United States District Court, D. Arizona
Report & Recommendation On Petition For Writ Of Habeas Corpus
JAMES F. METCALF, Magistrate Judge.
I. MATTER UNDER CONSIDERATION
Petitioner, presently incarcerated in the Arizona State Prison Complex at Buckeye, Arizona, filed an Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on February 25, 2013 (Doc. 6). On September 30, 2013 Respondents filed their Response (Doc. 20). Respondents filed a Supplemental Answer on February, 2014 (Doc. 24), a Supplement on May 6, 2014 (Doc. 30), and a Second Supplemental Answer on September 19, 2014 (Doc. 36). Petitioner filed a Reply on October 22, 2013 (Doc. 21), a Supplemental Reply on March 21, 2014 (Doc. 28), and a Second Supplemental Reply on October 17, 2014 (Doc. 39).
The Petitioner's Petition is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND
A. FACTUAL BACKGROUND AND PROCEEDINGS AT TRIAL
On January 5, 2007, Petitioner and three others were indicted in Maricopa County Superior Court on charges of First Degree Murder, Attempted Armed Robbery, Burglary, Conspiracy to Commit Armed Robbery, and two counts of Aggravated Assault. (Exhibit A, Indictment.) The charges arose out of an armed robbery of a residence, with the victim being shot several times. (Exhibit B, Mem.Dec. at 2-4.) After rejecting a plea offer ( id. at 5), Petitioner proceeded to a joint jury trial with the co-defendants. ( Id. at 4.)
Petitioner was eventually acquitted on the aggravated assault charges, and was convicted on the other charges. (Exhibit B, Mem. Dec. at 4.) Petitioner was sentenced to his natural life in prison on the murder charge, and a consecutive term in prison of concurrent sentences of 10 years for attempted robbery and 15 years each for burglary and the conspiracy. ( Id. at 5.)
B. PROCEEDINGS ON DIRECT APPEAL
Petitioner filed a direct appeal. Counsel was appointed and was unable to find an appealable issue, and filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967) and related statue authorities. (Supp., Doc. 30, Exhibit, Opening Brief.) Petitioner was granted leave to file a supplemental brief, but failed to do so. (Exhibit B, Mem.Dec. at 5.) The Arizona Court of Appeals reviewed the case for "reversible error, " found none, and affirmed Petitioner's convictions and sentences. ( Id. at 6-7.) Petitioner was advised of his ability to file a motion for reconsideration or to seek review from the Arizona Supreme Court in a petition for review. ( Id. at 7.)
Petitioner did not seek further review on direct appeal. (Amend. Petition, Doc. 6 at 3; Answer, Doc. 20 at 4-5.)
C. PROCEEDINGS ON POST-CONVICTION RELIEF
On November 17, 2009, Petitioner filed a Notice of Post-Conviction Relief (Exhibit D). He ultimately filed a pro per Petition for Post-Conviction Relief, arguing that: (1) trial counsel was ineffective for failing to challenge the introduction of his statement to police, failing to maintain adequate communication with Petitioner, failure to subject the prosecution's case to meaningful adversarial testing, failure to prepare an opening argument or defense strategy other than lack of proof of premeditation, failure to call witnesses, failing to impeach witnesses with their statements to police or criminal convictions, failing to adequately challenge the sealing of a co-defendants' statement, failing to object to the disclosure of his "free-talk" with the prosecution, failing to adequately advise Petitioner on testifying and failing to adequately advise Petition in rejecting the plea offer; (2) his right to due process was violated when the trial court failed to strike the entire jury venire after racist and derogatory comments by one potential juror and after jurors saw an attorney carrying clothes and commented that it indicated the defendants were incarcreated; and (3) his right to due process was violated when his motion to sever was denied. On September 27, 2010 the PCR court found that the petition failed to show a colorable claim for post-conviction relief "for the reason given in the State's Response, " and summarily dismissed it. (Exhibit E, M.E. 9/27/10.)
Petitioner then filed a Petition for Review (Exhibit G), arguing claims of juror misconduct, failure to sever, and insufficient evidence of premeditation. The Arizona Court of Appeals summarily denied review. (Exhibit H, Order 8/17/12.)
