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6 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 7 Thomas Bon Stout, 8 Petitioner CV-17-4046-PHX-GMS (JFM) -vs- 9 County of Maricopa, et al., Report & Recommendation Respondents. on Petition for Writ of Habeas Corpus 10 11 I. MATTER UNDER CONSIDERATION 12 Petitioner (presently released but incarcerated at the time in the Lower Buckeye 13 Jail in Phoenix, Arizona) filed an Amended Petition for Writ of Habeas Corpus pursuant 14 to 28 U.S.C. § 2254 on November 27, 2017 (Doc. 6). On March 6, 2018 Respondents 15 filed their Answer (Doc. 12). Petitioner filed a Reply (“Motion to Vacate Judgment”) 16 on March 23, 2018 (Doc. 14). 17 The Petitioner's Petition is now ripe for consideration. Accordingly, the 18 undersigned makes the following proposed findings of fact, report, and recommendation 19 pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules 20 of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil 21 Procedure. 22 II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND 23 A. FACTUAL BACKGROUND AND PROCEEDINGS AT TRIAL 24 On August 26, 2016, Petitioner was indicted in Maricopa County Superior Court 25 case number CR2016-5284 on one count of failure to register as a sex offender, based on 26 conduct on April 26, 2016 (failure to carry valid ID). (Exhibit A, Indictment 5284.) 27 1 13, 2016, Petitioner was indicted in Maricopa County Superior Court case number 2 CR2016-5624 on one count of failure to register as a sex offender, based on conduct on 3 July 1, 2016 (failure to register). (Exhibit B, Indictment 5624.) 4 On February 22, 2017, Petitioner entered into interconnected plea agreements in 5 both cases. He executed a written Plea Agreement (Exhibit B) in the ID case (CR2016- 6 5284), agreeing to plead guilty as charged to the Class 6 Felony, in exchange for an 7 agreement to a sentence of two years supervised probation and 12 months flat time in 8 jail, and dismissal of allegations of priors and probation. On the same date, he executed 9 a written Plea Agreement (Exhibit G) in the registration case (CR2016-5624), agreeing 10 to plead guilty as charged to the Class 4 Felony, with an agreement for a sentence of 11 lifetime supervised probation, and dismissal of allegations of priors and probation. 12 Petitioner entered his guilty pleas on the same date in both cases. (Exhibit C, M.E. 13 2/22/17 5284; Exhibit H, M.E. 2/22/17 5624; Exhibit O, R.T. 2/22/17.) 14 On March 29, 2017, a “Probation Violation Report” was filed, recommending 3 15 years probation on the ID case, with a condition of 12 months in jail, and lifetime 16 supervised probation on the registration case. (It also recommended a continuation of 17 probation in the underlying case for an additional 18 months.) 18 On March 29, 2017, Petitioner was sentenced in both cases. In the ID case, 19 sentencing was suspended and he was placed on 3 years probation, with a condition of 20 12 months in jail. (Exhibit E, Sentence 3/29/17 5284.) In the registration case, sentence 21 was also suspended, and Petitioner was placed on a concurrent term of lifetime 22 probation. (Exhibit K, Sentenced 3/29/17 5624.) 23 B. PROCEEDINGS ON DIRECT APPEAL 24 Petitioner did not file a direct appeal. (See Amended Petition, Doc. 6 at 2 25 (referencing PCR proceeding as direct appeal.) Moreover, as a pleading defendant, 26 Petitioner had no right to file a direct appeal. See Ariz.R.Crim.P. 17.1(e); and 27 1 On September 27, 2017, Petitioner filed in the Registration case (CR2016-5624) a 2 pro se Petition for Post-Conviction Relief (Exhibit L), and a third Notice of Post- 3 Conviction Relief (Exhibit M). 4 On October 9, 2017, the Court summarily dismissed the proceeding. The Court 5 concluded that Petitioner’s petition was untimely, and that such untimeliness was not 6 without fault, and thus (except for those claims under Rule 32.l(d), (e), (f), (g), or (h) 7 exempted from the timeliness requirements) subject to dismissal as untimely. The court 8 also found the challenge based on a lack of jurisdiction (Rule 32.1(b)) was without merit, 9 and that the timely claims of newly discovered and material facts (Rule 32.1(e)) and 10 innocence (Rule 32.1(h)) were not supported and without merit. The court also denied 11 the request for appointment of counsel and the record. (Exhibit N, Order 10/9/17.) 12 Petitioner did not seek further review. (Amended Pet., Doc. 6 at 5.) 13
