1 WO 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE DISTRICT OF ARIZONA 7 Jonathan David Zielbauer, ) CV 24-00512-TUC-JAS (MAA) 8 ) Petitioner, ) REPORT AND RECOMMENDATION 9 ) vs. ) 10 ) Ryan Thornell; et al., ) 11 ) Respondents. ) 12 ) ) 13 Pending before the court is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 14 2254, filed on October 18, 2024, by Jonathan Zielbauer. Doc. 1. Zielbauer is currently 15 incarcerated in the Arizona State Prison Complex in Tucson, Arizona. Id., p. 1. 16 Pursuant to the Local Rules of Practice, this matter was referred to the Magistrate Judge 17 for a report and recommendation. Doc. 9. 18 The Magistrate Judge recommends that the District Court, after its independent review 19 of the record, enter an order dismissing the petition. Zielbauer’s claims were not properly 20 exhausted and are now procedurally defaulted. 21 22 Summary of the Case 23 Zielbauer was convicted after a guilty plea to trafficking in stolen property and two 24 counts of forgery in case No. CR20191708-001 (“*708”). Doc. 12, p. 1; Doc. 12-1, pp. 12-13. 25 On June 25, 2020, the trial court suspended the imposition of sentence and placed Zielbauer on 26 probation for three concurrent three-year terms. Id.; Doc. 12-1, pp. 15-18. The trial court 27 further imposed a restitution award of $6,117.00. Doc. 12-1, p. 17. On March 8, 2023, the trial 28 1 court extended Zielbauer’s probation for an additional five years “to allow him additional time 2 to pay the restitution amount.” Doc. 12-1, pp. 20-23. 3 On December 12, 2023, the trial court revoked Zielbauer’s probation and issued a 4 warrant for his arrest. Doc. 12-1, p. 28. The petition for revocation alleged that Zielbauer 5 violated the terms of his probation by, among other things, committing organized retail theft. 6 Doc. 12-1, p. 26. 7 Zielbauer was subsequently charged in case No. CR20240492-001 (“*0492”) with 8 unlawful flight from a law enforcement vehicle and aggravated assault on a peace officer. Doc. 9 12, p. 2. Zielbauer was also charged with three counts of organized retail theft in case No. 10 CR20240494-001 (“*0494”). Doc. 12, p. 2. 11 On March 19, 2024, Zielbauer pleaded guilty to two counts of attempted organized retail 12 theft in case *0494 and one count of unlawful flight from a law enforcement vehicle in case 13 *0492. Doc. 12-1, p. 34. The trial court found that Zielbauer was in violation of his conditions 14 of probation in case *708. Doc. 12-1, p. 35. 15 On April 18, 2024, the trial court imposed concurrent sentences, the longest of which 16 was 4 years, for the probation violations in case *704. Doc. 12-1, pp. 49-53. In case *0424 and 17 case *0492, the trial court imposed sentences of 1.5 years to run concurrently with each other 18 but consecutively with the sentences for the probation violations. Id. 19 Zielbauer filed a notice of post-conviction relief on April 29, 2024 in all three cases, 20 *708, *0492, and *0494. Doc. 12-1, pp. 57, 64, 71. Appointed counsel notified the court that 21 she was unable to find any colorable issues and asked that Zielbauer be permitted to file a 22 petition pro per. Doc. 12-1, pp. 81-92. Zielbauer filed a petition on October 17, 2024 in cases 23 *708 and *0492. Doc. 12-1, pp. 97-102, 106. He argued his plea was unconstitutional because 24 counsel was ineffective and double jeopardy was violated, among other things. Doc. 12-1, pp. 25 97-102. On November 20, 2024, the trial court denied the petition finding no “material issue 26 of fact or law which would entitle Petitioner to Post-Conviction Relief.” Doc. 12-1, p. 106. 27 28 1 On December 31, 2024, Zielbauer filed successive petitions for post-conviction relief. 2 Doc. 12-1, p. 116. The trial court summarily dismissed the successive petitions on January 16, 3 2025. Doc. 12-1, p. 116. 4 On February 5, 2025, Zielbauer filed successive petitions for post-conviction relief under 5 Rule 33. Doc. 12-1, pp. 119, 128. The trial court summarily dismissed the successive petitions 6 on February 11, 2025. Doc. 12-1, p. 128. 