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Fisher v. Ryan

United States District Court, Ninth Circuit

May 8, 2013

Kathy Ann Fisher, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

REPORT AND RECOMMENDATION

BRIDGET S. BADE, District Judge.

Petitioner Kathy Ann Fisher has filed a timely Petition for Writ of Habeas Corpus raising two grounds for relief. (Doc. 1.) Respondents have filed a Limited Answer asserting that Petitioner's claims are procedurally defaulted and barred from federal habeas corpus review or are not cognizable on habeas corpus review.[1] (Doc. 10.) Petitioner has not filed a reply and the time to do so has passed. For the reasons set forth below, the Petition should be denied.

I. Factual and Procedural Background

On June 11, 2009, Petitioner pled guilty in the Arizona Superior Court, Pinal County (the trial court), to one count of fraudulent schemes and artifices, a class 2 felony. (Respondents' Exs. A and B.)[2] The trial court suspended imposition of sentence and placed Petitioner on probation for five years. (Respondents' Ex. C.) On December 2, 2010, Petitioner admitted to violating the terms of her probation. (Respondents' Ex. D.) The trial court revoked Petitioner's probation and sentenced her to an aggravated term of ten years' imprisonment. ( Id. at 3.)

A. Post-Conviction Review

On December 16, 2010, Petitioner filed a timely notice of post-conviction relief in the trial court pursuant to Arizona Rule of Criminal Procedure 32. (Respondents' Ex. E.) Petitioner, through counsel, subsequently filed a petition for post-conviction relief asserting that the trial court failed to properly balance aggravating and mitigating circumstances pursuant to Ariz. Rev. Stat. § 13-702(D), (E), and (F), and that defense counsel was ineffective for failing to present mitigating evidence at sentencing. (Respondents' Ex. F.) On November 4, 2011, the trial court rejected Petitioner's claims and denied relief. (Respondents' Ex. G.)

The trial court granted Petitioner an extension to December 23, 2011 to file a petition for review in the Arizona Court of Appeals (appellate court or court of appeals). (Doc. 1 at 37.) Although Petitioner filed a petition for review on December 19, 2011 (Doc. 1 at 12), she filed it in the trial court, rather than in the court of appeals. She did not file a petition for review in the court of appeals until May 23, 2012. (Respondents' Ex. J.) In her petition for review, Petitioner asserted different grounds for relief and argued for the first time that trial counsel was ineffective for advising her to plead guilty, and that the State had introduced "perjured testimony." (Respondents' Ex. J.) On June 22, 2012, the court of appeals dismissed the petition for review as untimely. (Respondents' Exs. H, I.)

B. Federal Petition for Writ of Habeas Corpus

On October 29, 2012, Petitioner filed the pending petition for writ of habeas corpus raising the following grounds for relief: (1) the trial court did not properly weigh aggravating and mitigating circumstances at sentencing, and (2) trial counsel was ineffective in violation of the Sixth Amendment for failing to present mitigating evidence during sentencing. (Doc. 1.) Thus, the grounds for relief that Petitioner asserts in her pending habeas petition are the same as the grounds for relief that she asserted in the trial court in her petition for post-conviction relief. Petitioner, however, did not raise these grounds for relief in the court of appeals. Therefore, as set forth below, Petitioner's claims are not cognizable on federal habeas corpus review or are procedurally barred from federal habeas corpus review.

II. Exhaustion and Procedural Bar

Ordinarily, a federal court may not grant a petition for writ of habeas corpus unless the petitioner has exhausted available state remedies. 28 U.S.C. § 2254(b). To exhaust state remedies, a petitioner must afford the state courts the opportunity to rule upon the merits of his federal claims by "fairly presenting" them to the state's "highest" court[3] in a procedurally appropriate manner. Baldwin v. Reese, 541 U.S. 27, 29 (2004) ("[t]o provide the State with the necessary opportunity, ' the prisoner must fairly present' his claim in each appropriate state court... thereby alerting that court to the federal nature of the claim"); Castille v. Peoples, 489 U.S. 346, 349 (1989) (same).

A claim has been "fairly presented" if the petitioner has described both the operative facts and the federal legal theory on which the claim is based. Baldwin, 541 U.S. at 33. A "state prisoner does not fairly present' a claim to a state court if that court must read beyond a petition or brief... that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so." Id. at 31-32. Thus, "a petitioner fairly and fully presents a claim to the state court for purposes of satisfying the exhaustion requirement if he presents the claim: (1) to the proper forum, ... (2) through the proper vehicle, ... and (3) by providing the proper factual and legal basis for the claim." Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005) (internal citations omitted).

The requirement that a petitioner exhaust available state court remedies promotes comity by ensuring that the state courts have the first opportunity to address alleged violations of a state prisoner's federal rights. See Duncan v. Walker, 533 U.S. 167, 178 (2001); Coleman v. Thompson, 501 U.S. 722, 731 (1991). Principles of comity also require federal courts to respect state procedural bars to review of a habeas petitioner's claims. See Coleman, 501 at 731-32. Pursuant to these principles, a habeas petitioner's claims may be precluded from federal review in two situations.

First, a claim may be procedurally defaulted and barred from federal habeas corpus review when a petitioner failed to present his federal claims to the state court, but returning to state court would be "futile" because the state court's procedural rules, such as waiver or preclusion, would bar consideration of the previously unraised claims. See Teague v. Lane, 489 U.S. 288, 297-99 (1989); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002). If no state remedies are ...


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