14 D. PRESENT FEDERAL HABEAS PROCEEDINGS 15 Petition - Petitioner commenced the current case by filing his original Petition for 16 Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on November 2, 2017 (Doc. 1), 17 naming Maricopa County as the respondent. That Petition was dismissed with leave to 18 amend based on failure to name a proper respondent. (Order 11/13/17, Doc. 5.) On 19 November 27, 2017, Petitioner filed his Amended Petition (Doc. 6). Petitioner 20 challenges his conviction and sentence in the Registration case (CR2016-5624). 21 Petitioner’s Amended Petition asserts the following three grounds for relief: 22 In Ground One, Petitioner states that he was convicted in 23 Oklahoma in 1998 and his “registration is up August 11, 2017.” He claims he was no longer required to register as a sex offender as of 24 August 11, 2017, and that he “was homeless at the time these charges came about, [and he] didn’t have time to obtain a place to 25 stay and to obtain an identification.” He also states that his attorney failed to file a timely notice of appeal after being instructed to do so. 26 In Ground Two, Petitioner asserts that he received ineffective assistance of counsel. He claims that he tried to fire his 27 attorney, but the trial court said that if he did, he would have to 1 pcoonstt-ecnodnsv itchtaiot nh irse liperfo, bsuet pheisti taiottno rnfoery pfaoislte-dc otnov idcoti osno . rPeleiteift iownaesr 2 untimely. In Ground Three, Petitioner claims that he has been subjected 3 to double jeopardy because he was convicted in Oklahoma in 1998; he was only required to register as a sex offender until August 4 11, 2017; and “Maricopa County is now saying [he has] to register here when [his] registration is up as of August 11, 2017.” 5 (Order 12/7/17, Doc. 7 at 2 (emphasis added).) On screening, the Court dismissed 6 Ground One as duplicative and for failure to allege a violation of the U.S. Constitution or 7 laws or treaties of the United States. (Id. at 2-3.) The Court noted an apparent lack of 8 exhaustion of state remedies, but in light of the potential of a procedural default, declined 9 to dismiss the remainder of the Amended Petition on that basis. 10 Response - On March 6, 2018 Respondents filed their Limited Answer (Doc. 12), 11 arguing that Petitioner failed to properly exhaust his state remedies by seeking review of 12 the denial of his claims by the PCR court. Respondents argue that Petitioner is now 13 procedurally barred from seeking such review under Arizona Rule of Criminal Procedure 14 32.9(c), and from seeking relief in a new PCR proceeding under Arizona’s timeliness 15 (Rule 32.4(a)) and waiver bars (Rule 32.2(a)(2)). 16 Reply - On March 23, 2018 Petitioner filed a Reply [“Motion to Vacate 17 Indictment”] (Doc. 14). The undersigned liberally construes this pro se Reply. See See 18 Zichko v. Idaho, 247 F.3d 1015 (9th Cir. 2001). So construed, in addition to arguing the 19 merits of his claims, Petitioner argues that his procedural default was caused by trial 20 counsel’s failure to file a timely PCR notice. In support of this claim, he provides an 21 Inmate Legal Request (Exhibit R-D) showing delivery to prison officials on June 23, 22 2017 of mail directed to trial counsel which he contends requested a PCR notice be filed. 23
24 III. APPLICATION OF LAW TO FACTS 25 A. EXHAUSTION, PROCEDURAL DEFAULT AND PROCEDURAL BAR 26 Respondents argue that Petitioner’s claims are procedurally defaulted, and thus 27 1 1. Exhaustion Requirement 2 Generally, a federal court has authority to review a state prisoner’s claims only if 3 available state remedies have been exhausted. Duckworth v. Serrano, 454 U.S. 1, 3 4 (1981) (per curiam). The exhaustion doctrine, first developed in case law, has been 5 codified at 28 U.S.C. § 2254(b) and (c). When seeking habeas relief, the burden is on 6 the petitioner to show that he has properly exhausted each claim. Cartwright v. Cupp, 7 650 F.2d 1103, 1104 (9th Cir. 1981)(per curiam), cert. denied, 455 U.S. 1023 (1982). 8 9 a. Exhaustion by Fair Presentation 10 Ordinarily, to exhaust his state remedies, the petitioner must have fairly presented 11 his federal claims to the state courts. “A petitioner fairly and fully presents a claim to the 12 state court for purposes of satisfying the exhaustion requirement if he presents the claim: 13 (1) to the proper forum, (2) through the proper vehicle, and (3) by providing the proper 14 factual and legal basis for the claim.” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th 15 Cir. 2005). 16 Proper Forum - “In cases not carrying a life sentence or the death penalty, 17 ‘claims of Arizona state prisoners are exhausted for purposes of federal habeas once the 18 Arizona Court of Appeals has ruled on them.’” Castillo v. McFadden, 399 F.3d 993, 998 19 (9th Cir. 2005)(quoting Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999)). 20 Proper Vehicle - Ordinarily, “to exhaust one's state court remedies in Arizona, a 21 petitioner must first raise the claim in a direct appeal or collaterally attack his conviction 22 in a petition for post-conviction relief pursuant to Rule 32.” Roettgen v. Copeland, 33 23 F.3d 36, 38 (9th Cir. 1994). Only one of these avenues of relief must be exhausted 24 before bringing a habeas petition in federal court. This is true even where alternative 25 avenues of reviewing constitutional issues are still available in state court. Brown v. 26 Easter, 68 F.3d 1209, 1211 (9th Cir. 1995); Turner v. Compoy, 827 F.2d 526, 528 (9th 27 Cir. 1987), cert. denied, 489 U.S. 1059 (1989). 