D. PRESENT FEDERAL HABEAS PROCEEDINGS
Petition - Petitioner commenced the current case by filing his original Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on November 27, 2012 (Doc. 1). That petition was dismissed with leave to amend. (Order 1/31/13, Doc. 5.) Petitioner then filed his Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on February 25, 2013 (Doc. 6). Petitioner's Petition asserts the following five grounds for relief:
1. Petitioner's Fifth Amendment due process rights were violated by the failure to sever his trial from his co-defendants;
2. Petitioner's due process and fair trial rights were violated by juror misconduct and racist statements;
3. Petitioner's appellate counsel was ineffective, in violation of Petitioner's due process rights;
4. Petitioner's due process, equal protection, and fair trial rights were violated when jurors observed and commented on attorney carrying in clothing and speculating that it meant a defendant was in custody;
5. Petitioner's due process rights were violated when: (a) he was convicted on insufficient evidence to prove premeditation, and (b) Petitioner's exculpatory statements to police were redacted.
( See Order 5/17/13 at 2.)
Response - On September 30, 2013, Respondents filed their Limited Response ("Answer") (Doc. 20). Respondents argue Ground One does not present a cognizable federal claim. Respondents further argue that Grounds 1, 2, and 4 were only presented as state law claims to the Arizona Court of Appeals, and are now procedurally defaulted. Respondents argue that Grounds 3 and 5 were raised for the first time in his PCR Petition for Review, were thus not fairly presented, and are now procedurally defaulted.
Reply - On October 22, 2013, Petitioner filed a Reply (Doc. 21). Petitioner argues that: (1) the federal courts have recognized rights to sever ( id. at 2, et seq. ); (2) he was not required to present his claims to the Arizona Supreme Court, that he has diligently sought to raise his claims ( id. at 6 et seq. ); (3) any deficiency in his presentation to the state courts was the result of his untrained, pro se status ( id. at 9); and (4) his claims are meritorious ( id. at 10, et seq. ).
First Order to Supplement Briefs - On January 30, 2014, the Court noted that the Arizona Court of Appeals had reviewed the record for error following the Anders brief by appellate counsel, and directed the parties to supplement their briefs to address whether this resulted in actual consideration of any of Petitioner's claims. (Doc. 23.)
Supplemental Answer - On February 20, 2014, Respondents filed their Supplemental Answer (Doc. 24). Respondents argue that review under Anders did not result in exhaustion, citing a series of Ninth Circuit opinions addressing review of capital cases for "fundamental error" under a state mandated review. Respondents further argue that under State v. Thompson, 229 Ariz. 43, 46, 270 P.3d 870, 873 (App. 2012), review under Anders results in a review for non-frivolous issues, and in the event the court finds any, it directs further briefing, and the absence of any such direction indicates the Arizona court did not find any issues to resolve on the merits. Respondents further argue that Anders review does not result from any "fair presentation" of any issue for review.
Supplemental Reply On March 21, 2014, Petitioner filed his Supplemental Rely (Doc. 28), arguing that the Anders review resulted in consideration of his claims, and thus the exhaustion of his state remedies.
Supplements to Record - In an Order filed April 30, 2014, (Doc. 29), the Court observed that the record contained an incomplete copy of Petitioner's Opening Brief on direct appeal (Exhibit C). On May 6, 2014, Respondents supplemented the record to provide a complete copy. (Doc. 30.)
Second Order to Supplement Briefs - In an Order filed July 29, 2014 (Doc. 31), the Court indicated a tentative conclusion that Grounds Two and Four were fairly presented in Petitioner's Petition for Post Conviction Relief (Exhibit E), and directed Respondents to supplement their Answer to address the merits of these grounds.
Second Supplemental Answer - On September 19, 2014, Respondents filed their Second Supplemental Answer (Doc. 36), arguing that Grounds Two and Four are without merit.
Second Supplemental Reply - On October 17, 2014, Petitioner filed his "Reply to Respondents Second Supplemental Answer" (Second Supplemental Reply) (Doc. 39), arguing the merits of Grounds Two and Four.
III. APPLICATION OF LAW TO FACTS
A. STATE LAW CLAIMS
Respondents argue that Petitioner's Ground One, challenging the failure to sever his trial, is a state law claim and not cognizable on habeas review.
