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Erickson v. Ryan

United States District Court, D. Arizona

August 9, 2016

Jon Edward Erickson, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          REPORT AND RECOMMENDATION

          Honorable Bruce G. Macdonald United States Magistrate Judge

         Currently pending before the Court is Petitioner Jon Edward Erickson’s pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 1). Respondents have filed a Limited Answer to Petition for Writ of Habeas Corpus (“Answer”) (Doc. 11) and Petitioner replied (Doc. 14). The Petition is ripe for adjudication.

         Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, [1] this matter was referred to Magistrate Judge Macdonald for Report and Recommendation. The Magistrate Judge recommends that the District Court deny the Petition (Doc. 1).

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The Arizona Court of Appeal stated the facts[2] as follows:

Erickson met S., the victim in this case, in 2000 and she moved into his home within a month. Erickson testified at trial that, after moving in, S. had been involved in drug use and “partying.” He testified that as a result he had asked S. to leave, only to allow her back days later, and that this cycle had gone on repeatedly. In January 2001, after Erickson had spent a week with his wife, from whom he was separated, S. wrote him a letter demanding that he choose between her and his wife. Erickson testified he had refused to make a choice but had told S. she would have to move out.
On February 2, 2001, Erickson’s neighbors called 9-1-1 after finding him outside with blood on his clothing and hands. When emergency personnel arrived, Erickson was “combative” but did not have any injuries. Sheriff deputies initially assumed Erickson had been the victim of a stabbing and went to Erickson’s home to conduct a “welfare check.” As they approached, they could see through the open front door, S. face-down on the floor and covered in blood. She was pronounced dead and an autopsy determined she had sustained at least thirty stab wounds, three of which were potentially fatal.
When interviewed by a detective the next day, Erickson initially stated the blood on his clothing had come from a deer he had killed and skinned. But after he was informed that S. was dead, he stated “it was self-defense.” He explained that S. had tried to kill him by “practicing witchcraft on him” and “crushing his heart” and that he had to kill her. He stated he had stabbed her ten to fifteen times.

Answer (Doc. 11), Ariz. Ct. of Appeals, Memorandum Decision 1/21/2011 (Exh. “A”) at 1.

         On February 9, 2001, Petitioner was indicted on and charged with (1) first degree murder; (2) possession of marijuana; and (3) possession of drug paraphernalia. Answer (Doc. 11), Indictment 2/9/2011 (Exh. “B”). On February 11, 2002, a jury found Petitioner guilty on all three (3) counts. Answer (Doc. 11), Verdict Forms (Exh. “C”). On April 23, 2002, Petitioner was sentenced to an aggravated term of natural life without the possibility of parole for first degree murder[3] and probation for the possession of marijuana and unlawful possession of drug paraphernalia counts. Answer (Doc. 11), Ariz. Superior Ct., Cochise County, Sentence of Imprisonment 4/22/2002 (Exh. “D”) at 2-3 & Sentence of Probation 4/23/2002 (Exh. “D”) at 1. After Petitioner’s conviction and sentence, he timely filed a notice of appeal. Answer (Doc. 11), Def.’s Motion to Remand (Exh. “E”) at 2. A direct appeal was never had, as Defendant’s Motion to Remand explained:

Since that date [of filing the notice of appeal], court reporter Rebecca Hume, who reported most of the trial has failed to produce a complete and accurate record, this court ultimately appointed court reporter Royce Conner to review Ms. Hume’s notes and transcriptions and provide a report to the court concerning the ability to obtain a complete record.
On January 23, 2008, this court conducted a hearing at which time Mr. Conner produced his report on Ms. Hume’s transcripts and testified concerning the inadequacy of the transcripts. Counsel undersigned received a copy of that report on February 5, 2008 from the Clerk of Superior Court. This Motion now follows.
Rule 31. 8, Arizona Rules of Criminal Procedure requires that a certified transcript of all hearings and trial dates be provided to the parties and the court of appeals for purposes of pursuing an appeal. The transcript is due forty-five (45) days after transcripts are ordered. Six years have now passed and it is clear from Mr. Conner’s report and his testimony at the January 23, 2008 hearing that it is impossible to produce a complete and accurate transcript. As Mr. Conner testified, the transcript is only sixty to seventy percent complete. Substantial portions of the trial are missing, such as the first day of trial, complete examinations of three key State’s witnesses, nearly all the cross-examinations on a number of other witnesses, portions of the Defendant’s testimony, and portions of closing statements.