1 federal claim to the state courts as part of the same claim. A petitioner may not broaden 2 the scope of a constitutional claim in the federal courts by asserting additional operative 3 facts that have not yet been fairly presented to the state courts. Expanded claims not 4 presented in the highest state court are not considered in a federal habeas petition. 5 Brown v. Easter, 68 F.3d 1209 (9th Cir. 1995); see also, Pappageorge v. Sumner, 688 6 F.2d 1294 (9th Cir. 1982), cert. denied, 459 U.S. 1219 (1983). And, while new factual 7 allegations do not ordinarily render a claim unexhausted, a petitioner may not 8 "fundamentally alter the legal claim already considered by the state courts." Vasquez v. 9 Hillery, 474 U.S. 254, 260 (1986). 10 Legal Basis - Failure to alert the state court to the constitutional nature of the 11 claim will amount to failure to exhaust state remedies. Duncan v. Henry, 513 U.S. 364, 12 366 (1995). While the petitioner need not recite “book and verse on the federal 13 constitution,” Picard v. Connor, 404 U.S. 270, 277-78 (1971) (quoting Daugherty v. 14 Gladden, 257 F.2d 750, 758 (9th Cir. 1958)), it is not enough that all the facts necessary 15 to support the federal claim were before the state courts or that a “somewhat similar state 16 law claim was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982)(per curiam). “[T]he 17 petitioner must make the federal basis of the claim explicit either by specifying particular 18 provisions of the federal Constitution or statutes, or by citing to federal case law,” 19 Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005), or by “a citation to a state 20 case analyzing [the] federal constitutional issue." Peterson v. Lampert, 319 F.3d 1153, 21 1158 (9th Cir. 2003). But a drive-by-citation of a state case applying federal and state 22 law is not sufficient.
23 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 24 citation must be accompanied by some clear indication that the case involves federal issues. Where, as here, the citation to the state case 25 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 26 federal claim is not fairly presented. 27 Casey v. Moore, 386 F.3d 896, 912 n. 13 (9th Cir. 2004). 1 state court if that court must read beyond a petition or a brief (or a similar document) that 2 does not alert it to the presence of a federal claim in order to find material, such as a 3 lower court opinion in the case, that does so." Baldwin v. Reese, 541 U.S. 27, 32 (2004). 4 The Arizona habeas petitioner "must have presented his federal, constitutional issue 5 before the Arizona Court of Appeals within the four corners of his appellate briefing." 6 Castillo v. McFadden, 399 F.3d 993, 1000 (9th Cir. 2005). But see Insyxiengmay v. 7 Morgan, 403 F.3d 657, 668-669 (9th Cir. 2005) (arguments set out in appendix attached 8 to petition and incorporated by reference were fairly presented). 9 10 b. Exhaustion by Actual Consideration 11 Although fair presentation is the normal mode of establishing exhaustion of state 12 remedies, it is not the only method. Rather, a petitioner’s state remedies are exhausted 13 where the state courts have reached and passed on the merits of a federal claim, 14 regardless whether the petitioner had fairly presented the claim to the state court. “It is 15 reasonable to infer an exception [to the fair presentation requirement] where the State 16 has actually passed upon the claim.” Castille v. Peoples, 489 U.S. 346, 351 (1989). See 17 Greene v. Lambert, 288 F.3d 1081, 1086 (9th Cir. 2002) (“exhaustion does not require 18 repeated assertions if a federal claim is actually considered at least once on the merits by 19 the highest state court”); Sandstrom v. Butterworth, 738 F.2d 1200, 1206 (11th Cir.1984) 20 ("[t]here is no better evidence of exhaustion than a state court's actual consideration of 21 the relevant constitutional issue"); and Walton v. Caspari, 916 F.2d 1352, 1356-57 (8th 22 Cir.1990) (state court's sua sponte consideration of an issue satisfies exhaustion). 23 On the other hand, actual consideration of the claim is not required. “All 24 exhaustion requires is that the state courts have the opportunity to remedy an error, not 25 that they actually took advantage of the opportunity.” Scott v. Schriro, 567 F.3d 573, 26 583 (9th Cir. 2009). 27 / / 1 2. Procedural Default 2 Ordinarily, unexhausted claims are dismissed without prejudice. Johnson v. 3 Lewis, 929 F.2d 460, 463 (9th Cir. 1991). However, where a petitioner has failed to 4 properly exhaust his available administrative or judicial remedies, and those remedies are 5 now no longer available because of some procedural bar, the petitioner has "procedurally 6 defaulted" and is generally barred from seeking habeas relief. Dismissal with prejudice 7 of a procedurally defaulted habeas claim is generally proper absent a “miscarriage of 8 justice” which would excuse the default. Reed v. Ross, 468 U.S. 1, 11 (1984). 9 Respondents argue that Petitioner may no longer present his unexhausted claims 10 to the state courts. Respondents rely upon Arizona’s time bar on petitions for review set 11 out in Arizona Rule of Criminal Procedure 32.9, preclusion bar, set out in Rule 32.2(a) 12 and time limit bar, set out in Rule 32.4. (Answer, Doc. 12 at 14.) 