 104) 23 The superior court denied appointment of counsel and dismissed Petitioner’s second notice of PCR pursuant to 24 Arizona Rule of Criminal Procedure 32(a)(3), stating that 25 Petitioner had waived his claim when he entered his guilty plea and in any event did not raise it in his first PCR action. (Id. at 26 109–110) Petitioner filed a notice of appeal in the superior 27 court stating he was seeking review in the Arizona Court of Appeals. (Doc. 15-3 at 2, 3) The court of appeals treated 28 Petitioner’s action as a petition for review and conducted a 1 review of the record. (Id. at 5–6) The court dismissed the petition for review because it was untimely pursuant to Arizona 2 Rule of Criminal Procedure 32.9(c). (Id. at 5) Petitioner filed a 3 petition for review in the Arizona Supreme Court in which he argued his speedy trial violation claim and his argument that 4 the DNA buccal swab from his victim’s child was illegally 5 obtained. (Id.at 11–13) The supreme court denied review without discussion by order dated February 14, 2018. (Id. at 6 35) 7 (R. & R. at 2–6.) 8 9 On July 9, 2018, Petitioner filed his Petition, asserting four grounds for relief: (1) 10 the State knowingly violated his speedy trial rights guaranteed by the United States and 11 Arizona Constitutions (“Ground One”); (2) DNA evidence of the newborn child of one of 12 his victims was collected in violation of the Fourth Amendment (“Ground Two”); (3) the 13 State violated Petitioner’s right to present evidence in his own defense when exculpatory 14 letters from his victims “came up missing” during a cell transfer (“Ground Three”); and (4) 15 Petitioner’s due process rights were violated when the State denied him “use of court 16 records, evidence compiled by [the] State, actual interviews, and DNA chain of custody 17 and results” in his first state PCR proceeding (“Ground Four”). (“Pet.” at 6–9.) The 18 Magistrate Judge rejected every ground and recommended the Court deny the Petition. (R. 19 & R. at 1.) Petitioner raises four objections: (1) the Petition is timely (“Objection One”); 20 (2) Petitioner’s claims are cognizable in habeas (“Objection Two”); (3) Petitioner’s guilty 21 plea did not waive his claim involving the missing victim letters (“Objection Three”); and 22 (4) Petitioner did not procedurally default his claims (“Objection Four”). (Obj. at 3–15.) 23 II. LEGAL STANDARD AND ANALYSIS 24 A district court “shall make a de novo determination of those portions of the report 25 . . . to which objection is made,” and “may accept, reject, or modify, in whole or in part, 26 the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). 27 The court need review only those portions objected to by a party, meaning the court can 28 adopt without further review all portions not objected to. See United States v. Reyna–Tapia, 1 328 F.3d 1114, 1121 (9th Cir. 2003). 2 A. Objection One: Timeliness 3 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) requires a 4 state prisoner to file a federal habeas petition within one year of “the date on which the 5 judgment became final by the conclusion of direct review or the expiration of time for 6 seeking such review.”1 28 U.S.C. § 2244(d)(1)(A). For plea-convicted defendants in 7 Arizona, Rule 32’s “of-right proceeding” is one form of “direct review” within the meaning 8 of 28 U.S.C. § 2244(d)(1)(A). Summers v. Schriro, 481 F.3d 710, 716–17 (9th Cir. 2007); 9 see Ariz. R. Crim. P. 32. Rule 32’s of-right proceeding includes both “the first post- 10 conviction proceeding,” in which prisoners may challenge their conviction, custody, or 11 sentence, “as well as the timely filed proceeding that follows it,” in which prisoners may 12 challenge the effectiveness of counsel in the first proceeding. Osterkamp v. Browning, 250 13 P.3d 551, 554 n.1, 555–56 (Ariz. Ct. App. 2011). This second proceeding protects the due 14 process right to effective assistance of counsel in what, for the pleading defendant, is 15 effectively his first appeal of right. Id. at 556; see also Pennsylvania v. Finley, 481 U.S. 16 551, 555 (1987) (recognizing the right to counsel in first appeal of right). In other words, a 17 conviction made in Arizona pursuant to a plea agreement becomes “final”— and AEDPA’s 18 one-year clock begins to run—when a timely initiated second PCR proceeding concludes 19 and the time for seeking review expires. 20 Because Petitioner was convicted pursuant to a plea agreement, his of-right Rule 32 21 proceeding was a form of direct review. (See Doc. 15-1, Plea Agreement at 22–26.) As 22 such, AEDPA’s one-year clock did not begin to run until this proceeding concluded and 23 the time, if any, for seeking further review expired. Under Osterkamp, this proceeding 24 included Petitioner’s first PCR proceeding, in which he challenged his conviction, and his 25 second PCR proceeding, if it was properly filed and if in it, he challenged the effectiveness 26 of counsel in the first proceeding. (Doc. 15-1, June 18, 2014 Notice of PCR at 56–58; Doc. 27 15-2, May 8, 2017 Notice of PCR at 103–05.)

