United States District Court, D. Arizona
REPORT AND RECOMMENDATION
DAVID K. DUNCAN, Magistrate Judge.
TO THE HONORABLE NEIL V. WAKE, UNITED STATES DISTRICT JUDGE:
David Leon Stokes II filed a Petition for Writ of Habeas Corpus in this Court challenging his convictions and sentences. (Doc. 1) Respondents' answer did not assert any affirmative defenses and, despite the Court's invitation to file a supplemental answer, Respondents chose not to do so. (Docs. 9, 13) See generally Wood v. Milyard, 132 S.Ct. 1826, 1831-34 (2012). Stokes filed a supplemental reply. (Doc. 18) Although the Court concludes that Stokes timely filed his Habeas Petition in this Court, the Court finds that he is not eligible for relief on any of his claims and, therefore, recommends that his Petition be denied and dismissed with prejudice.
Stokes was indicted for various crimes stemming from a sexual assault. (Doc. 9, Ex. A) At trial, the victim testified that she was kidnapped, stabbed, and raped inside a minivan. (Doc. 20-1, Ex. AA at 68, 71-73) She could not identify her attacker. (Doc. 20-1, Ex. AA at 82) Stokes' DNA matched the rape kit taken from the victim. (Doc. 9-4, Ex. EE at 86) The jury heard testimony confirming that semen was found on the middle seat of the minivan but it was never tested. (Doc. 9-4, Ex. EE at 17-21, 23-26, 52) The jury also heard testimony that the only fingerprints recovered from the car were not a match to Stokes. (Doc. 20-2, Ex. CC at 48-49)
Stokes testified in his own defense and claimed that it was possible he had sex with the victim in exchange for drugs the night before her assault. (Doc. 9, Ex. GG at 81-91) In response to a question from his attorney, Stokes also testified that he had spent 15 years in prison between 1980 and 1998. (Doc. 9, Ex. GG at 46) The victim of an assault Stokes committed in 1980 also testified. (Doc. 9, Ex. FF at 57-67)
On July 9, 2008, at the conclusion of a nine day trial, a jury in Maricopa County Superior Court found Stokes guilty of aggravated assault, sexual assault, kidnapping, and armed robbery. (Doc. 9, Exs. C, D) Stokes timely initiated his direct appeal and, after his counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), Stokes filed a supplemental brief. (Doc. 9, Exs. E, F, G) In his supplemental brief, Stokes raised several arguments including, as relevant here, that the prosecutor committed misconduct by (1) presenting a misleading argument, (2) presenting misleading testimony, (3) making an inference about his post- Miranda silence, and (4) withholding evidence. (Doc. 9, Ex. G at 23-25) Stokes also argued that the trial court abused its discretion by allowing the jury to hear about his previous prison term. ( Id. )
The Arizona Court of Appeals affirmed his convictions and sentences in a memorandum decision issued on February 11, 2010. (Doc. 9, Ex. H) Stokes requested and received extensions to file his petition for review. (Doc. 18, Exs. A, B, C, D) Stokes then timely filed a petition for review in the Arizona Supreme Court on May 5, 2010. (Doc. 9, Ex. I; Doc. 18, Ex. E)
After the Arizona Supreme Court denied his petition for review, Stokes moved for post-conviction DNA testing and also timely initiated post-conviction relief where, among other things, he argued that he was entitled to post-conviction DNA testing. (Doc. 9, Exs. J, N, O, P, Q) At the conclusion of briefing, the Maricopa County Superior Court denied both motions. (Doc. 9, Ex. R) Stokes timely petitioned the Arizona Court of Appeals to review the Superior Court's denial and, on May 7, 2013, the Court of Appeals granted review and denied relief. (Doc. 9, Exs. S, T at App. 1) On July 1, 2013, Stokes then timely filed a petition for review in the Arizona Supreme Court. (Doc. 9, Ex. U; Doc. 18, Exs. F, G, H)
The Arizona Supreme Court denied his petition for review on November 26, 2013. (Doc 9, Ex. U) Stokes had 90 days to petition the United States Supreme Court for certiorari. Sup.Ct. R. 13. He did not and so his judgement became final on February 24, 2014. The following day, his one year period of limitations for filing his Petition in this Court began to run. Stokes filed his Petition for Writ of Habeas Corpus in this Court in February 2015: he signed the Petition on February 20 and he placed it in the prison mailing system on February 23. (Doc. 1)
Stokes is not entitled to habeas relief.
Timely Filed Petition. Respondents did not raise any affirmative defenses but also did not present a record to the Court that showed Stokes had timely filed his Habeas Petition. See Rule 5 of the Rules Governing Section 2254 Cases. The Court requested, and received, additional information from Stokes and the Court is satisfied that Stokes' Habeas Petition in this Court is timely. (Docs. 13, 14, 16, 17, 18)
Denial of DNA Testing. Stokes argues that the Superior Court abused its discretion when it denied his post-conviction request for DNA testing and, in so doing, violated his Fourteenth Amendment due process rights. (Doc. 1 at 7) Respondents argue that this is not cognizable in habeas review because it is a question of state law and, despite Stokes' argument here, not a federal question. (Doc. 9 at 8-9)
The Court notes that Stokes did not raise this issue as a question of federal law in the Superior Court or in the Arizona Court of Appeals. (Doc. 9, Exs. P, Q, S). Instead, he first raised this as a federal question before the Arizona Supreme Court when his Petition for Review argued that the Superior Court's "denial of the petitioner's request for post-verdict DNA testing violate[d] the petitioner's Fourteenth Amendment right to due process." (Doc. 9, Ex. T at 3). 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. A defendant cannot "transform a ...