Answer (Doc. 11), Def.’s Motion to Remand at 2-3. At a status hearing, the trial court granted Defendant’s Motion to Remand, finding that there was not an adequate record and vacating his convictions and sentences. Answer (Doc. 11) Ariz. Superior Ct., Cochise County, Minute Entry 1/27/2009 (Exh. “E”) at 1.

         Petitioner was again tried for first degree murder and found guilty by a jury. See Answer (Doc. 11), Verdict Form 10/9/2009 (Exh. “F”). On December 3, 2009, Petitioner was again sentenced to term of imprisonment “for the remainder of his natural life without the possibility of parole or other possibility of release under any circumstances.” Answer (Doc. 11), Ariz. Superior Ct., Cochise County, Sentence of Imprisonment 12/3/2009 (Exh. “G”) at 2; see also Answer (Doc. 11), Hr’g Tr. 12/2/2009 (Exh. “H”). At the time of sentencing, the State moved to dismiss Counts II and III of the indictment for possession of marijuana and unlawful possession of drug paraphernalia, which were set for trial at a later date. Answer (Doc. 11), Exh. “H” at 49:16-50:17. The court granted the motion to dismiss the two remaining counts. Id.

         A. Direct Appeal

         On October 6, 2010, Petitioner filed his Opening Brief. Answer (Doc. 11), Appellant’s Opening Br. 10/6/2010 (Exh. “I”); see also Petition (Doc. 1), Exh. “A-1.” Petitioner’s sole issue on appeal was whether there was sufficient evidence to sustain a conviction for first degree murder. Answer (Doc. 11), Exh. “I” at 15-17. Relying solely on state law, Petitioner argued that “[t]he facts of this case simply do not fit the definition of premeditated murder.” Id., Exh. “I” at 17. Accordingly, Petitioner sought “a reversal of his conviction and sentence.” Id.

         On January 21, 2011, the Arizona Court of Appeals affirmed Petitioner’s conviction. Answer (Doc. 11), Ariz.Ct.App. Memorandum Decision 1/21/2011 (Exh. “A”); see also Petition (Doc. 1), Exh. “A-3.” Upon review of state law and the evidence presented at trial, the court of appeals held that “the state presented sufficient evidence to support the jury’s conclusion that Erickson had committed premeditated, first-degree murder and we will not set aside the conviction.” Answer (Doc. 11), Exh. “A” at 6 (citing State v. Carlisle, 198 Ariz. 203, ¶ 11, 8 P.3d 391, 394 (Ct. App. 2000)). On January 21, 2011, Petitioner filed his Petition for Review. Petition (Doc. 1), Pet. for Review (Exh. “A-3”). On August 1, 2011, the Arizona Supreme Court denied review. See Answer (Doc. 11), Ariz. Supreme Ct. Minute Entry 8/1/2011 (Exh. “J”); see also Petition (Doc. 1), Exh. “A-3.”

         B. Initial Post-Conviction Relief Proceeding

         On August 11, 2011, Petitioner filed his Notice of Post-Conviction Relief (“PCR”). Answer (Doc. 11), Not. of PCR 8/11/2011 (Exh. “K”); see also Petition (Doc. 1), Exh. “B-1.” On June 1, 2012, counsel for Petitioner filed a Petition for Post Conviction Relief. See Answer (Doc. 11), Pet. for PCR 6/1/2012 (Exh. “L”); see also Petition (Doc. 1), Exh. “B-2.” Petitioner asserted a single ground for relief, alleging ineffective assistance of trial counsel based on an alleged failure to “adequately present in mitigation at sentencing the overwhelming evidence that Defendant was mentally psychotic at the time of the murder to the extent that he was significantly impaired in his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.” Answer (Doc. 11), Exh. “L” at 2. Petitioner further asserted that he “was not merely ‘high’ on drugs, but was psychotic and extremely impaired.” Id., Exh. “L” at 19. Moreover, Petitioner argued that although “the Court heard some of the above-cited evidence over the eight days of trial regarding defendant’s bizarre behavior, trial counsel failed to specifically recall for the Court any of the evidence at the pre-sentence hearing.” Id., Exh. “L” at 21. As such, Petitioner asserted that “[h]ad defense counsel properly presented the matter at sentencing, Defendant’s psychosis would have been a strong mitigating factor with [a] reasonable probability of altering [the] sentence.” Id.