Petitioner summarizes his Ground One as claiming a right to sever "pursuant to Rules 13.13(b) and 13.4 of the Arizona Rules of Criminal Procedure, as well as Petitioner's Due Process Rights guaranteed him under the Fifth and Fourteenth Amendments to the U.S. Constitution and Article 2, § 4 of the Arizona Constitution." (Amend. Pet., Doc. 6 at "6.")
To the extent that petitioner is contending that the trial court should not have denied his severance motion as a matter of state law (e.g. the Arizona Rules of Criminal Procedure or the Arizona Constitution), his claim is not cognizable on federal habeas review. See 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (reiterating that "it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions").
However, the federal circuit courts have long recognized that a failure to sever can amount to a due process violation. See e.g. Featherstone v. Estelle, 948 F.2d 1497, 1503 (9th Cir. 1991). Indeed, Petitioner argues that such occurred. Thus, barring procedural defenses, this Court is free to decide that portion of Petitioner's Ground One asserting a denial of due process under the U.S. Constitution.
B. EXHAUSTION AND PROCEDURAL DEFAULT
Respondents argue that Petitioner's state remedies on his federal claims were not properly exhausted and are now procedurally defaulted, and thus the claims are barred from federal habeas review.
1. Exhaustion Requirement
Generally, a federal court has authority to review a state prisoner's claims only if available state remedies have been exhausted. Duckworth v. Serrano, 454 U.S. 1, 3 (1981) ( per curiam ). The exhaustion doctrine, first developed in case law, has been codified at 28 U.S.C. § 2254(b) and (c). When seeking habeas relief, the burden is on the petitioner to show that he has properly exhausted each claim. Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981)( per curiam ), cert. denied, 455 U.S. 1023 (1982).
Fair Presentation - A claim has been fairly presented to the state's highest court if petitioner has described both the operative facts and the federal legal theory on which the claim is based. Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003) (emphasis added). While the petitioner need not recite "book and verse on the federal constitution, " Picard v. Connor, 404 U.S. 270, 277-78 (1971), it is not enough that all the facts necessary to support the federal claim were before the state courts. Anderson v. Harless, 459 U.S. 4, 6 (1982)( per curiam ). Nor is it sufficient to make vague references to constitutional rights without delineating the source of those rights, or that a "somewhat similar state law claim was made." Anderson v. Harless, 459 U.S. 4, 6 (1982)( per curiam ).
Proper Proceeding - Ordinarily, "to exhaust one's state court remedies in Arizona, a petitioner must first raise the claim in a direct appeal or collaterally attack his conviction in a petition for post-conviction relief pursuant to Rule 32." Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). Only one of these avenues of relief must be exhausted before bringing a habeas petition in federal court. This is true even where alternative avenues of reviewing constitutional issues are still available in state court. Brown v. Easter, 68 F.3d 1209, 1211 (9th Cir. 1995); Turner v. Compoy, 827 F.2d 526, 528 (9th Cir. 1987), cert. denied, 489 U.S. 1059 (1989). "In cases not carrying a life sentence or the death penalty, claims of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.'" Castillo v. McFadden, 399 F.3d 993, 998 (9th Cir. 2005)(quoting Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999)).
Effect of Life Sentence - Here, Petitioner received a life sentence. It is true that the Swoopes decision refers to there being no right of appeal to the Arizona Supreme Court "except in capital cases or when a life sentence is imposed." Swoopes, 196 F.3d at 1009. The decision concludes that "except in habeas petitions in life-sentence or capital cases, claims of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them. Id. at 1010.
In reaching that decision, however, the Ninth Circuit was faced with a habeas petitioner whose appeal to the Arizona Court of Appeals was denied in 1988, prior to the 1989 amendments eliminating life-sentences from the exceptions to Arizona Court of Appeals jurisdiction. See State v. Swoopes, 155 Ariz. 432, 747 P.2d 593 (App. 1988). Similarly, the Ninth Circuit was required to draw on decisions applying the pre-1989 amendments law. In State v. Sandon, 161 Ariz. 157, 777 P.2d 220 (1989), the Arizona Supreme Court considered the review rights of a defendant whose appeal was denied in 1986. Sandon, 161 Ariz. at 157, 777 P.2d at 220. Although the Sandon court noted the adoption of the 1989 amendments in a footnote, they were not applying that law. Id. at 158 n. 1, 777 P.2d at 221 n.1.
