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Fragoso v. Dupnik

United States District Court, D. Arizona

June 23, 2016

Emilio Molina Fragoso, Petitioner,
v.
Clarence Dupnik, et al., Respondents.

          ORDER

          LYNNETTE C. KIMMINS, UNITED STATES MAGISTRATE JUDGE

         Petitioner 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.[1] (Doc. 15.)

         FACTUAL AND PROCEDURAL BACKGROUND

         Fragoso 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.)

         Fragoso 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.)

         DISCUSSION

         Fragoso 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).

         Exhaustion

         Principles of Exhaustion and Procedural Default

         A writ 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 (1971).

         In 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 ...


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