Steven Yarrito v. Charles L. Ryan

Opinion

1 WO 2 3 4 5

9 Steven Yarrito, No. CV-17-3034-PHX-JJT (DKD)

10 Petitioner,

11 v. REPORT AND RECOMMENDATION

12 Charles L. Ryan,

13 Respondent. 14 15 16 TO THE HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT JUDGE: 17 Steven Yarrito filed a Petition for Writ of Habeas Corpus (“Petition”) challenging 18 his convictions and sentences in Yuma County Superior Court. As explained below, the 19 Court recommends that his Petition be denied and dismissed with prejudice. 21 Following his May 2009 indictment, Yarrito was found guilty by a jury in Yuma 22 County Superior Court for two counts of Sexual Conduct with a Minor and one count of 23 Contributing to the Delinquency of a Minor. (Doc. 14, Exs. B, C, D) Yarrito was 24 sentenced to consecutive, mitigated terms of 13 years for the sexual conduct counts and a 25 presumptive, concurrent term of 6 months for the delinquency count. (Doc. 14, Exs. E, 26 F) On direct appeal, Yarrito argued that his Sixth Amendment speedy trial rights had 27 been violated. (Doc. 14, Exs. H, I, J) The Arizona Court of Appeals disagreed and 28 affirmed his convictions and sentences. (Doc. 14, Ex. K) 1 Yarrito initiated post-conviction proceedings by filing a Notice of Post-Conviction 2 Relief. (Doc. 14, Ex. L) After a series of unexpected delays, his counsel filed a Petition 3 which argued Yarrito had received ineffective assistance of counsel. (Docs. 14, Exs. M, 4 N, O, P, Q, R) At the conclusion of briefing, the Superior Court concluded that Yarrito 5 was not entitled to relief. (Doc. 14, Exs. S, T, U) Yarrito’s counsel requested and 6 received a withdrawal from the case and Yarrito subsequently requested and received 7 seven extensions of time to file his Petition for Review. (Doc. 14, Exs. V, W, X, Y, Z, 8 AA, BB, CC, DD) Yarrito then filed a Motion for Rehearing and a Motion for an 9 Evidentiary Hearing in Yuma County Superior Court and, at the conclusion of briefing, 10 the Court denied them both. (Doc. 14, Exs. EE, FF, GG, HH, II, JJ) The Court gave 11 Yarrito “one additional extension of time to file a Petition for Review to the Arizona 12 Court of Appeals.” (Doc. 14, Ex. JJ) 13 Yarrito then filed several more motions in Yuma County Superior Court including 14 a Petition for Post-Conviction Relief, a Motion for Judgment on the Pleadings, a Motion 15 to Stay Appellate Review to Consolidate, and a Motion for an Evidentiary Hearing. The 16 Court ordered responses and, at the conclusion of briefing, denied Yarrito’s motions. 17 (Doc 14, Exs. KK, LL, MM, NN, OO, PP, QQ, RR, SS, TT, UU, VV, WW) Yarrito then 18 filed a pro per Notice of Appeal which was dismissed by the Arizona Court of Appeals as 19 untimely on May 22, 2017. (Doc. 14, Exs. XX, AAA, BBB) 20 Yarrito was appointed counsel in May 2017 and his counsel requested and 21 received an extension of time to file a Petition for Review. (Doc. 14, Exs. YY, ZZ) The 22 record indicates that counsel did not file a Petition but there is no indication when or how 23 this representation terminated. (Doc. 14, Ex. CCC) 24 On September 5, 2017, Yarrito filed a Petition for Writ of Habeas Corpus in this 25 Court raising four claims of ineffective assistance of trial and appellate counsel. (Doc. 1) 26 Respondents argue that all of these claims are unexhausted and procedurally barred. 27 (Doc 14) In reply, Yarrito argues that this Court should review the substance of his 28 claims. (Doc. 15) 2 Exhaustion of Remedies. A state prisoner must properly exhaust all state court 3 remedies before this Court can grant an application for a writ of habeas corpus. 28 4 U.S.C. § 2254(b)(1), (c); Duncan v. Henry, 513 U.S. 364, 365 (1995); Coleman v. 5 Thompson, 501 U.S. 722, 731 (1991). Arizona prisoners properly exhaust state remedies 6 by fairly presenting claims to the Arizona Court of Appeals in a procedurally appropriate 7 manner. O’Sullivan v. Boerckel, 526 U.S. 838, 843-45 (1999); Swoopes v. Sublett, 196 8 F.3d 1008, 1010 (9th Cir. 1999); Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). To 9 be fairly presented, a claim must include a statement of the operative facts and the 10 specific federal legal theory. Baldwin v. Reese, 541 U.S. 27, 32-33 (2004); Gray v. 11 Netherland, 518 U.S. 152, 162-63 (1996); Duncan, 513 U.S. at 365-66. 12 Procedural Default. A claim can also be subject to an express or implied 13 procedural bar. Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). An express 14 procedural bar exists if the state court denies or dismisses a claim based on a procedural 15 bar “that is both ‘independent’ of the merits of the federal claim and an ‘adequate’ basis 16 for the court’s decision.” Harris v. Reed, 489 U.S. 255, 260 (1989). Stewart v. Smith, 17 536 U.S. 856, 860 (2002) (Arizona’s “Rule 32.2(a)(3) determinations are independent of 18 federal law because they do not depend upon a federal constitutional ruling on the 19 merits”); Johnson v. Mississippi, 486 U.S. 578, 587 (1988) (“adequate” grounds exist 20 when a state strictly or regularly follows its procedural rule). See also Ylst v. 21 Nunnemaker, 501 U.S. 797, 801 (1991); Robinson, 595 F.3d at 1100. 22 An implied procedural bar exists if a claim was not fairly presented in state court 23 and no state remedies remain available to the petitioner. Teague v. Lane, 489 U.S. 288, 24 298-99 (1989); Rose v. Lundy, 455 U.S. 509, 519-20 (1982); Beaty v. Stewart, 303 F.3d 25 975, 987 (9th Cir. 2002); Poland v. Stewart, 169 F.3d 573, 586 (9th Cir. 1999); White v. 26 Lewis, 874 F.2d 599, 602 (9th Cir. 1989). 27 This Court can review a procedurally defaulted claim if the petitioner can 28 demonstrate either cause for the default and actual prejudice to excuse the default, or a 1 miscarriage of justice. 28 U.S.C. § 2254(c)(2)(B); Schlup v. Delo, 513 U.S. 298, 321 2 (1995); Coleman, 501 U.S. at 750; Murray v. Carrier, 477 U.S. 478, 495-96 (1986); 3 States v. Frady, 456 U.S. 152, 167-68 (1982). 5 Yarrito did not exhaust any of the claims in his habeas petition and an implied 6 procedural bar now exists to prevent him from doing so. To meet the exhaustion 7 requirement, Yarrito needed to fairly present his claims to the Arizona Court of Appeals 8 by providing the facts underlying his claim and the federal basis of those claims. Yarrito 9 never presented his ineffective assistance of counsel claims to the Arizona Court of 10 Appeals and, therefore, he did not exhaust any of the claims in his Petition. 11 In addition, Yarrito’s claims are now subject to an implied procedural bar because 12 his claims were not fairly presented in state court and no state remedies remain available 13 to him because he is now precluded or time-barred from raising his claims in a successive 14 and untimely Rule 32 petition under Arizona Rules of Criminal Procedure 32.1(d)-(h), 15 32.2(a) & (b), or 32.4(a). 16 Yarrito has not demonstrated either cause for the default and actual prejudice to 17 excuse the default, or a miscarriage of justice. Yarrito correctly states that his Sixth 18 Amendment claim was presented to the Arizona Court of Appeals but that claim is not 19 part of his Petition. (Doc. 15 at 5-6) He then claims that “his post-conviction 20 proceedings are equivalent to a direct appeal.” (Doc. 15 at 7:5-6) However, this Court is 21 bound by precedent that prevents making such an equivalency. Moreover, as 22 Respondents note, Yarrito cannot raise an ineffective assistance of counsel claim against 23 PCR counsel. Martinez v. Ryan, 566 U.S. 1, 16 (2012). 24 IT IS THEREFORE RECOMMENDED that Steven Yarrito’s petition for writ 25 of habeas corpus be denied and dismissed with prejudice. 26 IT IS FURTHER RECOMMENDED that a Certificate of Appealability and 27 leave to proceed in forma pauperis on appeal be denied because dismissal of the Petition 28 □□ is justified by a plain procedural bar and jurists of reason would not find the ruling 2|| debatable. 3 This recommendation is not an order that is immediately appealable to the Ninth 4}| 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. 6|| The parties shall have fourteen days from the date of service of a copy of this || recommendation within which to file specific written objections with the Court. See, 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, 9|| the parties have fourteen days within which to file a response to the objections. Failure 10 || timely to file objections to the Magistrate Judge’s Report and Recommendation may 11 || result in the acceptance of the Report and Recommendation by the district court without 12|| further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9™ Cir. 2003). 13 || Failure timely to file objections to any factual determinations of the Magistrate Judge will || be considered a waiver of a party’s right to appellate review of the findings of fact in an 15 || order or judgment entered pursuant to the Magistrate Judge’s recommendation. See Rule 72, Federal Rules of Civil Procedure. 17 Dated this 22" day of June, 2018. 18

20 ———pavidK. Duncan SSS 71 United States Magistrate Judge 22 23 24 25 26 27 28

_5-