1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Peter William Ruzzo, No. CV-23-00948-PHX-DJH
10 Petitioner, ORDER
11 v.
12 Ryan Thornell, et al.,
13 Respondents. 14 15 Pro se Petitioner Peter William Ruzzo (“Petitioner”) has filed a Petition for Writ 16 of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition”) (Doc. 1). On May 8, 2024, 17 United States Magistrate Judge Deborah M. Fine issued a Report and Recommendation 18 (“R&R”) recommending that the Petition be dismissed and denied with prejudice without 19 an evidentiary hearing. (Doc. 19 at 35–36). She further recommends that a Certificate of 20 Appealability be denied. (Id.) Judge Fine informed the parties they would have fourteen 21 days from the date of service of the R&R to file specific written objections. (Id. at 36). 22 Petitioner has filed his Objection (Doc. 22) and Respondents have filed a Reply 23 (Doc. 25). The Court overrules Petitioner’s objections and will adopt Magistrate Judge 24 Fine’s R&R in its entirety. 25 I. The Petition and R&R 26 Petitioner raises four grounds in his Petition. Judge Fine concludes that Grounds 27 One, Two, and Four were unexhausted but procedurally defaulted, making a stay 28 improper. She also finds that Petitioner has failed to establish a reason to excuse the 1 procedural defaults of Grounds One, Two, and Four. (Id. at 21–19). She further finds 2 that Petitioner waived Grounds One, Two and Four by pleading guilty. (Id. at 24–28). 3 As to Ground Three, Judge Fine found that it failed on the merits. 4 II. Legal Standards 5 This Court “may accept, reject, or modify, in whole or in part, the findings or 6 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The Court 7 “must review the magistrate judge’s findings and recommendations de novo if objection 8 is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 9 2003) (en banc). Indeed, the Court is not required to conduct “any review at all. . . of any 10 issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985); 11 see also 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). 12 III. Petitioner’s Objections 13 Petitioner objects to the finding that Grounds One, Two, and Four are unexhausted 14 and that he has not established cause to excuse any default. (Doc. 22 at 2–3). Petitioner 15 says he “will not argue Ground Four any further” and “cannot and will not claim actual 16 innocence nor a miscarriage of justice.” (Id. at 2). He also objects to the finding that he 17 waived his right to object to the imposition of his sentence when he plead guilty. (Id. 18 at 4). 19 A. Exhaustion 20 Petitioner first objects to the R&R’s finding that he did not fairly present his 21 claims to the appropriate state courts. Petitioner says “[w]hile, at every turn, Petitioner 22 did not mention a specific violation, the arguments, legal theory and prose inherently 23 addressed violations of constitutional rights. The initial PCR Petition (Exhibit I; Limited 24 Answer to Petition for Writ of Habeas Corpus) did mention 4th, 5th, 6th and 14th 25 Amendment violations.” (Doc. 22 at 3). 26 As the R&R explained, to meet the exhaustion requirement, a prisoner “must 27 ‘fairly present’ his claim in each appropriate state court. . . , thereby alerting that court to 28 the federal nature of the claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004). Fair 1 presentment of claims to the Arizona Court of Appeals requires a description of “both the 2 operative facts and the federal legal theory on which [a] claim is based so that the state 3 courts [could] have a ‘fair opportunity’ to apply controlling legal principles to the facts 4 bearing upon [the] constitutional claim.” Castillo v. McFadden, 399 F.3d 993, 999 (9th 5 Cir. 2005) (quoting Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003)). Upon review of 6 the state court records, the Court agrees with the R&R’s findings that Petitioner did not 7 fairly present his claims in each appropriate state court. 8 Petitioner did not cite or analyze any federal constitutional issues in his PCR 9 proceedings related to his claim in Ground One that his Sixth and Fourteenth Amendment 10 rights were violated because the state could not show that he had the requisite scienter to 11 transmit the unlawful images. His PCP Petition and petition for review similarly failed to 12 argue or analyze the basis for his Ground Two claim that a “dangerous crimes against 13 children” designation is a violation of his federal Sixth or Fourteenth Amendment rights. 14 The basis for his Fourth Amendment claim in Ground Four was also unpresented. As the 15 R&R noted, though his PCR petition for review to the Arizona Court of Appeals asserted 16 that “the police possess special investigative software that allows them to connect to 17 devices associated with I.P. addresses,” Petitioner did not argue that his Fourth 18 Amendment rights were violated, nor that the use of the tool was a search conducted 19 unlawfully without a warrant. (Doc. 12-3 at 32–33, 38–39). The R&R correctly 20 concluded that these claims were not fairly presented and thus unexhausted. (Doc. 19 at 21 18–20). Petitioner’s objections are overruled. 22 B. Cause and Prejudice to Excuse Procedural Default 23 Petitioner also objects to the R&R’s finding that he has failed to establish cause 24 and prejudice to excuse these procedurally defaulted claims. A petitioner can establish 25 “cause” excusing a procedurally defaulted claim when he can show “some objective 26 factor external to the defense impeded [his] efforts to comply with the State’s procedural 27 rules.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). To show “prejudice,” a 28 petitioner must demonstrate that the alleged constitutional violation worked to his “actual 1 and substantial disadvantage, infecting his entire trial with error of constitutional 2 dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982); Stokley v. Ryan, 705 F.3d 3 401, 403 (9th Cir. 2012). 4 Petitioner says he has established cause because the required standards “are near 5 impossible to meet without a 3 year law degree and west resources” and because the state 6 courts and Magistrate Judge have neglected “to look beyond procedural rules and 7 grounds” so as to understand the bases for his arguments. (Doc. 22 at 3). These 8 circumstances do not establish cause under the existing standards. Typically, a 9 petitioner’s pro se status and ignorance of the law do not satisfy the cause standard. And 10 the fact that courts apply procedural rules to assess the reviewability of claims is not an 11 external factor showing that Petitioner’s efforts were impeded.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Peter William Ruzzo, No. CV-23-00948-PHX-DJH
10 Petitioner, ORDER
11 v.