7 Previously, on October 18, 2024, Zielbauer filed in this court the pending petition for 8 writ of habeas corpus. Doc. 1. He claims that (1) trial counsel was ineffective for (a) failing 9 to tell him that his failure to pay restitution could result in his probation being extended for five 10 years or in his incarceration and for (b) failing to present mitigating factors. Id. He also argues 11 that (2) the laws have changed and restitution is no longer a criminal matter. Id. He states that 12 the petition addresses cases *708, *0492, and *0494, but the claims appear to relate only to the 13 probation case, *708. Id. 14 The respondents filed an answer on April 22, 2025. Doc. 12. They argue, among other 15 things, that Zielbauer’s claims are procedurally defaulted. Doc. 12, pp 9-10. The court agrees. 16 The court does not reach the respondents’ alternate arguments. Zielbauer did not file a reply 17 brief. See Doc. 9. 18 19 Standard of Review 20 The writ of habeas corpus affords relief to persons in custody in violation of the 21 Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). If the petitioner is 22 in custody pursuant to the judgment of a state court, the writ will not be granted unless prior 23 adjudication of the claim – 24 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme 25 Court of the United States; or 26 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 27 28 U.S.C. § 2254(d). 28 1 Federal habeas review is limited to those claims for which the petitioner has already 2 sought redress in the State courts. This so-called “exhaustion rule” reads in pertinent part as 3 follows: 4 An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears 5 that – (A) the applicant has exhausted the remedies available in the courts of the State. . . . 6 28 U.S.C. § 2254(b)(1)(A). 7 If the petitioner is in custody pursuant to a judgment imposed by the State of Arizona, 8 he must present his claims to the Arizona Court of Appeals for review, which is the highest 9 “available” State court. Castillo v. McFadden, 399 F.3d 993, 998 (9th Cir. 2005), cert. denied, 10 546 U.S. 818 (2005); Swoopes v. Sublett, 196 F.3d 1008 (9th Cir. 1999), cert. denied, 529 U.S. 11 1124 (2000). If State remedies have not been properly exhausted, the petition may not be 12 granted and ordinarily should be dismissed without prejudice. See Johnson v. Lewis, 929 F.2d 13 460, 463 (9th Cir. 1991). In the alternative, the court has the authority to deny on the merits 14 rather than dismiss for failure to properly exhaust. 28 U.S.C. § 2254(b)(2). 15 A claim is “procedurally defaulted” if the State court declined to address the claim on 16 the merits for procedural reasons. Franklin v.
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1 WO 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE DISTRICT OF ARIZONA 7 Jonathan David Zielbauer, ) CV 24-00512-TUC-JAS (MAA) 8 ) Petitioner, ) REPORT AND RECOMMENDATION 9 ) vs. ) 10 ) Ryan Thornell; et al., ) 11 ) Respondents. ) 12 ) ) 13 Pending before the court is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 14 2254, filed on October 18, 2024, by Jonathan Zielbauer. Doc. 1. Zielbauer is currently 15 incarcerated in the Arizona State Prison Complex in Tucson, Arizona. Id., p. 1. 16 Pursuant to the Local Rules of Practice, this matter was referred to the Magistrate Judge 17 for a report and recommendation. Doc. 9. 18 The Magistrate Judge recommends that the District Court, after its independent review 19 of the record, enter an order dismissing the petition. Zielbauer’s claims were not properly 20 exhausted and are now procedurally defaulted. 21 22 Summary of the Case 23 Zielbauer was convicted after a guilty plea to trafficking in stolen property and two 24 counts of forgery in case No. CR20191708-001 (“*708”). Doc. 12, p. 1; Doc. 12-1, pp. 12-13. 25 On June 25, 2020, the trial court suspended the imposition of sentence and placed Zielbauer on 26 probation for three concurrent three-year terms. Id.; Doc. 12-1, pp. 15-18. The trial court 27 further imposed a restitution award of $6,117.00. Doc. 12-1, p. 17. On March 8, 2023, the trial 28 1 court extended Zielbauer’s probation for an additional five years “to allow him additional time 2 to pay the restitution amount.” Doc. 12-1, pp. 20-23. 3 On December 12, 2023, the trial court revoked Zielbauer’s probation and issued a 4 warrant for his arrest. Doc. 12-1, p. 28. The petition for revocation alleged that Zielbauer 5 violated the terms of his probation by, among other things, committing organized retail theft. 6 Doc. 12-1, p. 26. 7 Zielbauer was subsequently charged in case No. CR20240492-001 (“*0492”) with 8 unlawful flight from a law enforcement vehicle and aggravated assault on a peace officer. Doc. 9 12, p. 2. Zielbauer was also charged with three counts of organized retail theft in case No. 10 CR20240494-001 (“*0494”). Doc. 12, p. 2. 