28 1 While there are other triggers for starting the running of the statute of limitations, none is relevant here. See 28 U.S.C. § 2244(d)(1)(B)–(D). 1 Parties and the Magistrate Judge disagree over whether the second PCR notice was 2 properly filed. The Magistrate Judge determined the second PCR notice was not properly 3 filed because it raised an untimely speedy trial claim. (R. & R. at 11–12.) Petitioner argues 4 that a state PCR notice raising timely claims is not improperly filed simply because it also 5 raises untimely claims, and that he timely raised an ineffective assistance of counsel claim. 6 (Obj. at 4; see id. (conceding the speedy trial claim was untimely)). When the state PCR 7 court has not “clearly ruled” on the timeliness of a state PCR filing, it is the responsibility 8 of the habeas court to consider whether the state PCR filing was timely as a matter of state 9 law before counting days toward AEDPA’s one-year limit. Carey v. Saffold, 536 U.S. 214, 10 226–27 (2002); see also Evans v. Chavis, 546 U.S. 189, 198 (2006) (“[T]he [federal court] 11 must itself examine the delay in each case and determine what the state courts would have 12 held in respect to timeliness.”). The state PCR court did not clearly rule on the timeliness 13 of Petitioner’s second PCR notice: it dismissed Petitioner’s second PCR notice after 14 apparently evaluating its merits. (See Doc. 15-2, June 6, 2017 Order at 109–10 (“[A] review 15 of the record shows [Petitioner’s claim] has no merit[.]”).) It is therefore the Court’s 16 responsibility to consider whether the second PCR notice was timely and otherwise 17 properly filed. 18 Arizona Rule of Criminal Procedure 32.4(a)(2)(C) permits a defendant to “raise an 19 of-right claim of ineffective assistance of Rule 32 counsel in a successive Rule 32 notice” 20 within “30 days after the final order or mandate in the defendant’s of-right petition for post- 21 conviction relief.” The appellate court issued its mandate on April 21, 2017, so Petitioner 22 had thirty days, or until May 22, 2017, to file a notice claiming ineffective assistance of 23 counsel in his first Rule 32 proceeding. Petitioner filed a notice on May 8, 2017 and 24 checked a box indicating he was “raising a claim of ineffective assistance of counsel.” (See 25 Doc 15-2, Notice of Post-Conviction Relief, at 103–05.) This arguably satisfied Rule 32.4’s 26 filing requirements.2 27 2 See Osterkamp, 250 P.3d at 555 (“In an of-right proceeding, a ‘timely’ notice . . . 28 [includes] a notice filed within thirty days . . . after this court issues its mandate.”); Pruett, 1 The State argues that Rule 32.4’s thirty-day deadline to file an ineffective assistance 2 of counsel claim does not apply because “no claim of ineffective assistance of PCR counsel 3 was asserted in the second PCR proceeding.” (Doc. 21, Resp. to Obj. (“Resp.”) at 3.) The 4 State reasons that, while Petitioner checked the box indicating he was “raising a claim of 5 ineffective assistance of counsel,” on that same form, Petitioner also indicated that he did 6 not have previous appellate or PCR counsel. (Resp. at 3–4.) Thus, the state PCR court 7 “reasonably interpreted the second PCR proceeding’s checked-box IAC claim as a claim 8 concerning trial counsel.” (Resp. at 4 (emphasis in original).) But this argument is 9 misdirected: because the state PCR court did not “clearly rule[]” on the timeliness of the 10 notice, its understanding of Petitioner’s IAC claim as concerning trial counsel is irrelevant. 11 And the Supreme Court has directed that “[t]he handwritten pro se document is to be 12 liberally construed.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). A liberal construction is 13 particularly appropriate where, as here, such a construction would further the purpose of 14 Rule 32’s second proceeding: to permit defendants “to allege that the attorney appointed 15 in the first PCR proceeding was constitutionally ineffective.” Powell v. Ryan, No. CV-14- 16 02043-TUC-RM, 2016 WL 4473066, at *2 (D. Ariz. Aug. 25, 2016); see also Osterkamp, 17 250 P.3d at 556. 