LESLIE A. BOWMAN, Magistrate Judge.
Pending before the court is a petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, filed on July 2, 2012, by Rosalio Delgado Beltran, an inmate confined in the Arizona State Prison Complex in Florence, Arizona. (Doc. 1)
Also pending is a motion for an evidentiary hearing, filed by the petitioner on June 25, 2013. (Doc. 22)
Magistrate Judge Bowman presides over this action pursuant to 28 U.S.C. § 636(c). (Doc. 12)
The petition and motion will be denied. Beltran's claim that he was denied his Sixth Amendment right to counsel when he was asked to submit to a blood alcohol test is not cognizable in habeas corpus. His remaining claims are procedurally defaulted.
Summary of the Case
Beltran was found guilty after a jury trial "of two counts of aggravated driving under the influence [DUI] and three counts of endangerment after he hit another vehicle from behind with his truck." (Doc. 19-1, p. 43) The trial court sentenced Beltran to "ten-year prison terms on the DUI convictions and to time served for the endangerment counts." Id.
On direct appeal, Beltran argued the trial court erred when it denied his motion to suppress the results of the blood alcohol test because the arresting officer interfered with his right to counsel. (Doc. 19-1, p. 43) The Arizona Court of Appeals affirmed his convictions and sentences on February 29, 2012. (Doc. 19-1, p. 42) The Arizona Supreme Court denied review on May 23, 2012. (Doc. 19-1, p. 48)
Previously, on June 14, 2011, Beltran filed notice of post-conviction relief. (Doc. 19-1, p. 58) The trial court stayed the proceedings until the court of appeals issued its mandate. (Doc. 19-1, 60) When counsel informed the court that he had reviewed the record and could find no colorable claims to raise, the trial court gave Beltran a deadline of February 11, 2013 to file a petition pro se. (Doc. 19-1, pp. 63-66) Beltran did not file a timely petition, and the trial court dismissed the notice of post-conviction relief on March 4, 2013. (Doc. 19-1, p. 69)
Previously, on August 1, 2011, Beltran delivered to the Arizona Court of Appeals a document entitled Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus. (Doc. 19-2, p. 2) The court of appeals transferred the petition to the Pima County Superior Court. Id. That court did not issue a ruling. A copy of the petition was also delivered to the Arizona Supreme Court. That court dismissed the petition on October 21, 2011. (Doc. 19-2, p. 14)
On November 18, 2011, Beltran filed with the Arizona Court of Appeals a Petition for Special Action. (Doc. 19-3, p. 2) On November 21, 2011, that court ordered him to file a copy of the ruling being challenged by the special action. (Doc. 19-3, p. 37) On January 11, 2012, the Arizona Court of Appeals declined to accept jurisdiction. (Doc. 19-3, p. 39) On March 22, 2012, the Arizona Supreme Court denied Beltran's petition for review. (Doc. 19-3, p. 42)
On July 2, 2012, Beltran filed in this court the pending petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1) Beltran raises four grounds for relief
(1) He was denied the right to counsel in violation of the Sixth and Fourteenth Amendments when he was asked to submit to a blood alcohol test. The trial judge deciding the issue was not fair, and counsel's handling of the issue was ineffective.
(2) His Fourteenth Amendment due process rights were violated and he was denied his Sixth Amendment right to compulsory process and to confront witnesses when the trial court denied him the opportunity to introduce evidence that he was injured in his holding cell when a piece of the ceiling fell on his head and the officers failed to promptly pursue the case after his discharge from the hospital.
(3) Trial counsel was ineffective for failing to present the testimony of alibi witnesses; and
(4) His prior felony conviction should not have qualified as a historic prior pursuant to A.R.S. § 13-604.
In their answer filed on June 20, 2013, the respondents argue all of Beltran's claims are procedurally defaulted except for the right to counsel claim he raised in his direct appeal. (Doc. 19) Beltran filed a reply on July 12, 2013 in which he argues he exhausted all of ...