United States District Court, D. Arizona
Bernardo P. velasco United States Magistrate Judge.
before the Court is Petitioner Gregory Allen Stanhope's
pro se Petition under 28 U.S.C. § 2254 for Writ
of Habeas Corpus by a Person in State Custody. (Doc. 1). In
accordance with the provisions of 28 U.S.C. §636(c)(1),
all parties consented to proceed before a United States
Magistrate Judge to conduct any and all further proceedings
in this case, including trial and entry of a final judgment,
with direct review by the Ninth Circuit Court of Appeals if
an appeal is filed. (Doc. 19). For the following reasons, the
Court denies and dismisses Petitioner's Petition for Writ
of Habeas Corpus.
FACTUAL & PROCEDURAL BACKGROUND
was indicted in Arizona Superior Court, Pima County, cause
number CR08635, on July 6, 1982, and charged with two counts
of armed robbery, two counts of kidnapping, two counts of
aggravated assault, and one count of burglary. (Reply (Doc.
31), Exh. 1) The following factual and procedural background
is taken from the Arizona Court of Appeal's opinion on
Petitioner's direct appeal:
The appellant was found guilty by a jury of two counts each
of armed robbery, kidnapping and aggravated assault, and one
count of first degree burglary. All of these convictions
arose out of an incident at a retail sho[e] store in Tucson
on June 23, 1982. The appellant was sentenced to prison for
concurrent 21-year terms on each of the robbery counts,
concurrent 21-year terms on each of the kidnappings to be
served consecutively to the robbery sentences, and concurrent
15-year terms on each of the assaults and the burglary, the
latter three sentences to be served consecutively to the
robbery and kidnapping sentences.
State v. Stanhope, 139 Ariz. 88, 90, 676 P.2d 1146,
1148 (App. 1984). The appellate court affirmed
Petitioner's convictions and sentences. Id.
Petitioner filed four petitions for post-conviction relief
pursuant to Rule 32 of the Arizona Rules of Criminal
Procedure in the state court, and unsuccessfully petitioned
this Court for a writ of habeas corpus in March 1998.
(See Answer (Doc. 20) at 3). The Ninth Circuit
affirmed this Court's denial of habeas relief in August
2002. Stanhope v. Stewart, 2002 WL 1996510 (9th Cir.
initiated a fifth petition for post-conviction relief in
state court on June 26, 2000, that was denied in 2001.
(Answer, Exhs. A, B). In 2005, Petitioner filed a special
action in the trial court alleging due process violations
from prison disciplinary proceedings that ended in 2006.
(Answer, Exh. C). On June 1, 2005, Petitioner initiated a
sixth post-conviction proceeding in the trial court that was
denied in 2007. (Answer, Exhs. D, E.) Petitioner filed a
second petition for writ of habeas corpus in this Court in
January 2007. (See Answer at 4)). This Court found
that Petitioner's due process rights had been violated at
one prison disciplinary proceeding and ordered that the State
remedy the violation by either restoring 60 days of earned
release credits (“ERC”) or providing Petitioner a
new hearing. (See id.). On November 12, 2012, the
Ninth Circuit affirmed, and the State subsequently filed a
notice of satisfaction of judgment providing evidence that 60
days of ERC had been restored to Petitioner. (Id.).
Petitioner's appeal of this Court's decision on his
second petition for writ of habeas corpus was pending,
Petitioner filed a “Motion for Goodtime Jail Credits
Pursuant to ARS § 41-1604.07(A)” in state trial
court in February 2011. (Reply, Exh. 2). The court appointed
counsel, set a briefing schedule, and a hearing date.
(Id.). Two additional motions, unidentified in this
record, were subsequently filed by Petitioner and forwarded
to his appointed counsel, whom the court referred to as his
counsel appointed to represent him in his “Rule 32
proceedings.” (Reply, Exh. 3). On July 12, 2011,
Petitioner filed an amended motion asserting that in addition
to the ERC to which he was entitled, he was improperly denied
a commutation hearing. (Reply, Exh. 4). The procedural path
of this proceeding is discussed in more detail below.
