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Salazar v. Ryan

United States District Court, D. Arizona

August 25, 2016

Noa Salazar, Petitioner,
Charles L. Ryan, et al., Respondents.


          Hon. Bruce G. Macdonald, United States Magistrate Judge.

         Currently 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.

         Also 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). . . .


         The Arizona Court of Appeal stated the facts[1] 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.

         Answer (Doc. 15), Ariz. Ct. of Appeals, Memorandum Decision 10/12/2010 (Exh. “J”) at 2.

         On 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.

         A. Direct Appeal

         On July 12, 2010, counsel for Petitioner filed an Anders[2] brief with the Arizona Court of Appeals.[3] 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.

         B. Post-Conviction Relief Proceeding

         On 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.

         On June 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.

         The 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” at 8.

         The 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.

         Regarding 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.

         On 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, [4] 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.

         D. The Instant Habeas Proceeding

         On 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).


         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, 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 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.


         As a 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. ยง ...

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