         On July 23, 2012, the Rule 32 court determined that the issue regarding trial counsel’s alleged failure was “not precluded . . . but [it] d[id] not present a colorable claim.” Answer (Doc. 11), Ariz. Superior Ct., Cochise County, Decision and Order 7/23/2012 (Exh. “M”) at 2; see also Petition (Doc. 1), Exhibits. Upon review of the evidence presented at trial, including Petitioner’s own testimony, the Rule 32 court found that although “Mr. Erickson had every right to present one defense at trial and then, after that defense failed, to have presented in mitigation a completely inconsistent or even contradictory position[, ] . . . merely because inconsistent defenses may be offered does not always mean they should be offered.” Answer (Doc. 11), Exh. “M” at 4. The Rule 32 court further stated that “[n]ot only would the psychosis strategy have been inconsistent with defendant’s testimony at trial, it would have been inconsistent with defendant’s statements at sentencing.” Id., Exh. “M” at 5. The Rule 32 court also observed that “[t]here is no reason to believe that defense counsel were ignorant of defendant’s position - that he was not guilty and should be acquitted - before defendant spoke at sentencing. Defendant’s position seems to have been consistent throughout the proceedings.” Id., Exh. “M” at 6. Finding that Petitioner could not meet either prong of Strickland, [4] his ineffective assistance of sentencing counsel claim was denied. See id., Exh. “M.”

         On August 6, 2012, the Rule 32 court entered its Order granting Petitioner until October 22, 2012 to file his Petition for Review. Answer (Doc. 11), Ariz. Superior Ct., Cochise County, Order 8/6/2012 (Exh. “P”). On September 21, 2012, Petitioner filed his Petition for Review in the Arizona Court of Appeals. See Answer (Doc. 11), Pet. for Review 9/21/2012 (Exh. “N”). Petitioner reasserted the sole ground for relief raised in his PCR petition, whether trial counsel was ineffective for allegedly failing to adequately present mitigation evidence at sentencing. Id., Exh. “N” at 1-2. On September 25, 2012, the Arizona Court of Appeals issued its order instructing Petitioner “within ten days [to] show why the petition for review should not be dismissed [for untimeliness].” Answer (Doc. 11), Ariz.Ct.App. Order 9/25/2012 (Exh. “O”). The order further admonished that “if no such showing is made, the petition for review will be dismissed.” Id., Exh. “O.” Review of the Arizona Court of Appeals docket, shows that Petitioner did not respond to the court’s directive. See Ariz. Ct. of Appeals, Case No. 2 CA-CR 2012- 0400-PR, State of Arizona v. Jon Edward Erickson, Docket.[5] In light of Petitioner’s failure to comply with the court’s directive, the court of appeals dismissed the Petition for Review. Ariz. Ct. of Appeals, Order 10/10/2012 (Exh. “Q”).

         C. Subsequent Post-Conviction Relief Proceeding

         On September 24, 2012, Petitioner filed his second Notice of Post-Conviction Relief (“PCR”). Answer (Doc. 11), Not. of PCR 9/24/2012 (Exh. “R”); see also Petition (Doc. 1), Exh. “C-1.” The Notice claimed Petitioner was entitled to relief based upon Martinez v. Ryan[6]. See Answer (Doc. 11), Exh. “R” at 2. On October 26, 2012, counsel for Petitioner filed an Anders[7] brief with the Rule 32 court.[8] Answer (Doc. 11), Pet. for PCR and Mot. to Withdraw and Mot. for Leave to Allow Suppl. Pro Se Mem.; Order (Exh. “S”). On December 3, 2012, Petitioner filed his Supplement to Defendant-Petitioner’s Notice of Post-Conviction Relief. Answer (Doc. 11), Suppl. to Def.-Pet.’s Notice of PCR 12/3/2012 (Exh. “T”). Petitioner alleged ineffective assistance of his second trial counsel for not using a forensic specialist, which resulted in Petitioner’s first degree murder conviction and life sentence. Id., Exh. “T” at 3.