Similarly, the decision in State v. Shattuck, 140 Ariz. 582, 684 P.2d 154 (1984), also relied on in Swoopes, predated the 1989 amendments. Indeed, the only Arizona decision relied upon in Swoopes and made after the 1989 amendments was Moreno v. Gonzalez, 192 Ariz. 131, 962 P.2d 205 (1998). Moreno did not, however rely upon Ariz.Rev.Stat. §§ 12-120.21 or 13-4031, or specifically discuss the death/life sentence limitation. Rather, Moreno focused on the "nature and scope of discretionary review by petition for review, " Moreno, 192 Ariz. at 134, 962 P.2d at 133, and was concerned with whether such discretionary review was an "appeal" within the meaning of the exceptions to Arizona's timeliness bar for claims not presented on "appeal" for good cause.
Moreover, the import of Sandon was the Arizona Supreme Court's apparent desire to stop the flood of "large numbers of prisoner petitions seeking to exhaust state remedies." Sandon, 161 Ariz. at 157, 777 P.2d at 220. The Sandon court concluded that "[o]nce the defendant has been given the appeal to which he has a right, state remedies have been exhausted." Id. at 158, 777 P.2d at 221, quoting Shattuck, 140 Ariz. at 585, 684 P.2d at 157. Thus, their recitation of the death/life sentence limitation is not properly read as the limit of their holding, but as a reiteration of the pre-1989 holding of Shattuck. Thus Sandon may only be reasonably read as an attempt by the Arizona Supreme Court to remove their discretionary review from the cycle of review required for exhaustion of state remedies. While a given respondent may desire to require its Arizona prisoner to file a petition for review with the Arizona Supreme Court, it is not the respondents' desire, however, but that of the Arizona court that is controlling.
Finally, Swoopes itself did not hinge on any reading of Ariz.Rev.Stat. §§ 12-120.21 or 13-4031 themselves, but upon the question "whether Arizona has identified discretionary Supreme Court review as outside the standard review process and has plainly said that it need not be sought for purpose of exhaustion.'" Swoopes, 196 F.3d at 1010, quoting O'Sullivan v. Boerckel, 526 U.S. 838, 849, 119 S.Ct. 1728, 1735 (1999). The only basis for identifying that discretionary review as being tied to death/life sentences was the language of Shattuck and Sandon, and their reliance upon the then applicable pre-1989 versions of Ariz.Rev.Stat. § § 12-120.21 and 13-4031.
Thus, until this issue is resolved by the Ninth Circuit, the Arizona District Courts are faced with either applying the exact language of Swoopes, or applying the principle of Swoopes to the facts as they exist in this case. The latter holds truer to the function of a trial court in attempting to apply appellate court precedent.
Using the techniques developed at common law, a court confronted with apparently controlling authority must parse the precedent in light of the facts presented and the rule announced. Insofar as there may be factual differences between the current case and the earlier one, the court must determine whether those differences are material to the application of the rule or allow the precedent to be distinguished on a principled basis.
Hart v. Massanari, 266 F.3d 1155, 1172 (9th Cir. 2001).
In O'Sullivan, the Supreme Court held that "the creation of a discretionary review system does not, without more, make review' in a state supreme court unavailable.'" Swoopes, 196 F.3d at 1009, quoting O'Sullivan, 119 S.Ct. at 1734. The reasoning of Swoopes is based upon the determination that the Arizona Supreme Court has instructed that discretionary review by that court is not part of the standard review process in Arizona and that it need not be sought for the purposes of exhaustion, and the Ninth Circuit's conclusion that this instruction is the something "more" referred to in O'Sullivan. Swoopes, 196 F.3d at 1010.
Under the version of Ariz.Rev.Stat. § 12-120.21 applicable to Petitioner, review by the Arizona Supreme Court is discretionary. Thus, that review is "unavailable" within the meaning of Swoopes and O'Sullivan, and utilization of that review is not necessary for Petitioner to exhaust his state remedies, despite his life sentence. ...