11 On March 19, 2024, Zielbauer pleaded guilty to two counts of attempted organized retail 12 theft in case *0494 and one count of unlawful flight from a law enforcement vehicle in case 13 *0492. Doc. 12-1, p. 34. The trial court found that Zielbauer was in violation of his conditions 14 of probation in case *708. Doc. 12-1, p. 35. 15 On April 18, 2024, the trial court imposed concurrent sentences, the longest of which 16 was 4 years, for the probation violations in case *704. Doc. 12-1, pp. 49-53. In case *0424 and 17 case *0492, the trial court imposed sentences of 1.5 years to run concurrently with each other 18 but consecutively with the sentences for the probation violations. Id. 19 Zielbauer filed a notice of post-conviction relief on April 29, 2024 in all three cases, 20 *708, *0492, and *0494. Doc. 12-1, pp. 57, 64, 71. Appointed counsel notified the court that 21 she was unable to find any colorable issues and asked that Zielbauer be permitted to file a 22 petition pro per. Doc. 12-1, pp. 81-92. Zielbauer filed a petition on October 17, 2024 in cases 23 *708 and *0492. Doc. 12-1, pp. 97-102, 106. He argued his plea was unconstitutional because 24 counsel was ineffective and double jeopardy was violated, among other things. Doc. 12-1, pp. 25 97-102. On November 20, 2024, the trial court denied the petition finding no “material issue 26 of fact or law which would entitle Petitioner to Post-Conviction Relief.” Doc. 12-1, p. 106. 27 28 1 On December 31, 2024, Zielbauer filed successive petitions for post-conviction relief. 2 Doc. 12-1, p. 116. The trial court summarily dismissed the successive petitions on January 16, 3 2025. Doc. 12-1, p. 116. 4 On February 5, 2025, Zielbauer filed successive petitions for post-conviction relief under 5 Rule 33. Doc. 12-1, pp. 119, 128. The trial court summarily dismissed the successive petitions 6 on February 11, 2025. Doc. 12-1, p. 128. 7 Previously, on October 18, 2024, Zielbauer filed in this court the pending petition for 8 writ of habeas corpus. Doc. 1. He claims that (1) trial counsel was ineffective for (a) failing 9 to tell him that his failure to pay restitution could result in his probation being extended for five 10 years or in his incarceration and for (b) failing to present mitigating factors. Id. He also argues 11 that (2) the laws have changed and restitution is no longer a criminal matter. Id. He states that 12 the petition addresses cases *708, *0492, and *0494, but the claims appear to relate only to the 13 probation case, *708. Id. 14 The respondents filed an answer on April 22, 2025. Doc. 12. They argue, among other 15 things, that Zielbauer’s claims are procedurally defaulted. Doc. 12, pp 9-10. The court agrees. 16 The court does not reach the respondents’ alternate arguments. Zielbauer did not file a reply 17 brief. See Doc. 9. 18 19 Standard of Review 20 The writ of habeas corpus affords relief to persons in custody in violation of the 21 Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). If the petitioner is 22 in custody pursuant to the judgment of a state court, the writ will not be granted unless prior 23 adjudication of the claim – 24 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme 25 Court of the United States; or 26 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 27 28 U.S.C. § 2254(d). 28 1 Federal habeas review is limited to those claims for which the petitioner has already 2 sought redress in the State courts. This so-called “exhaustion rule” reads in pertinent part as 3 follows: 4 An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears 5 that – (A) the applicant has exhausted the remedies available in the courts of the State. . . . 6 28 U.S.C. § 2254(b)(1)(A). 7 If the petitioner is in custody pursuant to a judgment imposed by the State of Arizona, 8 he must present his claims to the Arizona Court of Appeals for review, which is the highest 9 “available” State court. Castillo v. McFadden, 399 F.3d 993, 998 (9th Cir. 2005), cert. denied, 10 546 U.S. 818 (2005); Swoopes v. Sublett, 196 F.3d 1008 (9th Cir. 1999), cert. denied, 529 U.S. 11 1124 (2000). If State remedies have not been properly exhausted, the petition may not be 12 granted and ordinarily should be dismissed without prejudice. See Johnson v. Lewis, 929 F.2d 13 460, 463 (9th Cir. 1991). In the alternative, the court has the authority to deny on the merits 14 rather than dismiss for failure to properly exhaust. 