         On January 23, 2013, the Rule 32 court held Petitioner’s contention that defense counsel was ineffective at trial could have been raised in Petitioner’s first PCR petition, and because it was not, the issue had been waived. Answer (Doc. 11), Ariz. Superior Ct., Cochise County, Decision and Order 1/23/2013 (Exh. “U”) at 2; see also Petition (Doc. 1), Exh. “C-3.” The Rule 32 court further observed that “[e]ven if the claim were not precluded, it would still not be colorable and would not justify an evidentiary hearing.” Answer (Doc. 11), Exh. “U” at 2. The Rule 32 court determined that there was no evidence to show that trial counsel “fell below any applicable standard by not calling Dr. Trepeta.” Id. Moreover, the court stated that it was “not aware of any authority that defense counsel should be found to be ineffective because counsel declines to present ineffective expert testimony.” Id. Accordingly, the Rule 32 court dismissed Petitioner’s second PCR petition. Id., Exh. “U” at 3.

         On February 25, 2013, Petitioner filed his Petition for Review with the Arizona Court of Appeals. See Answer (Doc. 11), Pet. for Review 2/25/2013 (Exh. “V”); see also Petition (Doc. 1), Exh. “C-4.” In his Petition for Review, Petitioner sought review of his ineffective assistance of counsel claim pursuant to Martinez v. Ryan. See Answer (Doc. 11), Exh. “V.” On June 10, 2013, the Arizona Court of Appeals granted review, but denied relief. Answer (Doc. 11), Ariz. Ct. of Appeals, Mem. Decision 6/10/2013 (Exh. “W”); see also Petition (Doc. 1), Exh. “C-4.” The court of appeals held that it “[could not] say the court abused its discretion to the extent it failed to consider Erickson’s claim as one of ineffective assistance of Rule 32 counsel[, ] [a]nd it properly concluded that a claim of ineffective assistance of trial counsel was precluded.” Id., Exh. “W” at 3 (citing Ariz. R. Crim. P. 32.2(a)(3)). The court went on to find that “even assuming Martinez could be applied to Erickson’s case it does not provide him with a basis for relief.” Id., Exh. “W” at 3. Accordingly, the court of appeals denied the petition. Id., Exh. “W” at 4.