18 Because Petitioner used the proper form, in compliance with Arizona Rule of 19 Criminal Procedure 32.4(a)(3), to file his second PCR notice within 30 days of conclusion 20 of the first, in compliance with Arizona Rule of Criminal Procedure 32.4(a)(2)(C), and 21 indicated he sought to raise a claim of ineffective assistance of counsel, arguably in 22 compliance with Rosales and other Arizona case law, the Court assumes that Petitioner’s 23 912 P.2d at 1360 (holding that pleading defendant’s second notice of PCR raising a claim 24 of ineffectiveness of previous PCR counsel is timely if filed within thirty days of mandate affirming denial of first PCR petition); State v. Rosales, 66 P.3d 1263, 1266 (Ariz. Ct. App. 25 2003) (finding “no fatal flaws on the face of petitioner’s [second] notice of post-conviction relief” where “the notice merely noted the possibility that a claim of ineffective assistance 26 of counsel might be raised” and did not “purport to set forth in the notice an exhaustive list of the claims to be raised in the petition”). Arizona’s rules permitted Petitioner to follow 27 up his second PCR notice with a corresponding petition, which could have expounded upon any ineffective assistance of counsel claim raised in the notice. See Ariz. R. Crim. P. 28 32.4(a), (c). 1 second PCR notice was properly filed. Under that assumption, Petitioner’s second PCR 2 proceeding concluded on February 14, 2018, when the Arizona Supreme Court denied 3 review of the Arizona Court of Appeal’s affirmation of the state PCR court’s dismissal of 4 his second PCR notice. (Doc 15-3, Feb. 14, 2018 Order at 35.) Petitioner’s time for seeking 5 review in the United States Supreme Court expired on May 15, 2018, ninety days after his 6 second PCR notice was denied.3 His AEDPA one-year clock began to run the next day, on 7 May 16, 2018. See Patterson v. Stewart, 251 F.3d 1243, 1245–47 (9th Cir.2001) (AEDPA’s 8 limitations period begins to run on the day after the triggering event pursuant to Fed. R. 9 Civ. P. 6(a)). When Petitioner filed his Petition on July 9, 2018, then, only 54 days of his 10 one-year limit had expired.4 Because his Petition is arguably timely, the Court sustains 11 Objection One. 12 B. Objection Two: Cognizability 13 “District courts adjudicating habeas petitions under § 2254 are instructed to 14 summarily dismiss claims that are clearly not cognizable.” Clayton v. Biter, 868 F.3d 840, 15 845 (9th Cir. 2017). “[F]ederal habeas corpus relief does not lie for errors of state law.” 16 Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (quotation and citations omitted); see also 17 28 U.S.C § 2254(a) (state prisoner may seek habeas relief “only on the ground that he is in 18 custody in violation of the Constitution or laws or treaties of the United States”). 19 i. Ground One 20 Ground One asserts a speedy trial violation under the United States and Arizona 21 3 See Bowen v. Roe, 188 F.3d 1157, 1158–59 (9th Cir. 1999) (“[T]he period of ‘direct 22 review’ in 28 U.S.C. § 2244(d)(1)(A) includes the period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme Court, whether or not the 23 petitioner actually files such a petition.”); Sup. Ct. R. 13 (ninety days to file petition for writ of certiorari); see also Torrez v. Ryan, No. CV08-952-PHX-NVW, 2009 WL 1846830, 24 at *2 (D. Ariz. June 26, 2009) (recognizing that plea-convicted state prisoners can seek review in the United States Supreme Court after conclusion of direct review in state court, 25 which may include Rule 32 proceedings). 4 The time between the Arizona Court of Appeal’s mandate following the first PCR 26 proceeding and Petitioner’s filing of the second PCR notice did not start AEDPA’s one- year clock because the second PCR proceeding is best understood as “part of a single round 27 of [state] habeas relief[.]” See Banjo v. Ayers, 614 F.3d 964, 968 (9th Cir. 2010) (citing Evans v. Chavis, 546 U.S. 189, 191–93 (2006)); see also Osterkamp, 250 P.3d at 555–56 28 (“[T]he of-right proceeding includes the first post-conviction proceeding as well as the timely filed proceeding that follows it.”). 