United States District Court, D. Arizona
Bruce G. Macdonald, United States Magistrate Judge.
pending before the Court is Petitioner Noa Salazar'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 an Answer to
Petition for Writ of Habeas Corpus (“Answer”)
(Doc. 15) and Petitioner replied (Doc. 16). The Petition is
ripe for adjudication.
pending before the Court is Petitioner's Motion to Vacate
Conviction (Doc. 19) and Petitioner's Request for Copy of
Docket and Status of Case (Doc. 22). . . .
FACTUAL AND PROCEDURAL BACKGROUND
Arizona Court of Appeal stated the facts as follows:
[W]itnesses observed Salazar as he parked his vehicle on the
wrong side of the road in a manner that impeded traffic, got
out holding and drinking an alcoholic beverage, and urinated
in the bushes of a nearby residence. Additional evidence
established that, on the same day, Salazar had an estimated
AC of .271 within two hours of driving, his license
previously had been suspended and revoked, and he had been
convicted of three felony offenses committed within the
preceding five years.
(Doc. 15), Ariz. Ct. of Appeals, Memorandum Decision
10/12/2010 (Exh. “J”) at 2.
August 28, 2008, a jury found Petitioner guilty of Aggravated
Driving Under the Influence While License is Suspended,
Revoked or in Violation of a Restriction as alleged in Count
One of the Indictment and guilty of Aggravated Driving With
an Alcohol Concentration of 0.08 or More While License is
Suspended or Revoked as alleged in Count Two of the
Indictment. Answer (Doc. 15), Ariz. Superior Ct., Pima
County, Case No. CR-20080843, Verdict Forms (Exh.
“G”) at 1-2. On March 25, 2010, Petitioner was
sentenced to two aggravated terms of twelve (12) years
imprisonment with consecutive community supervision in
accordance with A.R.S. § 13-603(I), to be served
concurrently. Answer (Doc. 15), Ariz. Superior Ct., Pima
County, Priors Trial/Sentence of Imprisonment Minute Entry
3/25/2010 (Exh. “H”) at 2-3.
12, 2010, counsel for Petitioner filed an
Anders brief with the Arizona Court of
Appeals. Answer (Doc. 15), Appellant's Opening
Br. 7/12/2010 (Exh. “I”). On October 12, 2010,
the Arizona Court of Appeals affirmed Petitioner's
conviction. Answer (Doc. 15), Ariz.Ct.App. Memorandum
Decision 10/12/2010 (Exh. “J”). The court of
appeals concluded that “substantial evidence supported
findings of all the elements necessary for Salazar's
convictions.” Id., Exh. “J” at 2
(citing A.R.S. §§ 28-1381(A)(1), (2);
28-1383(A)(1)). The court further held that
“Salazar's sentences were within the range
authorized and were imposed in a lawful manner.”
Id., Exh. “J” at 2 (citing A.R.S.
§§ 13-105(22)(c); 13-703(C), (J)). The appellate
court certified that its “examination of the record
pursuant to Anders, . . . found no reversible error
and no arguable issue warranting further appellate
review.” Id., Exh. “J” at 3.
Post-Conviction Relief Proceeding
August 9, 2010, Petitioner filed his Notice of
Post-Conviction Relief (“PCR”). Answer (Doc. 15),
Not. of PCR 8/9/2010 (Exh. “K”). On December 7,
2010, counsel for Petitioner filed a Petition for Post
Conviction Relief. See Answer (Doc. 15), Pet. for
PCR 12/7/2010 (Exh. “L”). Petitioner asserted
ineffective assistance of trial counsel, alleging that
counsel 1) failed to inform him of the trial date; and 2)
failed to adequately investigate and present mitigating
evidence at sentencing. See Answer (Doc. 15), Exh.
“L” at 7, 10-14, 16-19. Petitioner further
asserted that his Sixth Amendment right to be present at
trial was violated. Id., Exh. “L” at 7,
14-16. Finally, Petitioner asserted that the trial court
committed sentencing error based on its imposition of both
aggravated and consecutive sentences. Id., Exh.
“L” at 7, 20-24.
18, 2012, the Rule 32 court denied Petitioner's petition.
See Answer (Doc. 15), Ariz. Superior Ct., Pima
County, Under Advisement Ruling 6/18/2012 (Exh.
“M”). Prior to denial of the petition, the Rule
32 Court held an evidentiary hearing. See Answer
(Doc. 15), Exh. “M” at 3; Rule 32 Evid. Hr'g
Tr. Excerpts 3/2/2012 (Exh. “B”); Rule 32 Evid.
Hr'g Tr. - Afternoon Session Excerpts 3/2/2012 (Exh.
“C”). The Rule 32 court declined to impose on an
attorney “a duty to search for [a] client or cause an
investigation as to the defendant's whereabouts . . .
where [no such duty] is stated in the [Ethical] Rule or
Comment.” Answer (Doc. 15), Exh. “M” at 4.
The court went on to note that even if there were such a
duty, that duty would be extinguished or waived by a client
who fails to comply with release conditions including
contacting his attorney and providing contact information; a
client's failure to appear at hearings of which he had
notice; a client's whereabouts are unknown; or the court
issues a warrant for defendant's arrest before the trial.