         D. The Instant Habeas Proceeding

         On September 9, 2013, Petitioner filed his Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 1). Petitioner claims nine (9) grounds for relief. First, Petitioner argues that the evidence presented at trial “was simply not sufficient . . . to sustain a conviction for First Degree Murder.” Petition (Doc. 1) at 6. Embedded within this broad ground for relief, Petitioner asserts that “[n]either side requested a second degree or lesser instruction; therefor [sic] the jury was left with the all or nothing proposition of conviction for First Degree Murder.” Id. With this sub-issue, Petitioner is alleging ineffective assistance of trial counsel, as well as insufficient jury instructions. See Id . Second, Petitioner alleges ineffective assistance of trial counsel based upon “his [alleged] failure to adequately present in mitigation at sentencing, the overwhelming evidence that defendant was mentally psychotic at the time of the murder to the extent that defendant was significantly impaired in his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.” Id. at 7. Third, Petitioner claims “ineffective assistance of post-conviction attorney, [who] did not bring up several issues that could be taken to the Federal Courts supported by “Martinez v. Ryan.” Id. at 8. Petitioner indicates that Grounds Four (4) through Eight (8) represent those claims which the ineffectiveness of his PCR counsel denied him. Petition (Doc. 1) at 8. Fourth, Petitioner alleges ineffective assistance of trial counsel for an alleged failure to present expert witness testimony. Id. at 10. Petitioner presents three (3) distinct sub-issues, including (1) an alleged failure by counsel to submit a toxicology report, where there was a “reasonable probability that jurors would have believed defendants [sic] self defense [sic] claim had they known [the Victim] was intoxicated and under influence [sic] during attack . . . [and] would of [sic] also proven that defendant was not intoxicated or under influence [sic] during the attack[;]” (2) an alleged failure by counsel “to submit a forensic specialist to argue Prosecutors [sic] medical examiner was prejudicial because reasonable probability that jurors would have believed defendants [sic] self defense [sic] claim . . . [that] defendant was underneath [the victim] fighting for his life[;]” and (3) an alleged failure by counsel “to produce a psychologist because reasonable [sic] probability that jurors would have believed defendants [sic] self-defense claim had they known Defendant was suffering from Post tramatic [sic] stress disorder after the attack on defendants [sic] life.” Id. at 11. Fifth, Petitioner asserts that his Constitutional rights were violated because “the Miranda[9] Warnings were not read to [him].” As an initial matter, Petitioner asserts that Detective Wheeler “refused” to use the tape recorder while Petitioner was in the hospital, and further accuses the detective of manipulating the comments that Petitioner made over a period of time “into one set of comments.” Id. at 12. Petitioner further asserts that Detective Wheeler did not read him the Miranda warnings prior to questioning at the police station. Id. Sixth, Petitioner asserts that the officers’ warrantless entry into his home, as well as the subsequent seizure of evidence, violated his Fourth Amendment rights. Petition (Doc. 1) at 13. Seventh, Petitioner asserts that the “[j]ury instructions were insufficient to protect defendant from substantial prejudice.” Id. at 14. Specifically, Petitioner believes that defense counsel should have “brought up jury instruction ‘use of force in crime prevention’” and that he only used force in self-defense. Id. Eighth, Petitioner alleges that his second trial violated the Fifth Amendment’s Double Jeopardy Clause. Id. at 15. Ninth, Petitioner alleges that his Sixth Amendment rights were violated because “Judge Hoggatt showed extreme prejudice due to the fact that he was a Judge through out [sic] several other proceedings that he had with defendant which were all overturned.” Id. at 16. On January 30, 2014, Respondents filed their Answer (Doc. 11). On February 12, 2014, Petitioner replied (Doc. 14), which included a line by line refutation of Respondents’ Answer. . . . . . .

         II. STANDARD OF REVIEW

         A. In General

         The federal courts shall “entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws of treaties of the United States.” 28 U.S.C. § 2254(a) (emphasis added). Moreover, a petition for habeas corpus by a person in state custody:

shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim - (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d); see also Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011). Correcting errors of state law is not the province of federal habeas corpus relief. Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991). Ultimately, “[t]he statute’s design is to ‘further the principles of comity, finality, and federalism.’” Panetti v. Quarterman, 551 U.S. 930, 945, 127 S.Ct. 2842, 2854, 168 L.Ed.2d 662 (2007) (quoting Miller-El v. Cockrell, 537 U.S. 322, 337, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)). Furthermore, this standard is difficult to meet and highly deferential “for evaluating state-court rulings, [and] which demands that state-court decisions be given the benefit of the doubt.” Pinholster, 131 S.Ct. at 1398 (citations and internal quotation marks omitted).

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 110 Stat. 1214, mandates the standards for federal habeas review. See 28 U.S.C. § 2254. The “AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court.” Burt v. Titlow, __ U.S. __, 134 S.Ct. 10, 16, 187 L.Ed.2d 348 (2013). Federal courts reviewing a petition for habeas corpus must “presume the correctness of state courts’ factual findings unless applicants rebut this presumption with ‘clear and convincing evidence.’” Schriro v. Landrigan, 550 U.S. 465, 473-74, 127 S.Ct. 1933, 1940, 167 L.Ed.2d 836 (2007) (citing 28 U.S.C. § 2254(e)(1)). Moreover, on habeas review, the federal courts must consider whether the state court’s determination was unreasonable, not merely incorrect. Id., 550 U.S. at 473, 127 S.Ct. at 1939; Gulbrandson v. Ryan, 738 F.3d 976, 987 (9th Cir. 2013). Such a determination is unreasonable where a state court properly identifies the governing legal principles delineated by the Supreme Court, but when the court applies the principles to the facts before it, arrives at a different result. See Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011); Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); see also Casey v. Moore, 386 F.3d 896, 905 (9th Cir. 2004). “AEDPA requires ‘a state prisoner [to] show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error . . . beyond any possibility for fairminded disagreement.’” Burt, 134 S.Ct. at 10 (quoting Harrington, 562 U.S. at 103, 131 S.Ct. at 786-87) (alterations in original). . . . . . .