1 Constitutions. (See Pet. at 6.) To the extent that Ground One is based on the Arizona 2 Constitution—state law—it is not cognizable in habeas. Petitioner argues that the 3 Magistrate Judge erred in concluding otherwise because “an error of state law that amounts 4 to a due process violation can be raised in habeas.” (Obj. at 6.) But Petitioner does not 5 argue that Ground One amounts to a violation of due process; he argues it amounts to a 6 violation of the speedy trial guarantee of the Arizona Constitution. (Pet. at 6.) This 7 argument is not cognizable in habeas. Objection Two, as applied to Ground One’s Arizona 8 Constitution claim, is overruled. 9 ii. Ground Three 10 Ground Three—that county detention officials improperly removed from 11 Petitioner’s jail cell exculpatory letters written by his victims, violating his right to present 12 a defense—is similarly unreviewable. (See Pet. at 8.) Absent a demonstration of cause and 13 prejudice, habeas courts cannot review state application of state procedural rules. Martinez 14 v. Ryan, 926 F.3d 1215, 1224–25 (9th Cir. 2019). At best, Ground Three alleges that state 15 procedural rules governing the production of documents resulted in Petitioner’s inability 16 to use the letters. (See R. & R. at 13 (interpreting Ground Three as such).) Petitioner’s 17 claim that Britt v. North Carolina5 and Lane v. Brown6 stand for a contrary proposition is 18 incorrect. (See Obj. at 7.) Britt and Lane involved alleged denials of the Fourteenth 19 Amendment’s equal protection guarantee after state trial courts refused to grant free copies 20 of transcripts to indigent defendants. Britt, 404 U.S. at 227; Lane, 372 U.S. at 482–83. 21 Petitioner, in contrast, alleges no equal protection violation in connection with the missing 22 victim letters and raises no colorable claim that the missing letters deprived him of due 23 process. (See Obj. at 9–11.) Because Ground Three involves a state court’s application of 24 state procedural rules, and Petitioner demonstrates no cause or prejudice, Ground Three is 25 not cognizable in habeas. Objection Two, as applied to Ground Three, is overruled. 26 iii. Ground Four 27 Ground Four—presented by Petitioner as a claim that the State violated his due

28 5 404 U.S. 226 (1971). 6 372 U.S. 477 (1963). 1 process rights by not providing him documents in his first PCR proceeding—was construed 2 by the Magistrate Judge as a claim of ineffective assistance of PCR counsel. (Pet. at 9; R. 3 & R. at 15.) Petitioner accepts this characterization but objects to the Magistrate Judge’s 4 conclusion that Ground Four is noncognizable, arguing that the Magistrate Judge based 5 this conclusion on an incorrect premise: that Petitioner was not constitutionally entitled to 6 counsel in his first state PCR proceeding. (Obj. at 8–9.) Petitioner is correct. 7 Citing Coleman v. Thompson,7 the Magistrate Judge reasoned that “[t]here is no 8 constitutional right to an attorney in state [PCR] proceedings” so “a petitioner cannot claim 9 constitutionally ineffective assistance of counsel in such proceedings.” (R. & R. at 15.) But 10 in Arizona, there is a constitutional right to an attorney in certain PCR proceedings: 11 Coleman’s rule does not apply when non-capital, plea-convicted defendants pursue relief 12 through Rule 32. When “a defendant who pleads guilty in a non-capital case waives his 13 right to a direct appeal,” Rule 32 proceedings become “the sole available avenue” for that 14 defendant to exercise his constitutional right to appellate review. Ree v. Ryan, No. CV-13- 15 00746-TUC-RM, 2015 WL 3889360, at *1 (D. Ariz. June 23, 2015) (citing Pruett, 912 16 P.2d at 1359–60); see also Summers, 481 F.3d at 711 (holding that Arizona’s Rule 32 of- 17 right proceeding is a form of “direct review” for pleading defendants). Because Rule 32 is 18 a non-capital pleading defendant’s sole opportunity for direct review, prisoners pursuing 19 Rule 32 relief are constitutionally entitled to effective assistance of counsel. Id. (citing 