13 Remedies by Direct Appeal - Under Ariz.R.Crim.P. 31.3, the time for filing a 14 direct appeal expires twenty days after entry of the judgment and sentence. Moreover, as 15 a pleading defendant, Petitioner has no right to file a direct appeal. See Ariz.R.Crim.P. 16 17.1(e); and Montgomery, 181 Ariz. at 258, 889 P.2d at 616. Accordingly, direct appeal 17 is no longer available for review of Petitioner’s unexhausted claims. 18 Remedies by Petition for Review – To the extent that Petitioner raised the 19 current claims in his PCR petition, he cannot now seek review by the Arizona Court of 20 Appeals. Arizona Rule of Criminal Procedure 32.9(c) requires petitions for review to the 21 Arizona Court of Appeals be filed within thirty days of the trial court’s decision on the 22 PCR petition. The trial court’s decision was issued October 9, 2017, and thus this 23 deadline expired on November 8, 2017. 24 Remedies by Post-Conviction Relief – Under Arizona’s preclusion, waiver and 25 timeliness bars, Petitioner can no longer seek review by a subsequent PCR Petition. 26 Preclusion Bar – Under the rules applicable to Arizona’s post-conviction process, 27 a claim may not be brought in a petition for post-conviction relief if the claim was 1 Ariz. R. Crim. P. 32.2(a)(2). Thus, Petitioner counsel not again assert any of the claims 2 he raised to the trial court in his first PCR proceeding. 3 Waiver Bar - Under the rules applicable to Arizona's post-conviction process, a 4 claim may not ordinarily be brought in a petition for post-conviction relief that "has been 5 waived at trial, on appeal, or in any previous collateral proceeding." Ariz.R.Crim.P. 6 32.2(a)(3). Under this rule, some claims may be deemed waived if the State simply 7 shows "that the defendant did not raise the error at trial, on appeal, or in a previous 8 collateral proceeding." Stewart v. Smith, 202 Ariz. 446, 449, 46 P.3d 1067, 1070 (2002) 9 (quoting Ariz.R.Crim.P. 32.2, Comments). But see State v. Diaz, 236 Ariz. 361, 340 P.3d 10 1069 (2014) (failure of PCR counsel, without fault by petitioner, to file timely petition in 11 prior PCR proceedings did not amount to waiver of claims of ineffective assistance of 12 trial counsel). 13 For others of "sufficient constitutional magnitude," the State "must show that the 14 defendant personally, ''knowingly, voluntarily and intelligently' [did] not raise' the 15 ground or denial of a right." Id. That requirement is limited to those constitutional 16 rights “that can only be waived by a defendant personally.” State v. Swoopes, 216 Ariz. 17 390, 399, 166 P.3d 945, 954 (App.Div. 2, 2007). Indeed, in coming to its prescription in 18 Stewart v. Smith, the Arizona Supreme Court identified: (1) waiver of the right to 19 counsel, (2) waiver of the right to a jury trial, and (3) waiver of the right to a twelve- 20 person jury under the Arizona Constitution, as among those rights which require a 21 personal waiver. 202 Ariz. at 450, 46 P.3d at 1071. Claims based upon ineffective 22 assistance of counsel are determined by looking at “the nature of the right allegedly 23 affected by counsel’s ineffective performance. Id. 24 Here, none of Petitioner’s claims are of the sort requiring a personal waiver, and 25 Petitioner’s claims of ineffective assistance similarly have at their core the kinds of 26 claims not within the types identified as requiring a personal waiver. 27 Thus, to the extent Petitioner’s current claims were not raised in his first PCR 1 Timeliness Bar - Even if not barred by preclusion, Petitioner would now be barred 2 from raising his claims by Arizona’s time bars. Ariz.R.Crim.P. 32.4 requires that 3 petitions for post-conviction relief (other than those which are “of-right”) be filed 4 “within ninety days after the entry of judgment and sentence or within thirty days after 5 the issuance of the order and mandate in the direct appeal, whichever is the later.” See 6 State v. Pruett, 185 Ariz. 128, 912 P.2d 1357 (App. 1995) (applying 32.4 to successive 7 petition, and noting that first petition of pleading defendant deemed direct appeal for 8 purposes of the rule). That time has long since passed. 9 Exceptions - Rules 32.2 and 32.4(a) do not bar dilatory claims if they fall within 10 the category of claims specified in Ariz.R.Crim.P. 32.1(d) through (h). See Ariz. R. 11 Crim. P. 32.2(b) (exceptions to preclusion bar); Ariz. R. Crim. P. 32.4(a) (exceptions to 12 timeliness bar). Petitioner has not asserted that any of these exceptions are applicable to 13 his claims. Nor does it appears that such exceptions would apply. The rule defines the 14 excepted claims as follows:
