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Brown v. Ryan

United States District Court, D. Arizona

December 28, 2017

Heulon Brown, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          ORDER

          Honorable Lynette C. Kimmins United States Magistrate Judge.

         Petitioner Heulon Brown has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Before the Court are the Petition (Doc. 1), Respondents' Answer (Doc. 10), and Petitioner's Reply and three supplements (Docs. 18-21, 26). The parties have consented to Magistrate Judge jurisdiction. (Doc. 14.)

         FACTUAL AND PROCEDURAL BACKGROUND

         Brown was convicted in the Pima County Superior Court on one count of first-degree murder; one count of first-degree burglary; two counts of aggravated assault of a minor under fifteen; three counts of aggravated assault, deadly weapon/dangerous instrument, firearm; and four counts of attempted armed robbery. (Doc. 10, Ex. B.) Brown was sentenced to concurrent prison terms, the longest of which is twenty-five years to life. (Id.)

         The Arizona Court of Appeals summarized the facts in support of Brown's convictions:

One evening in August 2010, four armed, masked men, including Brown, went to the door of an apartment and a fifth man, E.V., who was not masked, was forced to enter the apartment at gunpoint ahead of them. Immediately after opening the door, E.V., who was known to the apartment's occupants, dropped to the floor, placed his hands on his head, and curled into a ball while the gunmen ordered the occupants to “get on the ground.” One of those occupants, J.J., had a gun and shot at the masked men, killing Michael White and injuring Brown. During the exchange, J.J. and A.B., a minor who was in the apartment, also were shot and injured.

(Id., Ex. C at 2.)

         Brown appealed and the Arizona Court of Appeals affirmed his convictions and sentences. (Id., Exs. C, E, H.) Brown's Petition for Review to the Arizona Supreme Court was denied. (Id., Exs. K, M.) Brown filed a Notice of Post-conviction Relief (PCR). (Id., Ex. N.) He subsequently withdrew the notice because an investigator was unable to locate witness Eduardo Vega, who was the intended source of newly discovered evidence that Brown intended to present in a PCR proceeding. (Id., Ex. O.)

         DISCUSSION

         Brown raises six claims. (Doc. 1.) Respondents contend Claim 4 is procedurally defaulted, and the Court will first examine whether that claim is properly exhausted. Respondents concede the remainder of the claims were properly exhausted and the Court will review them on the merits.

         EXHAUSTION

         Principles of Exhaustion and Procedural Default

         A writ of habeas corpus may not be granted unless it appears that a 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). To properly exhaust, a petitioner must “fairly present” the operative facts and the federal legal theory of his claims to the state's highest court in a procedurally appropriate manner. O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999); Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 277-78 (1971).

         In Arizona, there are two primary procedurally appropriate avenues for petitioners to exhaust federal constitutional claims: direct appeal and PCR proceedings. 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.” Coleman, 501 U.S. at 735 n.1; see also Ortiz v. Stewart, 149 F.3d 923, 931 (9th Cir. 1998) (stating that the district court must consider whether the claim could be pursued by any presently available state remedy). If no remedies are currently available pursuant to Rule 32, the claim is “technically” exhausted but procedurally defaulted. Coleman, 501 U.S. at 732, 735 n.1; see also Gray v. Netherland, 518 U.S. 152, 161-62 (1996).

         Because the doctrine of procedural default is based on comity, not jurisdiction, federal courts retain the power to consider the merits of procedurally defaulted claims. Reed v. Ross, 468 U.S. 1, 9 (1984). However, the Court will not review the merits of a procedurally defaulted claim unless a petitioner demonstrates legitimate cause for the failure to properly exhaust the claim in state court and prejudice from the alleged constitutional violation, or shows that a fundamental miscarriage of justice would result if the claim were not heard on the merits in federal court. Coleman, 501 U.S. at 750.

         Claim 4

         Brown alleges that Arizona's felony murder statute is unconstitutional because, in his case, its application was premised upon the justifiable shooting of an intruder by a victim.[1]

         In his opening appellate brief, Brown argued that Arizona's felony murder statute violated Due Process and the Eighth Amendment prohibition on excessive sentences. (Doc. 10, Ex. E at 25.) Citing to other states, Brown argued that felony murder should require a mens rea more than that of the underlying felony and that the death must occur in furtherance of the felony. (Id. at 26-27.) He also relied upon the principle that more severe punishment is warranted for those that intentionally cause harm. (Id. at 28 (citing Enmund v. Florida, 458 U.S. 782, 798 (1980).)

         It is debatable whether Brown fairly presented Claim 4 to the Arizona Court of Appeals. It was not articulated to that court in the same way it is presented in his habeas petition. However, in his appellate brief he cites to other states that have restricted felony murder to killings by the felon or co-felons, rejecting it for a justifiable killing of one of the felons. (Doc. 10, Ex. E at 26-28.) Further, the Court of Appeals addressed this factual argument in its ruling. (Id., Ex. C at 18.) Regardless of exhaustion, below, the Court will address the claim on the merits.

         MERITS

         Legal Standards for Relief under the AEDPA

         The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) created a “highly deferential standard for evaluating state-court rulings' . . . demand[ing] that state-court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n. 7 (1997)). Under the AEDPA, a petitioner is not entitled to habeas relief on any claim “adjudicated on the merits” by the state court unless that adjudication:

(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). The last relevant state court decision is the last reasoned state decision regarding a claim. Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991)); Insyxiengmay v. Morgan, 403 F.3d 657, 664 (9th Cir. 2005).

         “The threshold test under AEDPA is whether [the petitioner] seeks to apply a rule of law that was clearly established at the time his state-court conviction became final.” Williams v. Taylor, 529 U.S. 362, 390 (2000). Therefore, to assess a claim under subsection (d)(1), the Court must first identify the “clearly established Federal law, ” if any, that governs the sufficiency of the claims on habeas review. “Clearly established” federal law consists of the holdings of the Supreme Court at the time the petitioner's state court conviction became final. Williams, 529 U.S. at 365; see Carey v. Musladin, 549 U.S. 70, 74 (2006).

         The Supreme Court has provided guidance in applying each prong of § 2254(d)(1). The Court has explained that a state court decision is “contrary to” the Supreme Court's clearly established precedents if the decision applies a rule that contradicts the governing law set forth in those precedents, thereby reaching a conclusion opposite to that reached by the Supreme Court on a matter of law, or if it confronts a set of facts that is materially indistinguishable from a decision of the Supreme Court but reaches a different result. Williams, 529 U.S. at 405-06; see Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam). Under the “unreasonable application” prong of § 2254(d)(1), a federal habeas court may grant relief where a state court “identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular . . . case” or “unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend the principle to a new context where it should apply.” Williams, 529 U.S. at 407. For a federal court to find a state court's application of Supreme Court precedent “unreasonable, ” the petitioner must show that the state court's decision was not merely incorrect or erroneous, but “objectively unreasonable.” Id. at 409; Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Visciotti, 537 U.S. at 25. “A state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘“fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington v. Richter, 131 S.Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

         Under the standard set forth in § 2254(d)(2), habeas relief is available only if the state court decision was based on an unreasonable determination of the facts. Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (Miller-El II). In considering a challenge under § 2254(d)(2), state court factual determinations are presumed to be correct, and a petitioner bears the “burden of rebutting this presumption by clear and ...


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