United States District Court, D. Arizona
CHARLES R. PYLE, Magistrate Judge.
Petitioner Charles Monte Reese, through counsel, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Before this Court are the Petition and accompanying Appendix (Doc. 1), Respondents' Answer with accompanying Exhibits (Doc. 9), and Petitioner's Reply (Doc. 12). The parties consented to exercise of jurisdiction by a Magistrate Judge, pursuant to 28 U.S.C. § 636(c)(1). (Doc. 13.) The Court finds that the Petition should be denied and dismissed with prejudice.
I. Factual and Procedural Background
Petitioner Charles Reese was driving his car while under the influence of alcohol in the early morning of March 2005 and struck the victim, who was riding a motorcycle. App. 2 at 1-2. Petitioner's blood alcohol concentration was.205 percent. Id. The victim died the next day. Id. Petitioner was arrested and charged with second degree murder, criminal damage, driving while under the influence of liquor, driving with an alcohol concentration of.08 or more, and driving while under the extreme influence of intoxicating liquor. App. 1, Indictment. On February 16, 2006, Petitioner entered a plea to manslaughter, a class two felony and dangerous-nature offense. Ex. A; App 1, Minute Entry 2/16/06. After a sentencing hearing at which the victim's family and friends spoke, the trial court sentenced Petitioner to a partially-aggravated term of 16 years' imprisonment. App. 1 at 8-11; App. 4. The trial court identified Petitioner's lack of a felony criminal history; remorse; involvement in counseling and alcohol abuse treatment since the accident; compliance with conditions of release; and family and community support as mitigating factors. App. 1, at 9. As aggravating factors the court identified the emotional and financial harm to the victim's survivors; the danger Petitioner posed and continues to pose to the community; Petitioner's blood alcohol level of.20 percent at the time of the accident; Petitioner's prior DUI conviction; and Petitioner's acknowledgment of an alcohol problem while continuing to drink and drive. Id.
On September 10, 2008, Petitioner filed an amended notice of post-conviction relief pursuant to Rule 32, Arizona Rules of Criminal Procedure. Ex. B. Petitioner had apparently filed an earlier notice, on June 5, 2007, which had not been acted upon by the trial court. See id. On April 1, 2010, Petitioner, through counsel, filed a petition for post-conviction relief (PCR), claiming that the trial court violated his due process rights at sentencing, his trial counsel was ineffective for failing to investigate the victim's use of a helmet, counsel was ineffective at sentencing, and newly discovered evidence. App. 1-A. The trial court summarily denied the PCR. App. 1-C.
Petitioner sought review of the trial court's denial of post-conviction relief by the Arizona Court of Appeals. Ex. D. The appellate court granted review but denied relief in a memorandum decision filed on March 30, 2011. App. 2. Petitioner sought review of that decision by the Arizona Supreme Court. Ex. E. On September 6, 2011, that court denied review. Ex. F.
Petitioner filed the instant Petition on December 28, 2011. Petitioner raises five issues: (1) ineffective assistance of counsel ("IAC") for failing to investigate; (2) ineffective assistance of counsel for failing to provide a risk/benefit analysis concerning Petitioner's plea offer; (3) ineffective assistance of counsel failing to present mitigating evidence at sentencing; (4) a violation of Petitioner's constitutional rights of due process and confrontation through the unsworn testimony of witnesses at sentencing; and (5) the trial court's violation of Petitioner's due process rights by imposition of an aggravated sentence. Petition at 6.
A. Standard of Review
Because Reese filed his petition after April 24, 1996, this case is governed by the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d) ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997) (holding that AEDPA governs federal habeas petitions filed after the date of its enactment, April 24, 1996).
Under the AEDPA, a state prisoner must generally file a petition for writ of habeas corpus within one year from "the date on which the judgment became final by the conclusion of direct review or the expiration of time for seeking such review[.]" 28 U.S.C. § 2244(d)(1)(A). "The time during which a properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation[.]" 28 U.S.C. § 2244(d)(2).
Petitioner had until one year after his conviction and sentence became final to file his federal petition. Respondents do not contest the timeliness of the Petition. Upon review of the state-court record, the Court finds that, pursuant to the AEDPA, the Petition is timely.
C. Procedural Default
Respondents assert that Ground Two of the Petition, an IAC claim asserting trial counsel failed to advise Petitioner of the risks and benefits of accepting the State's plea offer, is procedurally defaulted because Petitioner did not fairly present the claim to the state courts. Answer at 10. Petitioner responds that the issue was raised in Petitioner's petition for review to the Arizona Court of Appeals as a component of Petitioner's IAC claim. Reply, at 2, citing Ex. D, at 15-17.
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 exhaust state remedies, 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).
"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). The failure to exhaust subjects the petitioner to dismissal. Gutierrez v. Griggs, 695 F.2d 1195 (9th Cir. 1983).
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).
In Arizona, claims not previously presented to the state courts on either direct appeal or collateral review are generally barred from federal review because any attempt to return to state court to present them would be futile unless the claims fit into a narrow range of exceptions. See Ariz.R.Crim.P. 32.1(d)-(h), 32.2(a) (precluding claims not raised on direct appeal or in prior post-conviction relief petitions), 32.4(a) (time bar), 32.9(c) (petition for review must be filed within thirty days of trial court's decision). Because these rules have been found to be consistently and regularly followed, and because they are independent of federal law, either their specific application to a claim by an Arizona court, or their operation to preclude a return to state court to exhaust a claim, will procedurally bar subsequent review of the merits of such a claim by a federal habeas court. Stewart v. Smith, 536 U.S. 856, 860 (2002); Ortiz, 149 F.3d at 931-32 (finding Rule 32.2(a)(3) regularly followed and adequate).
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.
Cause is defined as a "legitimate excuse for the default, " and prejudice is defined as "actual harm resulting from the alleged constitutional violation." Thomas v. Lewis, 945 F.2d 1119, 1123 (9th Cir. 1991); see Murray v. Carrier, 477 U.S. 478, 488 (1986) (a showing of cause requires a petitioner to show that "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule"). Prejudice need not be addressed if a petitioner fails to show cause. Thomas, 945 F.2d at 1123 n.10. To bring himself within the narrow class of cases that implicate a fundamental miscarriage of justice, a petitioner "must come forward with sufficient proof of his actual innocence" Sistrunk v. Armenakis, 292 F.3d 669, 672-73 (9th Cir. 2002) (internal quotation marks and citations omitted), which can be shown when "a petitioner presents evidence of innocence so ...