         B. Exhaustion of State Remedies

         Prior to application for a writ of habeas corpus, a person in state custody must exhaust all of the remedies available in the State courts. 28 U.S.C. § 2254(b)(1)(A). This “provides a simple and clear instruction to potential litigants: before you bring any claims to federal court, be sure that you first have taken each one to state court.” Rose v. Lundy, 455 U.S. 509, 520, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982). As such, the exhaustion doctrine gives the State “the opportunity to pass upon and correct alleged violations of its prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004) (internal quotations omitted). Moreover, “[t]he exhaustion doctrine is principally designed to protect the state courts’ role in the enforcement of federal law and prevent disruption of state judicial proceedings.” Rose, 455 U.S. at 518, 102 S.Ct. at 1203 (internal citations omitted). This upholds the doctrine of comity which “teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.” Id. (quoting Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 590, 94 L.Ed. 761 (1950)).

         Section 2254(c) provides that claims “shall not be deemed . . . exhausted” so long as the applicant “has the right under the law of the State to raise, by any available procedure the question presented.” 28 U.S.C. § 2254(c). “[O]nce the federal claim has been fairly presented to the state courts, the exhaustion requirement is satisfied.” Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). The fair presentation requirement mandates that a state prisoner must alert the state court “to the presence of a federal claim” in his petition, simply labeling a claim “federal” or expecting the state court to read beyond the four corners of the petition is insufficient. Baldwin v. Reese, 541 U.S. 27, 33, 124 S.Ct. 1347, 1351, 158 L.Ed.2d 64 (2004) (rejecting petitioner’s assertion that his claim had been “fairly presented” because his brief in the state appeals court did not indicate that “he was complaining about a violation of federal law” and the justices having the opportunity to read a lower court decision addressing the federal claims was not fair presentation); Hiivala v. Wood, 195 F.3d 1098 (9th Cir. 1999) (holding that petitioner failed to exhaust federal due process issue in state court because petitioner presented claim in state court only on state grounds). Furthermore, in order to “fairly present” one’s claims, the prisoner must do so “in each appropriate state court.” Baldwin, 541 U.S. at 29, 124 S.Ct. at 1349. “Generally, a petitioner satisfies the exhaustion requirement if he properly pursues a claim (1) throughout the entire direct appellate process of the state, or (2) throughout one entire judicial postconviction process available in the state.” Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004) (quoting Liebman & Hertz, Federal Habeas Corpus Practice and Procedure, § 23.3b (9th ed. 1998)).

         In Arizona, however, for non-capital cases “review need not be sought before the Arizona Supreme Court in order to exhaust state remedies.” Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); see also Crowell v. Knowles, 483 F.Supp.2d 925 (D. Ariz. 2007); Moreno v. Gonzalez, 192 Ariz. 131, 962 P.2d 205 (1998). Additionally, the Supreme Court has further interpreted § 2254(c) to recognize that once the state courts have ruled upon a claim, it is not necessary for an applicant to seek collateral relief for the same issues already decided upon direct review. Castille v. Peoples, 489 U.S. 346, 350, 109 S.Ct. 1056, 1060, 103 L.Ed.2d 380 (1989).

         C. Procedural Default

         “A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no state remedies any longer ‘available’ to him.” Coleman v. Thompson, 501 U.S. 722, 732, 111 S.Ct. 2546, 2555, 115 L.Ed.2d 650 (1991). Moreover, federal courts “will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Id., 501 U.S. at 728, 111 S.Ct. at 2254. This is true whether the state law basis is substantive or procedural. Id. (citations omitted). Such claims are considered procedurally barred from review. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

         The Ninth Circuit Court of Appeals explained the difference between exhaustion and procedural default as follows:

The exhaustion doctrine applies when the state court has never been presented with an opportunity to consider a petitioner’s claims and that opportunity may still be available to the petitioner under state law. In contrast, the procedural default rule barring consideration of a federal claim applies only when a state court has been presented with the federal claim, but declined to reach the issue for procedural reasons, or if it is clear that the state court would hold the claim procedurally barred. Franklin v. Johnson, 290 F.3d 1223, 1230 (9th Cir. 2002) (internal quotation marks and citations omitted). Thus, in some circumstances, a petitioner’s failure to exhaust a federal claim in state court may cause a procedural default. See Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002) (“A claim is procedurally defaulted ‘if the petitioner failed to exhaust state remedies 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.’”) (quoting Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)).

