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Virgen v. Ryan

United States District Court, D. Arizona

October 3, 2014

Jose Armando Virgen, Petitioner,
Charles L. Ryan, et al., Respondents.


D. THOMAS FERRARO, Magistrate Judge.

Petitioner Jose Virgen, presently incarcerated at the Arizona State Prison-Lewis, Buckley Unit, in Buckeye, Arizona, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Before the Court are the Amended Petition (Doc. 13) and Respondents' Answer (Doc. 23). Petitioner also twice has filed a substantively-identical document captioned "Motion to Inform Courts that Count One and Count Four were Presented to the Court of Appeal and Arizona Supreme Court and First and Second Petition are Together." (Docs. 21, 24.) The Court treats this second filing as Virgen's reply brief. The parties have consented to Magistrate Judge jurisdiction. (Doc. 20.)


Virgen was convicted in the Superior Court of Pima County of attempted burglary and attempted aggravated assault with a deadly weapon. (Doc. 23, Ex. B.) On November 16, 2009, he was sentenced to two 10-year prison terms to be served concurrently. ( Id. at 2.)

The convictions were based on the following facts, as summarized by the appellate court:

In the early morning hours of March 23, 2008, R. heard a car pull into his driveway and a noise at the gate to his backyard. He looked out a sliding glass door and saw a man he subsequently identified as Virgen, who pointed a shotgun at R.'s face. R. "ducked down, " moved into the kitchen, and called 9-1-1. R. saw Virgen get into the passenger side of a car that had been idling in the driveway.
About an hour later, a Tucson police officer noticed a car stuck on a curb and stopped to help. Virgen, along with two others, was standing beside the car. As the officer spoke to Virgen and the others, he saw "what appeared to be a sawed-off shotgun... in the vehicle in plain view." The officer secured the weapon, which was unloaded, and detained Virgen. Meanwhile, officers had arrived at R.'s home in response to the 9-1-1 call. One of the officers took R. to where Virgen and the others were being detained, and R. identified Virgen as the man who had been in his yard.

(Doc. 23, Ex. G at 2.)

Virgen filed an appeal, and the Arizona Court of Appeals affirmed his convictions and sentences. ( Id., Exs. D, G.) Virgen's request for review in the Arizona Supreme Court was denied. ( Id., Exs. H, I.) Virgen filed a Petition for Post-conviction Relief (PCR). ( Id., Ex. M.) After an evidentiary hearing, the PCR court denied relief. ( Id., Exs. S, T, 6, 7.) Virgen sought and was granted review of the PCR denial in the Arizona Court of Appeals, but relief was denied. ( Id., Exs. V, W, X.) Virgen did not seek review in the Arizona Supreme Court. ( Id., Ex. Y.) The Arizona Court of Appeals issued its mandate on May 14, 2013. ( Id. )


Virgen raises four claims in his Petition. Respondent does not contest the timeliness of the Petition but contends Claim 1 is procedurally defaulted, and Claims 2 and 4 are not cognizable. The Court will first examine exhaustion, then cognizability, and then will address the merits of any remaining claims.


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 v. Netherland, 518 U.S. 152, 161-62 (1996).

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.


Virgen alleges numerous legal errors and constitutional violations within this claim. He states, in part, "malicious conviction, miscarriage of justice, plain error, structural error, fundamental error, judicial misconduct, prosecutorial misconduct and vindictiveness." (Doc. 13 at 6.) The Court, therefore, looks to the facts he alleges to determine the actual claim asserted.[1] The factual premise of the claim appears to be that the prosecutor obtained a superseding indictment 20 days before trial, which prevented Virgen from having enough time to prepare for trial. Further, the court did not take action to remedy the late change to the indictment, such as dismissing the charges or granting a trial continuance. Virgen argues the late indictment violated his rights under the Sixth Amendment.

Virgen concedes in the Petition that he did not present these claims to the Arizona Court of Appeals because counsel did not want to raise them. (Doc. 1 at 6.) In his reply, Virgen states that he raised this claim in state court but the court ruled only on the documents filed by Virgen's appointed counsel. (Doc. 21.)

Review of Virgen's opening appeal brief and PCR petition reveals that this claim was not raised in those proceedings by Virgen's appointed counsel. Virgen unsuccessfully attempted to raise some issues pro se. He submitted filings directly to the Arizona Court of Appeals in June and August 2013, after the mandate had issued on his petition for review. (Doc. 13, Exs. 12, 13.) On the August 2013 document, someone wrote, "case mandated 5/13/13 no longer pending in this court." In November 2013, the Arizona Supreme Court issued an order in response to a pro se filing by Virgen. ( Id., Ex. 11.) The supreme court denied his requests to file a delayed appeal, for reconsideration and a stay pending appeal and sent him a copy of the court of appeals December 12, 2012 decision, which Virgen had asserted he had never received. ( Id. )

Review of the record reveals that Claim 1 was not fairly presented in a procedurally proper manner to the court of appeals by counsel or Virgen himself. If Virgen were to return to state court now to litigate Claim 1, 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 it does not fall within an exception to preclusion. Ariz. R. Crim. P. 32.2(b); 32.1(d)-(h). Therefore, this claim is technically exhausted but procedurally defaulted.

Virgen asserts this claim was not raised due to the fault of counsel. Claim 1 is a record-based claim that should have been raised, if at all, on direct appeal. Therefore, to the extent this claim is viable, it is appellate counsel that should have raised it in state court. Ineffective assistance of appellate counsel that violates the Sixth Amendment can serve as cause for a petitioner's failure to properly exhaust claims in state court. Murray v. Carrier, 477 U.S. 478, 488 (1986). However, before ineffectiveness of appellate counsel may be used to establish cause for a procedural default, it must be presented to the state court as an independent claim. Id. at 489. Petitioner did not allege in his PCR petition that appellate counsel was ineffective for failing to raise any claims. (Doc. 13, Ex. X.) However, because he was represented by the same counsel on appeal and in his first PCR proceeding, it would have been improper for that counsel to allege his own ineffectiveness. See State v. Bennett, 146 P.3d 63, 67, 213 Ariz. 562, 566 (2006). Therefore, it ...

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