Id., Exh. “M” at 5. The court found that
“[t]he client was prejudiced by his own actions but not
by the action or inaction of his attorney.”
Id., Exh. “M” at 5. As such, the Rule 32
court held that trial counsel was not ineffective.
Rule 32 court also recognized Petitioner's federal and
state constitutional right to be present at trial.
Id., Exh. “M” at 6. It found, however,
that “[a] defendant may waive his right to be present
at any proceeding by voluntarily absenting himself or herself
from it.” Id., Exh. “M” at 6. The
court further found that the Petitioner received court orders
and acknowledged that his failure to appear could result in
the court case and trial proceeding in his absence. Answer
(Doc. 15), Exh. “M” at 6. In light of
Petitioner's failure to contact his attorney, provide his
contact information to his attorney, or attend the Case
Management Conference, the court found that Petitioner's
“conduct was a clear, if not express, intentional,
voluntary and knowing waiver and rejection of his right to be
present at trial.” Id., Exh. “M”
Rule 32 court also denied Petitioner's ineffective
assistance of counsel claim for an alleged failure to present
additional mitigating evidence at trial. Id., Exh.
“M” at 9. The Rule 32 court determined that this
assertion of ineffectiveness arose “from an erroneous
understanding of A.R.S. 13-603 L.” Id., Exh.
“M” at 9. As such, the Rule 32 found that
“(a) counsel's representation was not below an
objective standard of reasonableness; and (b) that the
Petitioner suffered no prejudice because the mitigating
evidence, though important, does not outweigh the aggravating
factors found by the court at sentencing.”
Id., Exh. “M” at 9.
any alleged sentencing error, the Rule 32 court noted that
the “issue is arguably precluded as a matter that
should have been raised on appeal.” Answer (Doc. 15),
Exh. “M” at 10 (citing Ariz. R. Crim. P.
32.2(a)(1)). The court considered the merits and held that
“[t]he requirement that the sentence in this case run
consecutive to the Maricopa case was a conscious exercise of
this court's discretion . . . [not] from a default
designation of consecutive sentences pursuant [to] Rule
26.13.” Id., Exh. “M” at 10.
September 5, 2012, Petitioner filed a Petition for Review to
the Arizona Court of Appeals. Answer (Doc. 15), Pet. for
Review to the Ariz. Ct. of Appeals 9/5/2012 (Exh.
“N”). Petitioner alleged that “trial
counsel failed to advise Petitioner of his trial date, and
did not conduct an adequate investigation into
Petitioner's whereabouts before trial in order to assure
his presence at trial” in violation of
Strickland,  Arizona ethical rules, and the Due Process
Clause. Answer (Doc. 15), Exh. “N” at 15-16. On
January 9, 2013, the Arizona Court of Appeals granted review,
but denied relief. See Answer (Doc. 15), Ariz. Ct.
of Appeals, Mem. Decision 1/9/2013 (Exh. “O”).
The court of appeals relied on Arizona law and gave the Rule
32 court's factual findings deference. Id., Exh.
“O” at 3. The appellate court recognized
“an out-of-custody defendant's duty to maintain
contact with his or her attorney and to appear in
court.” Id., Exh. “O” at 3 (citing
State v. Muniz-Caudillo, 185 Ariz. 261, 262, 914
P.2d 1353, 1354 (Ct. App. 1996)). Accordingly, the court of
appeals concluded that there was no error in the Rule 32
court's findings “that counsel's performance
was not deficient and that Salazar's right to be present
at trial was not violated.” Id., Exh.
“O” at 3. On July 23, 2013, the Arizona Supreme
Court denied review. Answer (Doc. 15), Ariz. Supreme Ct.
Minute Entry 7/23/2013 (Exh. “P”) at 1.
The Instant Habeas Proceeding
October 28, 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
two (2) grounds for relief. First, Petitioner argues that
trial “counsel was prejudicially ineffective, violating
the Constitutional Guarantee of reasonable competence and
undivided loyalty by abandoning his client's cause and
join[ing] the Prosecution by advising, directing and
representing to the Court to proceed with trial in his
client's absence when the Court offered counsel 4 hours
to contact and produce his client before trial
commenced.” Petition (Doc. 1) at 6. Second, Petitioner
alleges that his “Due Process Rights were violated when
he was unreasonably denied the right to be present for jury
trial because of his lawyer's intentional conduct to
prejudice him by refusing to even attempt to contact Salazar
with notice that trial was commencing.” Id. at
7. On February 5, 2014, Respondents filed their Answer (Doc.
15). On February 13, 2014, Petitioner replied (Doc. 16).
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, 181, 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, 563 U.S. at 181,
131 S.Ct. at 1398 (citations and internal quotation marks
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.
STATUTE OF LIMITATIONS
threshold matter, the Court must consider whether
Petitioner's petition is barred by the statute of
limitation. See White v. Klizkie, 281 F.3d 920,
921-22 (9th Cir. 2002). The AEDPA mandates that a one-year
statute of limitations applies to applications for a writ of
habeas corpus by a person in state custody. 28 U.S.C. §