United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Michelle H. Burns United States Magistrate Judge
TO THE HONORABLE DAVID G. CAMPBELL, UNITED STATES DISTRICT COURT:
Petitioner Christine Bida Beucler, who is confined in the Arizona State Prison Complex, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). Respondents filed an Answer (Doc. 9), and Petitioner filed a Reply (Doc. 10).
In December 2011, the State filed an indictment in Maricopa County Superior Court charging Petitioner with three counts of trafficking in stolen property, a class 3 felony. (Exh. C.)
The Arizona Court of Appeals described the crime as follows:
Victim allowed Defendant and Jessica Beucler (co-defendant) to stay in her home temporarily. One day, Victim returned home and noticed her jewelry box was unlocked and her jewelry was missing. Victim notified police of the missing jewelry. Scottsdale Police Department Detective P. located twenty-two pieces of Victim’s missing jewelry at Super Pawn, a pawn shop. Detective P. obtained several pawn ticket transactions for the stolen jewelry signed by Defendant and co-Defendant. Detective P. interviewed a Super Pawn employee and a Cash America Pawn Shop (Cash America) employee who were able to confirm Defendant’s identity from the alleged transactions at the pawn shops. After her arrest, Detective P. interviewed Defendant who admitted to stealing and pawning Victim’s jewelry.
(Exh. D at 2-3.)
The jury convicted Petitioner on all charged offenses and she was sentenced to concurrent terms of imprisonment, the longest being 6.5 years. (Exh. B.)
On April 4, 2014, counsel for Petitioner filed a timely appeal on her behalf. (Exh. D at 1 and Exh. E.) Petitioner’s counsel “filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising the court that after a diligent search of the record, he was unable to find any arguable question of law that is not frivolous.” (Exh. D at 1.) The state appellate court granted Petitioner an opportunity to file a supplement brief in support of her appeal but she chose not to because she “believ[ed] it to be futile.” (Exh. D at 1 and Doc. 1 at 7.) After searching “the entire record for reversible error, ” the state appellate court found “none” and affirmed Petitioner’s conviction and sentence. (Exh. D at 6.) Petitioner did not seek review in the Arizona Supreme Court and the Court of Appeals issued its mandate on October 14, 2014. (Exh. F.) Petitioner did not initiate any collateral-relief proceedings. (Exh. G.)
In the instant habeas petition, Petitioner raises two grounds for relief. In Ground One, she alleges that she received ineffective assistance of counsel. In Ground Two, she alleges that she is innocent of two of the three counts for which she was convicted because the state failed to carry its burden of proof.
In their Answer, Respondents contend that Grounds One and Two are procedurally defaulted. As such, Respondents request that the Court deny and dismiss Petitioner’s habeas petition with prejudice.
A state prisoner must exhaust his remedies in state court before petitioning for a writ of habeas corpus in federal court. See 28 U.S.C. § 2254(b)(1) and (c); Duncan v. Henry, 513 U.S. 364, 365-66 (1995); McQueary v. Blodgett, 924 F.2d 829, 833 (9th Cir. 1991). To properly exhaust state remedies, a petitioner must fairly present his claims to the state’s highest court in a procedurally appropriate manner. See O’Sullivan v. Boerckel, 526 U.S. 838, 839-46 (1999). In Arizona, a petitioner must fairly present his claims to the Arizona Court of Appeals by properly pursuing them through the state’s direct appeal ...