15 d. The person is being held in custody after the sentence imposed has expired; 16 e. Newly discovered material facts probably exist and such facts probably would have changed the verdict or sentence. Newly 17 discovered material facts exist if: (1) The newly discovered material facts were 18 discovered after the trial. (2) The defendant exercised due diligence in securing 19 the newly discovered material facts. (3) The newly discovered material facts are not 20 merely cumulative or used solely for impeachment, unless the impeachment evidence substantially undermines testimony which 21 was of critical significance at trial such that the evidence probably would have changed the verdict or sentence. 22 f. The defendant's failure to file a notice of post-conviction relief of-right or notice of appeal within the prescribed time was 23 without fault on the defendant's part; or g. There has been a significant change in the law that if 24 determined to apply to defendant's case would probably overturn the defendant's conviction or sentence; or 25 h. The defendant demonstrates by clear and convincing evidence that the facts underlying the claim would be sufficient to 26 establish that no reasonable fact-finder would have found defendant guilty of the underlying offense beyond a reasonable doubt, or that 27 the court would not have imposed the death penalty. 1 Paragraph 32.1 (d) (expired sentence) generally has no application to an Arizona 2 prisoner who is simply attacking the validity of his conviction or sentence. Where a 3 claim is based on "newly discovered evidence" that has previously been presented to the 4 state courts, the evidence is no longer "newly discovered" and paragraph (e) has no 5 application. Here, Petitioner has long ago asserted the facts underlying his claims. 6 Petitioner’s allegations under Paragraph (f) (untimely notice) have already been 7 addressed in the state court, and thus could not be again raised. Paragraph (g) has no 8 application because Petitioner has not asserted a change in the law since his last PCR 9 proceeding. Finally, paragraph (h), concerning claims of actual innocence, has no 10 application to the procedural claims Petitioner asserts in this proceeding. 11 Therefore, none of the exceptions apply, and Arizona’s time and waiver bars 12 would prevent Petitioner from returning to state court. Thus, Petitioner’s unexhausted 13 claims are now procedurally defaulted. 14 15 3. Procedural Bar on Independent and Adequate State Grounds 16 Related to the concept of procedural default is the principle of barring claims 17 actually disposed of by the state courts on state grounds. “[A]bsent showings of ‘cause’ 18 and ‘prejudice,’ federal habeas relief will be unavailable when (1) ‘a state court [has] 19 declined to address a prisoner's federal claims because the prisoner had failed to meet a 20 state procedural requirement,’ and (2) ‘the state judgment rests on independent and 21 adequate state procedural grounds.’ ” Walker v. Martin, 562 U.S. 307, 316 (2011). 22 In Bennett v. Mueller, 322 F.3d 573 (9th Cir.2003), the Ninth Circuit addressed 23 the burden of proving the independence and adequacy of a state procedural bar.
24 Once the state has adequately pled the existence of an independent and adequate state procedural ground as an affirmative defense, the 25 burden to place that defense in issue shifts to the petitioner. The petitioner may satisfy this burden by asserting specific factual 26 allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent 27 application of the rule. Once having done so, however, the ultimate 1 Id. at 584-585. 2 Here, the PCR court rejected as untimely Petitioner’s ineffective assistance and 3 double jeopardy claims. (Exhibit N, Order 10/9/17 at 2-3.) 4 Petitioner fails to proffer anything to suggest that Rule 32.4 is not an independent 5 and adequate state ground, sufficient to bar federal habeas review of claims a defendant 6 could have but did not raise on direct appeal. The district courts in Arizona have held 7 that it is. See e.g. Morgal v. Ryan, 2013 WL 655122, at *16 (D. Ariz. Jan. 18, 2013) 8 report and recommendation adopted, 2013 WL 645960 (D. Ariz. Feb. 21, 2013). 9 Thus, to the extent that Petitioner may have fairly presented to the PCR court the 10 ineffective assistance and double jeopardy claims he now raises, those claims were 11 procedurally barred on independent and adequate state grounds. 12 13 4. Application to Petitioner’s Claims 14 Here, the PCR court found that Petitioner’s PCR petition raised claims similar to 15 those in Grounds Two and Three. For example, the court found he asserted a claim of 16 ineffective assistance, and a violation of double jeopardy. (Exhibit N, Order 3/6/18, at 17 2.) However, Petitioner’s assertion of a claim of ineffective assistance of counsel was 18 limited to checking the box for such claims on his PCR notice. (See Exhibit M, PCR 19 Not. at 2, ¶ 5(B).) His assertion of a double jeopardy claim was limited to checking the 20 box asserting “[v]iolation of the right not be placed twice in jeopardy for the same 21 offense.” (See Exhibit L, PCR Pet. at 2.) There is good reason to doubt that Petitioner 22 managed to adequately raise the facts underlying those claims, or that Petitioner 23 adequately asserted them as federal claims, in light of his summary assertion of the 24 claims. 