United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Honorable Bruce G. Macdonald United States Magistrate Judge
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.
to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure,
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).
FACTUAL AND PROCEDURAL BACKGROUND
Arizona Court of Appeal stated the facts 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.
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 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
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.
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.
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
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.”
Initial Post-Conviction Relief Proceeding
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.
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,  his ineffective assistance
of sentencing counsel claim was denied. See id.,
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. 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”).
Subsequent Post-Conviction Relief Proceeding
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. See Answer (Doc. 11), Exh.
“R” at 2. On October 26, 2012, counsel for
Petitioner filed an Anders brief with the Rule 32
court. 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.
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.
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.
The Instant Habeas Proceeding
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 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. . . . . . .
STANDARD OF REVIEW
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
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).
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). . . . . . .
Exhaustion of State Remedies
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)).
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)).
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).
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).
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
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).
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.
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).
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. . . . . . . . . .