12 Ryan Thornell, et al.,
13 Respondents. 14 15 Pro se Petitioner Peter William Ruzzo (“Petitioner”) has filed a Petition for Writ 16 of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition”) (Doc. 1). On May 8, 2024, 17 United States Magistrate Judge Deborah M. Fine issued a Report and Recommendation 18 (“R&R”) recommending that the Petition be dismissed and denied with prejudice without 19 an evidentiary hearing. (Doc. 19 at 35–36). She further recommends that a Certificate of 20 Appealability be denied. (Id.) Judge Fine informed the parties they would have fourteen 21 days from the date of service of the R&R to file specific written objections. (Id. at 36). 22 Petitioner has filed his Objection (Doc. 22) and Respondents have filed a Reply 23 (Doc. 25). The Court overrules Petitioner’s objections and will adopt Magistrate Judge 24 Fine’s R&R in its entirety. 25 I. The Petition and R&R 26 Petitioner raises four grounds in his Petition. Judge Fine concludes that Grounds 27 One, Two, and Four were unexhausted but procedurally defaulted, making a stay 28 improper. She also finds that Petitioner has failed to establish a reason to excuse the 1 procedural defaults of Grounds One, Two, and Four. (Id. at 21–19). She further finds 2 that Petitioner waived Grounds One, Two and Four by pleading guilty. (Id. at 24–28). 3 As to Ground Three, Judge Fine found that it failed on the merits. 4 II. Legal Standards 5 This Court “may accept, reject, or modify, in whole or in part, the findings or 6 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The Court 7 “must review the magistrate judge’s findings and recommendations de novo if objection 8 is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 9 2003) (en banc). Indeed, the Court is not required to conduct “any review at all. . . of any 10 issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985); 11 see also 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). 12 III. Petitioner’s Objections 13 Petitioner objects to the finding that Grounds One, Two, and Four are unexhausted 14 and that he has not established cause to excuse any default. (Doc. 22 at 2–3). Petitioner 15 says he “will not argue Ground Four any further” and “cannot and will not claim actual 16 innocence nor a miscarriage of justice.” (Id. at 2). He also objects to the finding that he 17 waived his right to object to the imposition of his sentence when he plead guilty. (Id. 18 at 4). 19 A. Exhaustion 20 Petitioner first objects to the R&R’s finding that he did not fairly present his 21 claims to the appropriate state courts. Petitioner says “[w]hile, at every turn, Petitioner 22 did not mention a specific violation, the arguments, legal theory and prose inherently 23 addressed violations of constitutional rights. The initial PCR Petition (Exhibit I; Limited 24 Answer to Petition for Writ of Habeas Corpus) did mention 4th, 5th, 6th and 14th 25 Amendment violations.” (Doc. 22 at 3). 26 As the R&R explained, to meet the exhaustion requirement, a prisoner “must 27 ‘fairly present’ his claim in each appropriate state court. . . , thereby alerting that court to 28 the federal nature of the claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004). Fair 1 presentment of claims to the Arizona Court of Appeals requires a description of “both the 2 operative facts and the federal legal theory on which [a] claim is based so that the state 3 courts [could] have a ‘fair opportunity’ to apply controlling legal principles to the facts 4 bearing upon [the] constitutional claim.” Castillo v. McFadden, 399 F.3d 993, 999 (9th 5 Cir. 2005) (quoting Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003)). Upon review of 6 the state court records, the Court agrees with the R&R’s findings that Petitioner did not 7 fairly present his claims in each appropriate state court. 8 Petitioner did not cite or analyze any federal constitutional issues in his PCR 9 proceedings related to his claim in Ground One that his Sixth and Fourteenth Amendment 10 rights were violated because the state could not show that he had the requisite scienter to 11 transmit the unlawful images. His PCP Petition and petition for review similarly failed to 12 argue or analyze the basis for his Ground Two claim that a “dangerous crimes against 13 children” designation is a violation of his federal Sixth or Fourteenth Amendment rights. 