20 Pruett, 912 P.2d at 1360); see also Evitts v. Lucey, 469 U.S. 387, 396 (1985) (“A first 21 appeal as of right therefore is not adjudicated in accord with due process of law if the 22 appellant does not have the effective assistance of an attorney.”); see also Ramon v. Ryan, 23 2010 WL 3564819, at *11 (D. Ariz. July 23, 2010) (Arizona pleading defendant has a right 24 to counsel in his Rule 32 of-right post-conviction proceeding); Walker v. Ryan, 2015 WL 25 10575864, at *5 (D. Ariz. Oct. 21, 2015) (same). Therefore, a claim of ineffective 26 assistance of counsel in a pleading defendant’s Rule 32 proceeding is just as reviewable as 27 a claim of ineffective assistance of appellate counsel in a nonpleading defendant’s direct 28 7 501 U.S. 722, 752 (1991). 1 appeal. Osterkamp, 250 P.3d at 557 (Rule 32 proceeding is “the procedural equivalent of a 2 first appeal”). The Magistrate Judge erred in concluding otherwise. 3 Nevertheless, Ground Four is unreviewable because it was procedurally defaulted. 4 In his first state PCR proceeding, Petitioner requested production of the documents 5 referenced in Ground Four, and the state PCR court denied these requests on the basis of 6 state procedural law. (See Doc. 15-1, Request for Prep. of PCR Record at 90; Doc 15-1, 7 Mot. to Request Prod. of Records at 95–98, 105–08; Doc. 15-2, Apr. 20, 2015 Order at 4.) 8 “[A] federal court may not review federal claims that were procedurally defaulted in state 9 court—that is, claims that the state court denied based on an adequate and independent 10 state procedural rule.” Davila v. Davis, 137 S. Ct. 2058, 2064 (2017). Because the 11 documents were denied based on a state procedural rule independent of any federal 12 question and adequate to support the denial, the Court cannot review this denial, or 13 counsel’s role, if any, in this denial. 14 C. Objection Four: Procedural Default 15 iv. Ground One 16 Petitioner objects to the Magistrate Judge’s conclusion that Ground One, to the 17 extent it alleges a speedy trial violation under the United States Constitution, was 18 procedurally barred because he failed to raise it in his first state PCR action when he knew 19 of it but failed to assert it, and would now be prohibited from raising it under Arizona Rule 20 of Criminal Procedure 32.2(a)(3). (R. & R. at 17 (citing Doc. 15-2, June 6, 2017 Order at 21 110).) In his Objections, Petitioner recasts Ground One as an ineffective assistance of 22 counsel claim, arguing that because he was “deprived of counsel on his timely as of-right 23 second PCR . . . it is not appropriate to attribute any procedural violation [in the first PCR] 24 to him.” (Obj. at 12.) The Court may decline to consider new allegations presented for the 25 first time in objections. See United States v. Howell, 231 F.3d 615, 621–22 (9th Cir. 2000). 26 Because Petitioner only now presents Ground One as an ineffective assistance of counsel 27 claim, the Magistrate Judge had no opportunity to consider it. The Court therefore 28 considers Ground One as presented in the Petition: “[the] State knowingly violated 1 Petitioner’s right to a speedy trial [in violation of the] U.S. Constitution.” (Pet. at 6.) The 2 Magistrate Judge correctly concluded that by failing to properly raise this claim in his first 3 PCR action, Petitioner failed satisfy the exhaustion requirements set forth in Baldwin v. 4 Reese8 and Casey v. Moore.9 (R. & R. at 17.) Moreover, by pleading guilty, Petitioner 5 waived any speedy trial violation. See Ortberg v. Moody, 961 F.2d 135, 136–38 (9th Cir. 6 1992) (holding that guilty plea barred habeas consideration of claims alleging, among other 7 things, denial of right to speedy trial). In any event, the state PCR court independently 8 reviewed the record for a speedy trial violation, and found none. (Doc. 15-2, June 6, 2017 9 Order at 109–10.) Objection Four, as applied to Ground One, is overruled. 