28 U.S.C. § 2254(b)(2). 15 A claim is “procedurally defaulted” if the State court declined to address the claim on 16 the merits for procedural reasons. Franklin v. Johnson, 290 F.3d 1223, 1230 (9th Cir. 2002). 17 Procedural default also occurs if the claim was not presented to the State court and it is clear 18 the State would raise a procedural bar if it were presented now. Id. 19 The procedural default rule bars consideration of the petitioner’s habeas claim if the State 20 procedural rule is “independent and adequate.” Bennett v. Mueller, 322 F.3d 573, 580-583 (9th 21 Cir. 2003). The rule must be independent of federal law and must be “well-established and 22 consistently applied.” Id. 23 Procedural default may be excused if “the prisoner can demonstrate cause for the default 24 and actual prejudice as a result of the alleged violation of federal law, or demonstrate that 25 failure to consider the claims will result in a fundamental miscarriage of justice.” Hanson v. 26 Mahoney, 433 F.3d 1107, 1114 (9th Cir. 2006). “To qualify for the fundamental miscarriage of 27 justice exception to the procedural default rule, however, [the petitioner] must show that a 28 1 constitutional violation has probably resulted in the conviction when he was actually innocent 2 of the offense.” Cook v. Schriro, 538 F.3d 1000, 1028 (9th Cir. 2008). 3 If a claim is procedurally defaulted and is not excused, the claim should be dismissed 4 with prejudice because the claim was not properly exhausted and “the petitioner has no further 5 recourse in State court.” Franklin, 290 F.3d at 1231. 6 7 Discussion 8 In the pending petition, Zielbauer claims that trial counsel was ineffective and the law 9 of restitution has changed. Doc. 1. The court assumes without deciding that he raised these 10 claims in the post-conviction relief (“PCR”) petition that he filed with the trial court. Petition, 11 Doc. 12-1, p. 100. Zielbauer did not, however, raise these claims in a petition for review before 12 the Arizona Court of Appeals. Doc. 12, p. 3; see also Doc.12-1, pp. 106-107 (trial court order 13 dismissing the PCR petition). Accordingly, these claims were not properly exhausted. See 14 Castillo v. McFadden, 399 F.3d 993, 998 (9th Cir. 2005), cert. denied, 546 U.S. 818 (2005). 15 He cannot file a petition for review now. See Ariz.R.Crim.P. 32.16 (time for filing). 16 Moreover, he cannot raise the issues in a subsequent post-conviction relief petition. See 17 Ariz.R.Crim.P. 32.2 (preclusion of remedy), 32.4(b)(3) (time for filing); see also Doc. 12, p. 10. 18 These claims are procedurally defaulted and should be denied with prejudice. See Franklin v. 19 Johnson, 290 F.3d 1223, 1230 (9th Cir. 2002); Doc. 12, pp 9-10. Zielbauer did not file a reply 20 arguing that the default should be excused. See Hanson v. Mahoney, 433 F.3d 1107, 1114 (9th 21 Cir. 2006). 22 In his petition, Zielbauer states that he presented his issues to the Arizona Court of 23 Appeals in his “Direct appeal,” which he asserts that he filed on April 29, 2024. Doc. 1, pp. 2, 24 4. That filing, however, was not a direct appeal. That was Zielbauer’s of-right Rule 33 post- 25 conviction relief notice, which was filed with the trial court. Doc. 12-1, pp. 57, 64, 71. His pro 26 per petition was denied by the trial court on November 20, 2024. Doc. 12, pp. 2-3. He did not 27 file a petition for review with the Arizona Court of Appeals from the trial court’s denial. Id. 28 1 RECOMMENDATION 2 The Magistrate Judge recommends that the District Court, after its independent review 3 |] of the record, enter an order Dismissing the petition for writ of habeas corpus. Doc. 1. 4 || Zielbauer’s claims are procedurally defaulted. 5 Pursuant to 28 U.S.C. §636 (b), any party may serve and file written objections within 6 || 14 days of being served with a copy of this report and recommendation. If objections are not 7 |j timely filed, they may be deemed waived. The Local Rules permit a response to an objection. g || They do not permit a reply to a response without permission from the District Court. 9 10 DATED this 3 day of June, 2025. 11 12
r /\ i SAY Honorable Michael A. Ambri 16 United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 -6-