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Johnson v. Arpaio

United States District Court, D. Arizona

January 13, 2017

Michael Devaughn Johnson, Petitioner,
v.
Joseph M Arpaio, et al., Respondents.

          ORDER

          Roslyn O. Silver Senior United States District Judge

         Petitioner filed a Petition for Writ of Habeas Corpus on August 3, 2015. (Doc. 1.) Petitioner's Amended Petition for Writ of Habeas Corpus raised three grounds for relief: (1) Petitioner was denied a fair trial when the number of jurors was reduced during trial in violation of his right to a fair jury trial; (2) Petitioner is actually innocent in light of newly discovered evidence; and (3) Petitioner was arrested without probable cause in violation of the Fourth Amendment. (Doc. 5 at 6-8.) Petitioner subsequently moved to voluntarily strike the second and third grounds for relief. (Doc. 16 at 1.)

         On August 18, 2016, Magistrate Judge Michelle H. Burns issued a Report and Recommendation (“R&R”) recommending this Court (1) grant Petitioner's motion to strike the second and third grounds for relief (Doc. 16) in light of Petitioner's submissions and the procedural status of these two grounds; (2) deny with prejudice Petitioner's first ground for relief based on procedural default; and (3) deny a Certificate of Appealability and leave to proceed in forma pauperis on appeal. (Doc. 21 at 16.) On August 29, 2016, Petitioner objected to the Magistrate Judge's R&R with regard to Petitioner's first ground for relief. (Doc. 23.)

         A district judge “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). Where any party has filed timely objections to the R&R, the district court's review of the part objected to must be de novo. Id. Here, Petitioner timely objected to the Magistrate Judge's R&R with regard to Petitioner's first ground for relief. (See Doc. 23.) After reviewing the record, the R&R, and the Petitioner's objections, the Court will adopt the R&R and supplement the R&R with the following discussion related to Petitioner's objections.

         I. DISCUSSION.

         A state prisoner must exhaust his remedies in state court before petitioning for a writ of habeas corpus in federal court. 28 U.S.C. § 2254(b)(1), (c). Proper exhaustion requires a petitioner to have fairly presented to the state court the exact federal claim by describing the factual allegations and the federal legal theory upon which his habeas claim is based. See Picard v. Connor, 404 U.S. 270, 275-78 (1971); Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (“If state courts are to be given the opportunity to correct alleged violations of prisoner's federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution.”). In the Ninth Circuit, “[i]f a petitioner fails to alert the state court to the fact that he is raising a federal constitutional claim, his federal claim is unexhausted regard[]less of its similarity to the issues raised in state court.” Casey v. Moore, 386 F.3d 896, 914 (9th Cir. 2004) (citing Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996)); see also Shumway v. Payne, 223 F.3d 982, 987-88 (9th Cir. 2000) (finding petitioner failed to exhaust her federal claim even though she previously alleged state court claims that arose from the same factual basis upon which she later rested her federal claims because “mere similarity between a claim of state and federal error is insufficient to establish exhaustion”).

         A. MAGISTRATE JUDGE'S RECOMMENDATION.

         After conducting a review of the record, the Magistrate Judge found Petitioner's first ground for relief was not exhausted because “Petitioner failed to raise the claim alleged in Ground One as a federal constitutional claim on direct appeal - and the state courts did not address it as one.” (Doc. 21 at 13.) The R&R also concluded Petitioner failed to establish grounds to excuse the procedural default and never argued a fundamental miscarriage of justice. (Id. at 12-14.)

         B. PETITIONER'S OBJECTIONS.

         Petitioner only objected to the Magistrate Judge's exhaustion holding on two bases. (Doc. 23.) First, Petitioner believed raising a structural error claim for the reduction of his jury on direct appeal constituted presenting a federal error to the state courts. (Id. at 1.) Second, Petitioner argued he exhausted his claim when he presented to state court a state claim which is identical or functionally identical to a federal claim. (Id.) The Court will address each argument in turn.

         1. Petitioner's Structural Error Claim Did Not Constitute Presenting a Federal Structural Error to the State Courts.

         “To raise the federal legal theory for purposes of exhaustion, a petitioner must simply characterize a claim as federal in nature, by either referencing specific provisions of the Constitution or citing to federal or state case law analyzing the federal constitutional issue.” Castillo v. McFadden, 399 F.3d 993, 1005-06 (9th Cir. 2004) (internal citations omitted). Here, Petitioner's direct appeal and his requests for post-conviction relief do not reference any federal constitutional provisions or federal law to support his structural error argument. Although Petitioner's objections to the Magistrate Judge's R&R cited to a Supreme Court case to support his argument that depriving him of a verdict by twelve jurors constituted a federal structural error, Petitioner never characterized his claim as federal in nature prior to his habeas petition. Thus, Petitioner's first basis for arguing he properly exhausted is unconvincing.

         2. The State Claim Argument Petitioner Presented to State Court Is Not Identical or Functionally Identical to a Federal Claim.

         Petitioner's Amended Petition for Writ of Habeas Corpus stated his first ground for relief as “denial of [P]etitioner[']s right to a fair jury trial in violation of the Sixth Amendment, and the Ariz. Const. Art. II Sec[tion] 23.” (Doc. 5 at 6.) Although Petitioner alleged in his objections that he raised the violation as a Sixth Amendment issue in addition to a violation under the Arizona state constitution, the record indicates he only raised the issue as a violation under state law. (Doc 13-3 at 11.) And in order for Petitioner ...


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