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Fontenot v. Ryan

United States District Court, D. Arizona

December 19, 2017

Derrick Berry Fontenot, Petitioner,
v.
Charles Ryan, et al., Respondents.

          REPORT AND RECOMMENDATION

          ERIC J. MAKOVICH UNITED STATES MAGISTRATE JUDGE

         Petitioner 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.

         Pursuant 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 Corpus.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On 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.

         The 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 County.

(Doc. 15 Ex. BB).

         Following 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).

         In 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).

         Petitioner 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).

         II. STANDARD OF REVIEW

         The 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”).

         A. ...


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