United States District Court, D. Arizona
REPORT AND RECOMMENDATION
J. MAKOVICH UNITED STATES MAGISTRATE JUDGE
Derrick Berry Fontenot filed a pro se petition for a Writ of
Habeas Corpus (“PWHC”) pursuant to 28 U.S.C.
§ 2254 challenging his convictions for aggravated
driving under the influence while license is suspended or
revoked and aggravated driving while license is suspended or
revoked. (Doc. 1). Petitioner raises one ground for relief
alleging that his Fifth Amendment due process rights were
violated when: a) arresting officers continued to ask him
questions after he invoked his right to counsel; b) the
breath test was administered after he invoked his right to
counsel and the results were used to convict him; c) his
request for an independent blood test was denied; and d) the
Intoxilyzer machine was not accurate. Respondents filed an
Answer contending that while most of Petitioner's claims
are exhausted, Petitioner did not properly exhaust his claim
regarding the accuracy of the Intoxilyzer on his direct
appeal. Respondents assert that Petitioner has failed to show
cause and prejudice for the procedural default of this claim,
and further argue that all of Petitioner's claims should
be denied on the merits.
to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure,
this matter was referred to Magistrate Judge Markovich for a
Report and Recommendation. The undersigned finds that
Petitioner failed to properly present his claims in Ground
One to the Arizona Court of Appeals (“COA”)
because Petitioner failed to allege a federal legal basis for
the claims; thus, the claims are procedurally defaulted and
barred from this Court's review. The undersigned further
finds that Petitioner does not demonstrate cause and
prejudice or a fundamental miscarriage of justice to excuse
the procedural default of his claims. Accordingly, the
Magistrate Judge recommends that the District Court deny the
Petition under 28 U.S.C. § 2254 for a Writ of Habeas
FACTUAL AND PROCEDURAL BACKGROUND
February 24, 2014, a Pima County Superior Court jury found
Petitioner guilty of aggravated driving under the influence
while license is suspended or revoked and aggravated driving
while license is suspended or revoked. (Doc. 15 Ex. O).
Petitioner was sentenced to 8 years imprisonment.
Id. at Ex. V.
Arizona COA summarized the facts of the case as follows:
In April 2013, police officers stopped Fontenot's vehicle
for an expired license tag, and Fontenot admitted his driver
license was suspended. Fontenot exhibited several signs of
intoxication and officers discovered an open bottle of
whiskey in his vehicle. An officer administered
field-sobriety tests, and Fontenot exhibited numerous
intoxication cues. Subsequent breath testing showed his AC to
be .132 and .134. The evidence also supported the jury's
determination that, when Fontenot committed the instant
offenses, he was on release in a pending matter in Maricopa
(Doc. 15 Ex. BB).
his conviction, Petitioner sought review in the Arizona COA.
Appointed counsel filed an Anders brief stating that
she had reviewed the record in the case and found no
questions of law, and requested the court review the record
for fundamental error. (Doc. 15 Ex. W). Petitioner then filed
a pro se supplemental brief requesting that the COA review
the record for fundamental error and find that the trial
court did not establish a proper factual basis for the guilty
verdict. (Doc. 15 Ex. X). Specifically, Petitioner argued
that he should have been given access to counsel early in the
DUI investigation, and that he would not have been talked out
of an independent blood test if he had counsel present.
Petitioner also argued that an elements test was necessary to
allow the prosecutor to use Petitioner's prior
convictions to increase his sentencing range. The COA then
ordered counsel for Petitioner and the State to file
simultaneous briefs addressing whether the trial court erred
by sentencing Petitioner as a category three repetitive
offender. (Doc. 15 Ex. Y). Appointed counsel argued that the
trial court incorrectly found that one of Petitioner's
priors was proven as a prior felony conviction and requested
the COA remand for resentencing. (Doc. 15 Ex. Z). The State
conceded error and also requested a remand for resentencing.
(Doc. 15 Ex. AA).
considering Petitioner's argument that the trial court
erred in denying his motion to suppress evidence, the COA
found that Petitioner made a limited invocation of his right
to counsel and that officers confirmed that Petitioner only
wanted counsel before questioning but not before testing.
(Doc. 15 Ex. BB). The COA therefore concluded that there was
no basis to find that the trial court abused its discretion
in denying the motion to suppress the results of the
breathalyzer. As to Petitioner's sentencing claim, the
COA affirmed Petitioner's convictions but vacated the
sentences imposed and remanded for resentencing. The trial
court then resentenced Petitioner to two concurrent 5 year
terms. (Doc. 15 Ex. CC).
did not file a Petition for Review with the Arizona Supreme
Court, nor did Petitioner file a Rule 32 Petition for
post-conviction relief. Petitioner filed his PWHC in this
Court on March 6, 2015. (Doc. 1).
STANDARD OF REVIEW
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) limits the federal court's power to
grant a petition for a writ of habeas corpus on behalf of a
state prisoner. First, the federal court may only consider
petitions alleging that a person is in state custody
“in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2254(a).
Sections 2254(b) and (c) provide that the federal courts may
not grant habeas corpus relief, with some exceptions, unless
the petitioner exhausted state remedies. Additionally, if the
petition includes a claim that was adjudicated on the merits
in state court proceedings, federal court review is limited
by § 2254(d). Finally, even if a constitutional error is
found, a petitioner is not entitled to relief if the error
was harmless. Brecht v. Abrahamson, 507 U.S. 619,
637-38 (1993) (on collateral review in § 2254 cases,
court will deem an error harmless unless it had a
“substantial and injurious effect or influence in
determining the jury's verdict”).