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Turner v. Ryan

United States District Court, Ninth Circuit

June 10, 2013

Leneer Durel Turner, Petitioner,
Charles L. Ryan, et al., Respondents.


THOMAS D. FERRARO, Magistrate Judge.

Petitioner Leneer Turner has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Before this Court are the Petition (Doc. 1), Respondents' Answer (Doc. 9), and two replies (Docs. 10, 11). The parties consented to exercise of jurisdiction by a Magistrate Judge, pursuant to 28 U.S.C. § 636(c)(1). (Doc. 12.) The Court finds that the petition should be denied.


In Pima County Superior Court, Petitioner pled guilty to one count of Burglary in the Third Degree (Case No. CR-2010 1049-001) and one count of Theft by Control (Case No. CR-2010 1488-001), and was sentenced to consecutive terms totaling ten years. (Doc. 9, Exs. C, D, E, F.) Petitioner filed a petition for post-conviction relief (PCR) alleging three claims of ineffective assistance of counsel, which the superior court denied on the merits on October 31, 2011. ( Id., Exs. J, L.) Petitioner filed a petition for review with the court of appeals on December 9, 2011. ( Id., Ex. M.) The appellate court denied review finding that the petition was not timely filed. ( Id., Exs. P, R, S, U.)


Respondents do not dispute the timeliness of the petition but contend all of Petitioner's claims are procedurally defaulted.


A writ of habeas corpus may not be granted unless it appears that a petitioner has exhausted all available state court remedies. 28 U.S.C. § 2254(b)(1); see also Coleman v. Thompson, 501 U.S. 722, 731 (1991). To properly exhaust, a petitioner must "fairly present" the operative facts and the federal legal theory of his claims to the state's highest court in a procedurally appropriate manner. O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999); Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 277-78 (1971).

In Arizona, there are two primary procedurally appropriate avenues for petitioners to exhaust federal constitutional claims: direct appeal and PCR proceedings. A habeas petitioner's claims may be precluded from federal review in two ways. First, a claim may be procedurally defaulted in federal court if it was actually raised in state court but found by that court to be defaulted on state procedural grounds. Coleman, 501 U.S. at 729-30. Second, a claim may be procedurally defaulted if the petitioner failed to present it in state court and "the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred." Coleman, 501 U.S. at 735 n.1; see also Ortiz v. Stewart, 149 F.3d 923, 931 (9th Cir. 1998) (stating that the district court must consider whether the claim could be pursued by any presently available state remedy). If no remedies are currently available pursuant to Rule 32, the claim is "technically" exhausted but procedurally defaulted. Coleman, 501 U.S. at 732, 735 n.1; see also Gray, 518 U.S. at 161-62.

Because the doctrine of procedural default is based on comity, not jurisdiction, federal courts retain the power to consider the merits of procedurally defaulted claims. Reed v. Ross, 468 U.S. 1, 9 (1984). However, the Court will not review the merits of a procedurally defaulted claim unless a petitioner demonstrates legitimate cause for the failure to properly exhaust the claim in state court and prejudice from the alleged constitutional violation, or shows that a fundamental miscarriage of justice would result if the claim were not heard on the merits in federal court. Coleman, 501 U.S. at 750.


Petitioner raises four claims in his habeas petition: (1) his right to due process was violated because he was not given time to review his Presentence Report (PSR) in advance of sentencing; (2) because the trial judge was unaware of Turner's history of mental health problems he did not give it any weight at sentencing; (3) the sentencing judge abused his discretion by sentencing Turner to an aggravated term; and (4) counsel was ineffective for failing to investigate and present evidence regarding Turner's mental health and for not allowing Turner time to review and correct the PSR.

Claim 1

Petitioner alleges that receiving the PSR at the time of sentencing, without time to review its content, violated his right to due process. Petitioner did not raise this due process claim in his PCR petition, although he raised a related claim that counsel was ineffective for failing to timely provide him a copy of the PSR. (Doc. 9, Ex. J.) Therefore, he failed to fairly present this claim in state court. If Petitioner were to return to state court now to litigate this claim it would be found waived and untimely under Rules 32.2(a)(3) and 32.4(a) of the Arizona Rules of Criminal Procedure because ...

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