10 v. Ground Two 11 Ground Two—that a buccal swap was illegally collected from a baby of one of 12 Petitioner’s victims, in violation of Petitioner’s Fourth Amendment rights—is also 13 procedurally barred. The Magistrate Judge concluded that Ground Two is unreviewable in 14 habeas because at the trial court level Petitioner neither moved to suppress this evidence 15 nor argued he was prevented from moving to suppress the evidence. (R. & R. at 13.) 16 Petitioner objects only on the basis that Ground Two is “[p]roperly considered” as “one of 17 IAC, not an independent claim.” (Obj. at 8.) As with Ground One, the Court declines to 18 consider this argument because it was raised for the first time in his Objections. See Howell, 19 231 F.3d at 621–22. 20 Even if the Court accepted Petitioner’s recharacterization, and agreed that 21 Petitioner’s trial counsel should have filed a motion to suppress the buccal-swab evidence, 22 Petitioner’s guilty plea renders this claim moot. A valid guilty plea “results in the 23 defendant’s loss of any meaningful opportunity he might otherwise have had to challenge 24 the admissibility of evidence obtained in violation of the Fourth Amendment.” Haring v. 25 Prosise, 462 U.S. 306, 320 (1983). “[W]hen a defendant is convicted pursuant to his guilty 26 plea rather than a trial, the validity of that conviction cannot be affected by an alleged 27 Fourth Amendment violation because the conviction does not rest in any way on evidence

28 8 541 U.S. 27, 29 (2004). 9 386 F.3d 896, 916 (9th Cir. 2004). 1 that may have been improperly seized.” Id. at 321. As Petitioner presents no colorable 2 claim that his plea was coerced or otherwise invalid, Objection Four, as applied to Ground 3 Two, is overruled. 4 D. Objection Three: Claims Waived by Guilty Plea 5 Because the Court concludes that Ground Three is noncognizable, the Court does 6 not reach Objection Three—that by pleading guilty, Petitioner did not waive his claim 7 regarding the missing victim letters. (See Obj. at 9–11.) In any event, Objection Three is 8 meritless. Petitioner cites Class v. United States10 to support Objection Three. (Obj. at 9– 9 10.) But Class reiterates that a valid guilty plea “renders irrelevant—and thereby prevents 10 the defendant from appealing—the constitutionality of case-related government conduct 11 that takes place before the plea is entered.” Id. at 805. By signing a guilty plea, Petitioner 12 admitted to the crimes the missing victim letters would allegedly exculpate him of— 13 rendering any claim regarding the missing letters irrelevant to his current custody. See id. 14 (stating a guilty plea “is, of course, a confession of all the facts charged in the indictment”) 15 (citing Commonwealth v. Hinds, 101 Mass 209, 210 (1869) (quotation omitted)). 16 III. CONCLUSION 17 Because the Court finds Petitioner’s Petition arguably timely, it sustains Objection 18 One. The Court overrules Objections Two, Three, and Four. The Court adopts the Report 19 and Recommendation in relevant part and denies and dismisses the Petition with prejudice. 20 IT IS ORDERED sustaining Objection One raised in the Objections to Magistrate 21 Judge’s Report and Recommendation (Doc. 20). 22 IT IS FURTHER ORDERED overruling Objections Two, Three, and Four raised 23 in the Objections to Magistrate Judge’s Report and Recommendation (Doc. 20). 24 IT IS FURTHER ORDERED adopting in relevant part the Report and 25 Recommendation of the Magistrate Judge as the Order of this Court (Doc. 17). 26 IT IS FURTHER ORDERED denying and dismissing with prejudice the Petition 27 Under 28 U.S.C. § 2254 For a Writ of Habeas Corpus by a Person in State Custody 28 10 138 S. Ct. 798 (2018). (Doc. 1). 2 IT IS FURTHER ORDERED denying any Certificate of Appealability and leave 3 || to proceed in forma pauperis on appeal. The dismissal of the Petition is justified because 4|| Petitioner has not made a substantial showing of the denial of a constitutional right. 5 IT IS FURTHER ORDERED directing the Clerk to enter judgment accordingly. 6 7 Dated this 24th day of September, 2019. 8 9 Sesen fiabton I! Susan R. Bolton United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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