Ultimately, the trial court denied Petitioner's request
for relief on the merits on October 17, 2012. (Answer, Exh.
P). The court further denied Petitioner's motion for
rehearing. (Answer, Exhs. Q-R).
filed a petition for review from the trial court's ruling
in the court of appeals and the appellate court granted
review but denied relief. (Answer, Exhs. S, V).
Petitioner's motion for reconsideration of the appellate
court's decision was denied. (Answer, Exhs. W-X). The
Arizona Supreme Court subsequently denied Petitioner's
petition for further review and a request for an evidentiary
hearing on December 20, 2013. (Answer, Exhs. Y-Z).
Federal Habeas Petition
filed the instant petition for writ of habeas corpus, which
is his third such proceeding in this Court, on January 8,
2014. Petitioner presents seven grounds for relief:
Ground One: “Whether the Arizona Dept of Corrections
erred in its calculation of Stanhope's earned release
credits (ERC's). Based on the 2002 amendment to the law.
The 2002 change in the law was a ‘significant change in
the law' that would affect the amount of time Stanhope
would have to spend in prison. The change in law was intended
by the Legislature to be applied retroactively, and Stanhope
had a fundamental right to have the change in law applied to
his sentence, and a due process right under the 14th Amend.
to the U.S. Constitution to have the change in law applied
properly. The ADC did not apply the newly awarded ERC's
to [Petitioner's] currently served sentence.”
Ground Two: “Whether the Arizona Dept of Corrections
(ADC) improperly denied Petitioner a timely commutation
Ground Three: “Whether the trial court erred and abused
its discretion in ruling on material facts and making
conclusions of law when deciding Petitioner['s] claims
without holding an evidentiary hearing.”
Ground Four: “Whether the claimss raised by
Petitioner were cognizable under Rule 32.”
Ground Five: “Did Stanhope factually still have more
than one year left before earliest release date
(PED-2-10-2012) when commute application was submitted on
1-18-2011? With a[n] offense date of June/1982, was the
implementation of the ‘one year to earliest release
date' rule used to exclude/deny eligibility for a commute
hearing a[n] ‘ex post facto' change in the law and
so unconstitutional when applied to Petitioner? Did AZ Atty.
General Tom Horne, Asst. Atty. General Paul E. Carter enter
into a conspiracy to coverup the fact the ADC had
miscalculated Stanhope's release date?”
Ground Six: “Is the Arizona State Court of Appeals,
Div. II's finding that Petitioner is not entitled to ERC
relief pursuant to the State Rule 32 process in conflict with
Div. I of the State Court of Appeals finding in State
v. Davis, 148 Ariz. 62, 64-65 (1985)[, ]
where they granted relief pursuant to the State Rule 32
process? Would this Court clarify that conflict?”
Ground Seven: “Was Petition[er] correct to rely on
court[-]appointed attorney Emily Danies and the Arizona State
Superior Court trial judge, that Rule 32 was the proper venue
to bring these ERC and commutation claims?”
contend that: Petitioner's Ground One should be dismissed
as a successive claim; Grounds Two through Six should be
dismissed because they are not cognizable on habeas corpus
review; and Ground Seven is procedurally defaulted.
Respondents argue, in the alternative, that Grounds One and
Two are also procedurally defaulted.
Standard of review
Petitioner's federal habeas petition was filed after
April 24, 1996, this case is governed by the Antiterrorism
and Effective Death Penalty Act of 1996,
(“AEDPA”), 28 U.S.C. § 2254 (“§
2254). Lindh v. Murphy, 521 U.S. 320, 336 (1997);
see also Woodford v. Garceau, 538 U.S. 202, 210
the AEDPA, a writ of habeas corpus cannot be granted unless
it appears that the petitioner has exhausted all available
state court remedies. 28 U.S.C. § 2254(b)(1); see
also Coleman v. Thompson, 501 U.S. 722, 731 (1991);
Rose v. Lundy, 455 U.S. 509 (1982). To exhaust state
court remedies, the petitioner must “fairly
present” his claims to the state's highest court in
a procedurally appropriate manner. O'Sullivan v.