14 The basis for his Fourth Amendment claim in Ground Four was also unpresented. As the 15 R&R noted, though his PCR petition for review to the Arizona Court of Appeals asserted 16 that “the police possess special investigative software that allows them to connect to 17 devices associated with I.P. addresses,” Petitioner did not argue that his Fourth 18 Amendment rights were violated, nor that the use of the tool was a search conducted 19 unlawfully without a warrant. (Doc. 12-3 at 32–33, 38–39). The R&R correctly 20 concluded that these claims were not fairly presented and thus unexhausted. (Doc. 19 at 21 18–20). Petitioner’s objections are overruled. 22 B. Cause and Prejudice to Excuse Procedural Default 23 Petitioner also objects to the R&R’s finding that he has failed to establish cause 24 and prejudice to excuse these procedurally defaulted claims. A petitioner can establish 25 “cause” excusing a procedurally defaulted claim when he can show “some objective 26 factor external to the defense impeded [his] efforts to comply with the State’s procedural 27 rules.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). To show “prejudice,” a 28 petitioner must demonstrate that the alleged constitutional violation worked to his “actual 1 and substantial disadvantage, infecting his entire trial with error of constitutional 2 dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982); Stokley v. Ryan, 705 F.3d 3 401, 403 (9th Cir. 2012). 4 Petitioner says he has established cause because the required standards “are near 5 impossible to meet without a 3 year law degree and west resources” and because the state 6 courts and Magistrate Judge have neglected “to look beyond procedural rules and 7 grounds” so as to understand the bases for his arguments. (Doc. 22 at 3). These 8 circumstances do not establish cause under the existing standards. Typically, a 9 petitioner’s pro se status and ignorance of the law do not satisfy the cause standard. And 10 the fact that courts apply procedural rules to assess the reviewability of claims is not an 11 external factor showing that Petitioner’s efforts were impeded. 12 Petitioner says he has been prejudiced because “the allegation made by the state 13 that Petitioner was sharing, knowingly, (scienter), cam material was and caused an 14 enduring prejudice.” (Id.) He says the state’s allegation that he shared the images could 15 not be proven beyond a reasonable doubt. (Id.) This objection is overruled. As the 16 Respondents point out, the statute under which Petitioner was charged makes knowingly 17 possessing or exchanging images a crime of sexual exploitation of a minor. See A.R.S. 18 13-3553(A)(2). The state was not required to establish Petitioner shared the images 19 under the statute. Accordingly, Petitioner cannot show that there was any constitutional 20 violation or that one infected his entire proceedings. 21 C. Waiver 22 Petitioner objects to the finding of waiver in the context of his Count Two claim. 23 Petitioner says he could not have constitutionally entered into a plea for Count Two 24 because the term “dangerous” under the state statute is unconstitutionally vague. (Id. at 25 4). He says because his counsel did not give him notice that “a ‘dangerous offense’ as 26 stated in A.R.S. § 13-105(13) is necessary to be tried and convicted under A.R.S. § 13- 27 705,” it was “factually impossible” for him “to make a sound and informed decision that 28 it would be considered voluntarily or intelligently made.” (Id.) 1 Petitioner makes this argument for the first time in his Objection to the R&R. It is || therefore improper. See Barbarin v. Madden, 2018 WL 6303889, at *1 (C.D. Cal. Nov. || 29, 2018) (“[T]he Court is not required to consider evidence, claims, or theories of relief 4|| presented for the first time in objections to an R&R.”), aff'd, 781 F. App’x 654 (9th Cir. || 2019). “Just as courts usually do not consider arguments raised for the first time in a 6|| reply, this Court ordinarily refuses to exercise that discretion to consider claims raised for the first time in objections to an R&R.” Jd. (internal quotations omitted). This is 8 || especially so where the Court has found that Count Two is procedurally defaulted without excuse. 10 Accordingly, 11 IT IS ORDERED Petitioner’s Motion for Status Update (Doc. 27) is granted. 12 IT IS FURTHER ORDERED adopting the May 8, 2024, Report and 13 || Recommendation (Doc. 19) as the Order of this Court. Petitioner’s objections are overruled and the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 15 || (“Petition”) (Doc. 1) is denied without an evidentiary hearing. Petitioner’s request for 16]| a Certificate of Appealability is also denied. 17 IT IS FINALLY ORDERED that the Clerk of Court shall terminate this action and enter judgment accordingly. 19 Dated this 24th day of November, 2025. 20
22 norable’Dian¢g4. Hurietewa 3 United States District Judge 24 25 26 27 28
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