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Cohn v. Ryan

United States District Court, D. Arizona

February 17, 2016

Michael Jay Cohn, Petitioner,
Charles Ryan, et al., Respondents.


EILEEN S. WILLETT, Magistrate Judge.


Pending before the Court is Petitioner Michael Jay Cohn's ("Petitioner") Amended Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus (the "Amended Petition") (Doc. 10). Respondents have filed a Limited Answer (Doc. 36), and Petitioner has replied (Doc. 38).[1] The matter is deemed ripe for consideration.

Petitioner raises four grounds for habeas relief in the Amended Petition. The undersigned finds that the all of the grounds are procedurally defaulted. It is therefore recommended that the Amended Petition be denied and dismissed with prejudice.


On November 25, 2013, Petitioner signed a plea agreement in which Petitioner pled guilty to second degree murder, a class 1 felony, in violation of Arizona law. (Doc. 36-1 at 6-7). The trial court accepted Petitioner's guilty plea. ( Id. at 9-11, 39-50). On February 21, 2014, the trial court sentenced Petitioner to a fifteen-year term of imprisonment. ( Id. at 69-111). Petitioner did not file a notice for post-conviction relief ("PCR") in the trial court.[2] (Doc. 182-85). Petitioner's conviction and sentence thus became final on May 22, 2014. Ariz. R. Crim. P. 32.4 (deadline for filing a PCR notice in an of-right PCR proceeding is "ninety days after the entry of judgment and sentence within thirty days after the issuance of the final order or mandate by the appellate court in the petitioner's first petition for post-conviction relief proceeding.").

On March 26, 2015, Petitioner filed the Amended Petition seeking federal habeas relief.[3]


A. Federal Habeas Relief is Unavailable to Challenges to the Conditions of Confinement

Federal law "unambiguously provides that a federal court may issue a writ of habeas corpus to a state prisoner only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.'" Wilson v. Corcoran, 562 U.S. 1, 5 (2010) ( per curiam ) (quoting 28 U.S.C. § 2254(a)). 28 U.S.C. § 2254 is the exclusive avenue for a state court prisoner to challenge the constitutionality of his detention, even when the petition only challenges the execution of the sentence and not the underlying conviction itself. White v. Lambert, 370 F.3d 1002, 1005, 1009 (9th Cir. 2004) (adopting the majority view that distinguishes between a federal prisoner's ability to resort to § 2241 to attack the execution of a sentence and the structural differences in the habeas statutes that make a state prisoner's resort to § 2241 improper to challenge the execution of a state sentence). However, "constitutional claims that merely challenge the conditions of a prisoner's confinement, whether the inmate seeks monetary or injunctive relief" are not cognizable in a Section 2254 habeas petition. Nelson v. Campbell, 541 U.S. 637, 643 (2004) (emphasis added). Those claims instead should be presented in a civil rights action filed pursuant to 42 U.S.C. § 1983. Id.; Muhammad v. Close, 540 U.S. 749, 750 (2004) ("Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus.... [R]equests for relief turning on the circumstances of confinement may be presented in a § 1983 action.").

B. Exhaustion-of-State-Remedies Doctrine

For over a century, it has been settled that a "state prisoner must normally exhaust available state remedies before a writ of habeas corpus can be granted by the federal courts." Duckworth v. Serrano, 454 U.S. 1, 3 (1981); see also Picard v. Connor, 404 U.S. 270, 275 (1971) ("It has been settled since Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886), that a state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for habeas corpus."). The rationale for the doctrine relates to the policy of federal-state comity. Picard, 404 U.S. at 275 (1971). The comity policy is designed to give a state the initial opportunity to review and correct alleged federal rights violations of its state prisoners. Id. In the U.S. Supreme Court's words, "it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation." Darr v. Burford, 339 U.S. 200, 204 (1950); see also Reed v. Ross, 468 U.S. 1, 11 (1984) ("[W]e have long recognized that in some circumstances considerations of comity and concerns for the orderly administration of criminal justice require a federal court to forgo the exercise of its habeas corpus power.") (citations and internal quotation marks omitted).

The exhaustion doctrine is codified at 28 U.S.C. § 2254. That statute provides that a habeas petition may not be granted unless the petitioner has (i) "exhausted" the available state court remedies; (ii) shown that there is an "absence of available State corrective process"; or (iii) shown that "circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1).

Case law has clarified that in order to "exhaust" state court remedies, a petitioner's federal claims must have been "fully and fairly presented" in state court. Woods v. Sinclair, 764 F.3d 1109, 1129 (9th Cir. 2014). To "fully and fairly present" a federal claim, a petitioner must present both (i) the operative facts and (ii) the federal legal theory on which his or her claim is based. This test turns on whether a petitioner "explicitly alerted" a state court that he or she was making a federal constitutional claim. Galvan v. Alaska Department of Corrections, 397 F.3d 1198, 1204-05 (9th Cir. 2005). "It is not enough that all the facts necessary to support the federal claim were before the state courts or that a somewhat similar state law claim was made." Anderson v. Harless, 459 U.S. 4, 6 (1982) (citation omitted); see also Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), as modified by 247 F.3d 904 (9th Cir. 2001) (federal basis of a claim must be "explicit either by citing federal law or the decisions of federal courts, even if the federal basis is self-evident or the underlying claim would be decided under state law on the same considerations that would control resolution of the claim on federal grounds").

C. Procedural Default Doctrine

If a claim was presented in state court, and the court expressly invoked a state procedural rule in denying relief, then the claim is procedurally defaulted in a federal habeas proceeding. See, e.g., Zichko v. Idaho, 247 F.3d 1015, 1021 (9th Cir. 2001). Even if a claim was not presented in state court, a claim may be procedurally defaulted in a federal habeas proceeding if the claim would now be barred in state ...

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