25 Nonetheless, whether the claims now raised were fairly presented to the PCR 26 court, this habeas court may not reach them. 27 For claims Petitioner raised to the PCR court, his claims were either procedurally 1 Petitioner’s failure to timely seek review by the Arizona Court of Appeals. To the extent 2 that the claims were not presented in that PCR proceeding, they are now procedurally 3 defaulted under Arizona’s waiver and time bars. 4 5 5. Cause and Prejudice 6 If the habeas petitioner has procedurally defaulted on a claim, or it has been 7 procedurally barred on independent and adequate state grounds, he may not obtain 8 federal habeas review of that claim absent a showing of “cause and prejudice” sufficient 9 to excuse the default. Reed v. Ross, 468 U.S. 1, 11 (1984). 10 "Cause" is the legitimate excuse for the default. Thomas v. Lewis, 945 F.2d 1119, 11 1123 (1991). "Because of the wide variety of contexts in which a procedural default can 12 occur, the Supreme Court 'has not given the term "cause" precise content.'" Harmon v. 13 Barton, 894 F.2d 1268, 1274 (11th Cir. 1990) (quoting Reed, 468 U.S. at 13), cert. 14 denied, 498 U.S. 832 (1990). The Supreme Court has suggested, however, that cause 15 should ordinarily turn on some objective factor external to petitioner, for instance:
16 ... a showing that the factual or legal basis for a claim was not reasonably available to counsel, or that "some interference by 17 officials", made compliance impracticable, would constitute cause under this standard. 18 Murray v. Carrier, 477 U.S. 478, 488 (1986) (citations omitted). 19 Petitioner argues that this Court should find cause to excuse his procedural 20 defaults based on his untrained status and the ineffective assistance of trial counsel in 21 failing to file a timely PCR notice. 22 Pro Se Status - The “cause and prejudice” standard is equally applicable to pro se 23 litigants, Harmon v. Barton, 894 F.2d 1268, 1274 (11th Cir. 1990); Hughes v. Idaho 24 State Board of Corrections, 800 F.2d 905, 908 (9th Cir. 1986), whether literate and 25 assisted by “jailhouse lawyers”, Tacho, 862 F.2d at 1381; illiterate and unaided, Hughes, 26 800 F.2d at 909, or non-English speaking. Vasquez v. Lockhart, 867 F.2d 1056, 1058 27 1 legal training or prowess would not constitute cause to excuse his failures to properly 2 exhaust. 3 Ineffective Assistance of Trial Counsel – Petitioner alleges that his procedural 4 default should be excused because it resulted from trial counsel’s failure to timely follow 5 his instruction (purportedly mailed June 23, 2017) to file a PCR notice. To the extent 6 that this Court could conclude that counsel had an obligation to do so based on his status 7 as trial counsel, Petitioner’s failure to exhaust his state remedies on this assertion (by 8 presenting it to the Arizona Court of Appeals), precludes this Court from relying on it. 9 “To constitute cause for procedural default of a federal habeas claim, the constitutional 10 claim of ineffective assistance of counsel must first have been presented to the state 11 courts as an independent claim.” Cockett v. Ray, 333 F.3d 938, 943 (9th Cir. 2003). 12 Ineffective Assistance of Appellate Counsel – Because Petitioner had nor right 13 to a traditional direct appeal, but rather his of-right PCR proceeding functioned as a 14 direct appeal, it might be argued that in failing to file Petitioner’s PCR Notice, trial 15 counsel was serving as the functional equivalent of constitutionally required appellate 16 counsel. In such event, however, Petitioner’s failure to exhaust a claim of ineffective 17 assistance of appellate counsel precludes him from relying upon such ineffectiveness as 18 cause to excuse his procedural defaults. Cockett, supra. 19 Ineffective Assistance of PCR Counsel – To the extent that Petitioner contends 20 that counsel was function in a capacity as PCR counsel, any ineffectiveness in failing to 21 file a PCR notice would not be subject to the exhaustion requirement. The Ninth Circuit 22 has observed that “there seems to be no requirement that the claim of ineffective 23 assistance of PCR counsel as cause for an ineffective-assistance-of-sentencing-counsel 24 claim be presented to the state courts.” Dickens v. Ryan, 740 F.3d 1302, 1322, n.17 (9th 25 Cir. 2014). However, the only claims for which ineffective assistance of PCR counsel 26 can establish cause are claims of ineffective assistance of trial counsel. Davila v. Davis, 27 582 U.S. ____ (6/26/17). Accordingly, any ineffectiveness of PCR counsel would not 1 Moreover, Petitioner fails to proffer anything to show that his trial counsel was 2 actually serving as PCR counsel. The PCR court rejected Petitioner’s attempts to rely 3 on trial counsel by observing:
