United States District Court, D. Arizona
REPORT AND RECOMMENDATION
DAVID K. DUNCAN, Magistrate Judge.
TO THE HONORABLE NEIL V. WAKE, UNITED STATES DISTRICT JUDGE:
Charles Edward Byrd filed a Petition for Writ of Habeas Corpus challenging his convictions and sentences in Maricopa County Superior Court for one count of conspiracy to commit possession of dangerous drugs for sale. As explained below, the Court recommends that his Petition be denied and dismissed with prejudice.
Following his October 2012 indictment, Byrd entered a plea of guilty in Maricopa County Superior Court to one count of conspiracy to commit possession of dangerous drugs for sale with one historical prior felony. (Doc. 13, Exs. A, C, D) When Byrd entered his plea of guilty, Byrd was represented by counsel and the Court informed him of his pertinent constitutional rights and his rights of review. (Doc. 13, Ex. D) On October 16, 2014, Byrd was sentenced to an aggravated sentence of 10 years to be followed by a term of community supervision. (Doc. 13, Ex. F)
On November 9, 2015, Byrd filed a Petition for Writ of Habeas Corpus in this Court raising four related arguments about the underlying stop, search, and seizure that led to his conviction. (Doc. 1) Respondents argue that all of these claims are unexhausted and procedurally barred and, moreover, cannot be considered under habeas review. (Doc 13) In reply, Byrd reargues that his constitutional rights were violated. (Doc. 14)
EXHAUSTION OF REMEDIES & PROCEDURAL DEFAULT
Exhaustion of Remedies. A state prisoner must properly exhaust all state court remedies before this Court can grant an application for a writ of habeas corpus. 28 U.S.C. § 2254(b)(1), (c); Duncan v. Henry, 513 U.S. 364, 365 (1995); Coleman v. Thompson, 501 U.S. 722, 731 (1991). Arizona prisoners properly exhaust state remedies by fairly presenting claims to the Arizona Court of Appeals in a procedurally appropriate manner. O'Sullivan v. Boerckel, 526 U.S. 838, 843-45 (1999); Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). To be fairly presented, a claim must include a statement of the operative facts and the specific federal legal theory. Baldwin v. Reese, 541 U.S. 27, 32-33 (2004); Gray v. Netherland, 518 U.S. 152, 162-63 (1996); Duncan, 513 U.S. at 365-66.
Procedural Default. A claim can also be subject to an express or implied procedural bar. Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). An express procedural bar exists if the state court denies or dismisses a claim based on a procedural bar "that is both independent' of the merits of the federal claim and an adequate' basis for the court's decision." Harris v. Reed, 489 U.S. 255, 260 (1989). Stewart v. Smith, 536 U.S. 856, 860 (2002) (Arizona's "Rule 32.2(a)(3) determinations are independent of federal law because they do not depend upon a federal constitutional ruling on the merits"); Johnson v. Mississippi, 486 U.S. 578, 587 (1988) ("adequate" grounds exist when a state strictly or regularly follows its procedural rule). See also Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991); Robinson, 595 F.3d at 1100.
An implied procedural bar exists if a claim was not fairly presented in state court and no state remedies remain available to the petitioner. Teague v. Lane, 489 U.S. 288, 298-99 (1989); Rose v. Lundy, 455 U.S. 509, 519-20 (1982); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002); Poland v. Stewart, 169 F.3d 573, 586 (9th Cir. 1999); White v. Lewis, 874 F.2d 599, 602 (9th Cir. 1989).
This Court can review a procedurally defaulted claim if the petitioner can demonstrate either cause for the default and actual prejudice to excuse the default, or a miscarriage of justice. 28 U.S.C. § 2254(c)(2)(B); Schlup v. Delo, 513 U.S. 298, 321 (1995); Coleman, 501 U.S. at 750; Murray v. Carrier, 477 U.S. 478, 495-96 (1986); States v. Frady, 456 U.S. 152, 167-68 (1982).
BYRD'S CLAIMS ARE BARRED
Byrd did not exhaust any of the claims in his habeas petition and an implied procedural bar now exists to prevent him from doing so. To meet the exhaustion requirement, Byrd needed to fairly present his claims to the Arizona Court of Appeals by providing the facts underlying his claim and the federal basis of those claims. Byrd never filed anything in the Arizona Court of Appeals and, therefore, his claims are not exhausted.
In addition, Byrd's claims are now subject to an implied procedural bar because his claims were not fairly presented in state court and no state remedies remain available to him because he is now precluded or time-barred from raising his claims in a successive and untimely Rule 32 petition ...