Boerckel, 526 U.S. 838, 848 (1999). “In cases not
carrying a life sentence or the death penalty, ‘claims
of Arizona state prisoners are exhausted for purposes of
federal habeas once the Arizona Court of Appeals has ruled on
them.'” Castillo v. McFadden, 399 F.3d
993, 998 n. 3 (9th Cir.2005) (quoting Swoopes v.
Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999)).
is fairly presented if the petitioner has described the
operative facts and the federal legal theory on which his
claim is based. Anderson v. Harless, 459 U.S. 4, 6
(1982); Picard v. Connor, 404 U.S. 270, 277-78
(1971). A petitioner must clearly alert the state court that
he is alleging a specific federal constitutional violation.
See Casey v. Moore, 386 F.3d 896, 913 (9th Cir.
2004). He must make the federal basis of the claim explicit
either by citing specific provisions of federal law or
federal case law, even if the federal basis of a claim is
“self-evident, ” Gatlin v. Madding, 189
F.3d 882, 888 (9th Cir. 1999), or by citing state cases that
explicitly analyze the same federal constitutional claim,
Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir.
2003) (en banc).
Arizona, there are two procedurally appropriate avenues for
petitioners to exhaust federal constitutional claims: direct
appeal and post-conviction relief (“PCR”)
proceedings. Rule 32 of the Arizona Rules of Criminal
Procedure governs PCR proceedings and provides that a
petitioner is precluded from relief on any claim that could
have been raised on appeal or in a prior PCR petition. Ariz.
R. Crim. P. 32.2(a)(3). The preclusive effect of Rule 32.2(a)
may be avoided only if a claim falls within certain
exceptions and the petitioner can justify his omission of the
claim from a prior petition or his failure to present the
claim in a timely manner. See Ariz. R. Crim. P.
32.1(d)-(h), 32.2(b), 32.4(a).
habeas petitioner's claims may be precluded from federal
review in two ways. First, a claim may be procedurally
defaulted in federal court if it was actually raised in state
court but found by that court to be defaulted on state
procedural grounds. Coleman, 501 U.S. at 729-30.
Second, a claim may be procedurally defaulted if the
petitioner failed to present it in state court 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; see also Ortiz v. Stewart, 149 F.3d 923,
931 (9th Cir. 1998) (explaining that the district court must
consider whether the claim could be pursued by any presently
available state remedy). Therefore, in the present case, if
there are claims that were not raised previously in state
court, the Court must determine whether Petitioner has state
remedies currently available to him pursuant to Rule 32.
See Ortiz, 149 F.3d at 931. If no
remedies are currently available, Petitioner's claims are
“technically” exhausted but procedurally
defaulted. Coleman, 501 U.S. at 732, 735 n.1.
there are claims that were fairly presented in state court
but found defaulted on state procedural grounds, such claims
will be found procedurally defaulted in federal court so long
as the state procedural bar was independent of federal law
and adequate to warrant preclusion of federal review. See
Harris v. Reed, 489 U.S. 255, 262 (1989). It is well
established that Arizona's preclusion rule is independent
of federal law, see Stewart v. Smith, 536 U.S. 856,
860 (2002), and the Ninth Circuit has repeatedly determined
that Arizona regularly and consistently applies its
procedural default rules such that they are an adequate bar
to federal review of a claim. See Hurles v. Ryan,
752 F.3d 768, 780 (9thCir.), cert.
denied, 135 S.Ct. 710 (2014) (Arizona's waiver rules
are independent and adequate bases for denying relief);
Ortiz, 149 F.3d at 932 (Rule 32.2(a)(3) regularly