4 The "Inmate Legal Request" attached to the Petition, stamped "Received" on June 23, 2017, asks for mail to be sent to counsel. 5 Defendant's actual communication to counsel is not provided; instead, he attaches a letter dated September 16, 2017. Defendant 6 concedes that he received "no response from counsel" and thus had no basis to rely upon counsel to undertake the filing. (Petition at 2) 7 The Court finds that Defendant fails to supply an adequate factual or legal basis for relief under the rule. Even assuming that the June 23, 8 2017 request was aimed at obtaining assistance with a Rule 32 proceeding, Defendant is at fault for delaying the request until days 9 before the June 27, 2017 deadline. The "Notice of Rights of Review After Conviction and Procedure" form Defendant received at 10 sentencing clearly states that a Notice of Post-Conviction Relief must be filed within 90 days. 11 (Exhibit N, Order 10/9/17 at 2.) Petitioner provides no basis on which this Court could 12 conclude to the contrary that trial counsel had agreed to or was obligated to represent 13 Petitioner in his PCR proceeding, or that Petitioner was otherwise entitled to rely upon 14 trial counsel to file his PCR notice. Cf. State v. Hernandez, 2016 WL 2909248, at *2 15 (App. May 18, 2016) (unpublished decision) (“by filing the motion seeking leave to file 16 an untimely notice of post-conviction relief limited to the issue of restitution, trial 17 counsel was at least arguably acting as Hernandez's Rule 32 counsel”). 18 Moreover, it was not only by virtue of Petitioner’s failure to timely file his PCR 19 notice with the trial court that his claims are barred from habeas review, but because of 20 Petitioner’s failure to subsequently seek review by the Arizona Court of Appeals (if they 21 were fairly raised in to the PCR court), or his failure to fairly raise them in his first PCR 22 proceeding (if not fairly raised to the PCR court). 23 Summary re Cause and Prejudice – Based upon the foregoing, the undersigned 24 concludes that Petitioner has failed to establish cause to excuse his procedural defaults. 25 Both "cause" and "prejudice" must be shown to excuse a procedural default, 26 although a court need not examine the existence of prejudice if the petitioner fails to 27 1 F.2d 1119, 1123 n. 10 (9th Cir.1991). Petitioner has filed to establish cause for his 2 procedural default. Accordingly, this Court need not examine the merits of Petitioner's 3 claims or the purported "prejudice" to find an absence of cause and prejudice. 4 5 6. Actual Innocence 6 The standard for “cause and prejudice” is one of discretion intended to be flexible 7 and yielding to exceptional circumstances, to avoid a “miscarriage of justice.” Hughes v. 8 Idaho State Board of Corrections, 800 F.2d 905, 909 (9th Cir. 1986). Accordingly, 9 failure to establish cause may be excused “in an extraordinary case, where a 10 constitutional violation has probably resulted in the conviction of one who is actually 11 innocent.” Murray v. Carrier, 477 U.S. 478, 496 (1986) (emphasis added). Although 12 not explicitly limited to actual innocence claims, the Supreme Court has not yet 13 recognized a "miscarriage of justice" exception to exhaustion outside of actual 14 innocence. See Hertz & Lieberman, Federal Habeas Corpus Pract. & Proc. §26.4 at 15 1229, n. 6 (4th ed. 2002 Cumm. Supp.). The Ninth Circuit has expressly limited it to 16 claims of actual innocence. Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir. 2008). 17 A petitioner asserting his actual innocence of the underlying crime must show "it 18 is more likely than not that no reasonable juror would have convicted him in the light of 19 the new evidence" presented in his habeas petition. Schlup v. Delo, 513 U.S. 298, 327 20 (1995). A showing that a reasonable doubt exists in the light of the new evidence is not 21 sufficient. Rather, the petitioner must show that no reasonable juror would have found 22 the defendant guilty. Id. at 329. This standard is referred to as the “Schlup 23 gateway.” Gandarela v. Johnson, 286 F.3d 1080, 1086 (9th Cir. 2002). 24 Moreover, to pass through the Schlup gateway, not just any evidence of innocence 25 will do; the petitioner must present “new reliable evidence—whether it be exculpatory 26 scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that 27 was not presented at trial.” Schlup, 513 U.S. at 324. 1 the court to register as a sex offender in the underlying Oklahoma conviction, but by an 2 unlawful order of the Oklahoma Department of Corrections. (Reply, Doc. 14 at 5.) He 3 argues that he discovered the lack of a court order to register “while incarcerated at the 4 Lower Buckeye Jail.” 5 Petitioner’s argument is based upon a misunderstanding of the applicable Arizona 6 statute. Petitioner was convicted in each case of violating, in pertinent part, Arizona 7 Revised Statute § 13-3821. (See Exhibit E, Sentence 5284; Exhibit K, Sentence 5624.) 8 That statute does not require a pre-existing court order for registration. Rather, it 9 requires registration if one of three scenarios applies: (a) the defendant “has been 10 convicted of” specified Arizona offenses; (b) the defendant “has been convicted of …an 11 offense committed in another jurisdiction that if committed in this state would be a 12 violation” of the specified Arizona offenses; or (c) the defendant “is required to register 13 by the convicting or adjudicating jurisdiction.” Because Petitioner’s underlying 14 conviction arose in Oklahoma, the latter two provisions would apply, and neither 15 mandates a court order for registration. 