Cassett v. Stewart, 406 F.3d 614, 621 n. 5 (9th Cir. 2005). Thus, a prisoner’s habeas petition may be precluded from federal review due to procedural default in two ways. First, where the petitioner presented his claims to the state court, which denied relief based on independent and adequate state grounds. Coleman, 501 U.S. at 728, 111 S.Ct. at 2254. Federal courts are prohibited from review in such cases because they have “no power to review a state law determination that is sufficient to support the judgment, resolution of any independent federal ground for the decision could not affect the judgment and would therefore be advisory.” Id. Second, where a “petitioner failed to exhaust state remedies 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.” Id. at 735 n.1, 111 S.Ct. at 2557 n.1 (citations omitted). Thus, the federal court “must consider whether the claim could be pursued by any presently available state remedy.” Cassett, 406 F.3d at 621 n.6 (quoting Ortiz v. Stewart, 149 F.3d 923, 931 (9th Cir. 1998)) (emphasis in original).

         Where a habeas petitioner’s claims have been procedurally defaulted, the federal courts are prohibited from subsequent review unless the petitioner can show cause and actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068, 103 L.Ed.2d 334 (1989) (holding that failure to raise claims in state appellate proceeding barred federal habeas review unless petitioner demonstrated cause and prejudice); see also Smith v. Murray, 477 U.S. 527, 534, 106 S.Ct. 2661, 2666, 91 L.Ed.2d 434 (1986) (recognizing “that a federal habeas court must evaluate appellate defaults under the same standards that apply when a defendant fails to preserve a claim at trial.”). “[T]he existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986); see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally defaulting his claims of ineffective assistance of counsel, [as such] there is no basis on which to address the merits of his claims.”). In addition to cause, a habeas petitioner must show actual prejudice, meaning that he “must show not merely that the errors . . . created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Murray, 477 U.S. at 494, 106 S.Ct. at 2648 (emphasis in original) (internal quotations omitted). Without a showing of both cause and prejudice, a habeas petitioner cannot overcome the procedural default and gain review by the federal courts. Id., 106 S.Ct. at 2649.

         The Supreme Court has recognized, however, that “the cause and prejudice standard will be met in those cases where review of a state prisoner’s claim is necessary to correct ‘a fundamental miscarriage of justice.’” Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (quoting Engle v. Isaac, 456 U.S. 107, 135, 102 S.Ct. 1558, 1572-73, 71 L.Ed.2d 783 (1982)). “The fundamental miscarriage of justice exception is available ‘only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence.’” Herrara v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 862, 122 L.Ed.2d 203 (1993) (emphasis in original) (quoting Kuhlmann v. Wilson, 477 U.S. 436, 454, 106 S.Ct. 2616, 2627, 91 L.Ed.2d 364 (1986)). Thus, “‘actual innocence’ is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.” Herrara, 506 U.S. at 404, 113 S.Ct. at 862. Further, in order to demonstrate a fundamental miscarriage of justice, a habeas petitioner must “establish by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found [him] guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(B).

         In Arizona, a petitioner’s claim may be procedurally defaulted where he has waived his right to present his claim to the state court “at trial, on appeal or in any previous collateral proceeding.” Ariz. R. Crim. P. 32.2(a)(3). “If an asserted claim is of sufficient constitutional magnitude, the state must show that the defendant ‘knowingly, voluntarily and intelligently’ waived the claim.” Id., 2002 cmt. Neither Rule 32.2. nor the Arizona Supreme Court has defined claims of “sufficient constitutional magnitude” requiring personal knowledge before waiver. See id.; see also Stewart v. Smith, 202 Ariz. 446, 46 P.3d 1067 (2002). The Ninth Circuit Court of Appeals recognized that this assessment “often involves a fact-intensive inquiry” and the “Arizona state courts are better suited to make these determinations.” Cassett, 406 F.3d at 622. . . . . . . . . .

         III. STATUTE ...


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