United States District Court, D. Arizona
LYNNETTE C. KIMMINS, UNITED STATES MAGISTRATE JUDGE
Emilio Fragoso has filed a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254. Before the Court are the
Petition (Doc. 1), Respondents’ Answer (Doc. 11),
Petitioner’s Reply and Supplement (Docs. 17, 18),
Respondents’ Answer to the Supplement (Doc. 19) and
Petitioner’s Reply thereto (Doc 20). The parties have
consented to Magistrate Judge jurisdiction. (Doc. 15.)
AND PROCEDURAL BACKGROUND
was convicted in the Pima County Justice Court on two counts
of driving under the influence. (Doc. 11, Ex. H.) On June 23,
2009, he was sentenced to 10 days in jail (9 suspended) and
one year probation. (Id., Ex. J.) Fragoso’s
sentence was stayed while he pursued review of his conviction
in state court and again after he filed the instant Petition.
(Id., Ex. I at 6; Exs. AA, BB.)
appealed his convictions and the fines imposed.
(Id., Ex. M.) The Superior Court affirmed
Fragoso’s convictions and sentence. After oral
argument, Fragoso’s motion for rehearing was denied.
(Id., Ex. R.) The Court of Appeals declined
jurisdiction over Fragoso’s Petition for Special
Action. (Id., Exs. S, V.) Fragoso filed a Petition
for Review with the Arizona Supreme Court, which was denied.
(Id., Exs. W, X.)
raises one claim in his Petition, that his blood was seized
in violation of the Fourth Amendment. On appeal, the Superior
Court summarized the facts relevant to the claim before this
Court as follows:
The Appellant came to the attention of law enforcement when
his overturned vehicle was discovered in the median on State
Route 86. One of the investigating officers, Officer Perrin,
made contact with the Appellant after the Appellant had been
removed from his vehicle and placed in the back of an
ambulance. Officer Perrin smelled a moderate odor of
intoxicants coming from the Appellant. Officer Perrin
followed the ambulance containing the Appellant to University
Medical Center. A sample of the Appellant’s blood had
been drawn for medical purposes. Officer Perrin requested and
obtained a sample from this blood draw.
(Doc. 11, Ex. P at 1.) Respondents contend the claim is
procedurally defaulted and is barred by Stone v.
Powell, 428 U.S. 465, 494 (1976).
of Exhaustion and Procedural Default
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 properly exhaust,
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
Arizona, there are two primary procedurally appropriate
avenues for petitioners to exhaust federal constitutional
claims: direct appeal and PCR proceedings. 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 ...