16 Petitioner makes no assertion that his Oklahoma conviction was of such a nature 17 that it would not qualify under the provisions of § 13-3821. According to the Probation 18 Violation Report, Petitioner’s underlying conviction involved sexual conduct with a 19 minor: “Mr. Stout's original sex offense involved him, at twenty years old, providing 20 alcohol to a fourteen-year old female, then she performed oral sex on him.” (Exhibit I at 21 5.) Petitioner proffers no explanation why that offense would not qualify him under the 22 “offense committed in another jurisdiction” portion of § 13-3821. See e.g. Ariz. Rev. 23 Stat. § 13-3821(A)(4) (identifying as a qualifying offense “[s]exual conduct with a minor 24 pursuant to § 13-1405”); and Ariz. Rev. Stat. § 13-1405(A) (“A person commits sexual 25 conduct with a minor by intentionally or knowingly engaging in sexual intercourse or 26 oral sexual contact with any person who is under eighteen years of age.”). 27 Moreover, the Oklahoma statutes do not appear to require a court order for 1 is sufficient. See Okla. Stat. Ann. tit. 57, § 582 (applying Oklahoma’s Sex Registration 2 Act to those “convicted of” specified offenses, or convicted of offenses in another state 3 which if committed in Oklahoma would be one of those offenses). 4 Because Petitioner fails to show that a court order for registration was an element 5 of his offense, Petitioner fails to make a showing that (based upon the lack of an order of 6 registration from the Oklahoma courts) no reasonable juror could have found him guilty. 7 Petitioner also argues that his registration requirement under Oklahoma law 8 expired on August 11, 2017. (Reply, Doc. 14 at 3.) But Petitioner acknowledges that 9 this did not occur until “five months following sentencing.” Thus, even if it were 10 assumed that Petitioner is now no longer required to register under Oklahoma law, that 11 would not render him innocent of his having failed to register at the times of his offenses 12 in this case. Moreover, as discussed above, the application of the Arizona registration 13 requirement does not require the existence of an Oklahoma registration requirement, 14 merely the existence of the qualifying Oklahoma conviction. Therefore, Petitioner fails 15 to show how expiration of the Oklahoma registration requirement renders him actually 16 innocent. 17 B. SUMMARY 18 Petitioner failed to properly exhaust his state remedies on any claims by failing to 19 seek review by the Arizona Court of Appeals, was procedurally barred on independent 20 and adequate state grounds of untimeliness on the claims he did raise, and has 21 procedurally defaulted his remedies on any claims he did not raise. Petitioner fails to 22 show cause and prejudice or actual innocence to avoid the effects of his procedural bar 23 and/or procedural default. Accordingly, Petitioner’s Petition must be dismissed with 24 prejudice. 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. 1 IT IS THEREFORE RECOMMENDED that the Petitioner's Amended Petition 2 for Writ of Habeas Corpus, filed November 27, 2017 (Doc. 6) be DISMISSED WITH 3 PREJUDICE. 4
5 IT IS FURTHER RECOMMENDED that, to the extent the foregoing findings 6 and recommendations are adopted in the District Court’s order, a Certificate of 7 Appealability be DENIED. 8
9 VI. EFFECT OF RECOMMENDATION 10 This recommendation is not an order that is immediately appealable to the Ninth 11 Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules 12 of Appellate Procedure, should not be filed until entry of the district court's judgment. 13 However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties 14 shall have fourteen (14) days from the date of service of a copy of this recommendation 15 within which to file specific written objections with the Court. See also Rule 8(b), Rules 16 Governing Section 2254 Proceedings. Thereafter, the parties have fourteen (14) days 17 within which to file a response to the objections. Failure to timely file objections to any 18 findings or recommendations of the Magistrate Judge will be considered a waiver of a 19 party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 20 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's 21 right to appellate review of the findings of fact in an order or judgment entered pursuant 22 to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146- 23 47 (9th Cir. 2007). 24 / / 25 / / 26 / / 27 1 In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that 2|| “[uJnless otherwise permitted by the Court, an objection to a Report and 3|| Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.” Dated: April 24, 2018 (A016 18 04 16 on HC oes United States Magistrate Judge 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28