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Lewis v. Ryan

United States District Court, D. Arizona

February 1, 2018

Jessie Lewis, Petitioner,
v.
Charles L Ryan, et al., Respondents.

          ORDER

          JAMES A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE

         Pending before the Court is Petitioner's Petition for Writ of Habeas Corpus. The Magistrate Judge to whom this case is assigned issued a Report and Recommendation (R&R) recommending that the Petition be denied. (Doc. 15). Petitioner filed objections to the R&R. (Docs. 18 & 19).

         I. Review of R&R

         This Court “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)(1). The district court must review the magistrate's findings de novo only if a party objects to the magistrate judge's findings or recommendations. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). However, if no party objects to any fact or issue, the district court is not required to engage in “any review at all . . . .” Thomas v. Arn, 474 U.S. 140, 149 (1985).

         II. Petition for Writ of Habeas Corpus

         The Petition raises four grounds for relief. The R&R finds that Ground Two is subject to a procedural bar and that Petitioner failed to establish an excuse. The R&R further finds that, to the extent that Ground Two is not subject to a procedural bar, it is a state law claim that is not cognizable on federal habeas review. Finally, the R&R finds that Grounds One, Three, and Four are without merit.

         The R&R recounts the factual and procedural background of this case at pages 2- 4. Neither party objects to this recounting. Accordingly, the Court accepts and adopts it.

         A. Ground Two

         Petitioner focuses the bulk of his objections to the R&R on Ground Two-his claim that the Superior Court of Maricopa County did not have subject matter jurisdiction or jurisdiction over his case. (Doc. 18 at 3). The R&R concludes that because Petitioner failed to raise Ground Two on direct appeal to the Arizona Court of Appeals, Arizona Rule of Criminal Procedure 32 precludes his claim, and so his Ground Two claim is technically exhausted but procedurally barred. (Doc. 15 at 8) (citing Ariz. R. Crim. P. 32.2(a)(3)). The R&R further concludes that, even if Ground Two is not procedurally barred, Ground Two presents a state law claim that is not cognizable on federal habeas review. (Doc. 15 at 11).

         i. Ground Two is Procedurally Barred without Excuse

         A district court must reject Petitions for Writs of Habeas Corpus if a petitioner does not exhaust state remedies for his federal claims. Castille v. Peoples, 489 U.S. 346, 349 (1989) (citing Rose v. Lundy, 455 U.S. 509 (1982)). A petitioner satisfies this requirement if he “fairly presents” the federal claim to the state courts. Id. at 351. In Arizona, a petitioner satisfies this test by bringing his claim on direct review to the Arizona Court of Appeals. Castillo v. McFadden, 399 F.3d 993, 998 n.3 (9th Cir. 2004); see Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999) (“[C]laims of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.”). Furthermore, if a state procedural rule prevents the consideration of previously unraised claims, returning to state court is “useless.” Castille, 489 U.S. at 351. Although such a claim may technically be exhausted, it is nonetheless procedurally defaulted. Id.; Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002) (ruling that any unexhausted claims were procedurally defaulted because they were barred under Arizona Rule of Criminal Procedure 32).

         Federal courts may still consider the merits of a petitioner's claim if he shows “cause” for the failure to properly exhaust the state court claims and “prejudice” from the alleged constitutional violation. Coleman v. Thompson, 501 U.S. 722, 750 (1991). To establish “cause” for a procedural default, the Petitioner must “show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986).

         Petitioner objects to the R&R's conclusion that he failed to exhaust available state remedies for his claim in Ground Two. (Doc. 18 at 13). Petitioner claims that he presented his asserted grounds for relief to the Arizona Court of Appeals, and that the state courts were aware that he was raising a federal claim. (Doc. 18 at 13). Although Petitioner did raise Grounds One, Three, and Four before the Arizona Court of Appeals, he did not raise Ground Two before that court. Petitioner provides no evidence to support his claim that he presented Ground Two to the Arizona Court of Appeals on direct review. (Doc. 19 at Ex. G). Nothing in the record shows that he described “both the operative facts and the federal legal theory on which his claim is based so that the state courts [could] have a ‘fair opportunity' to apply controlling legal principles to the facts bearing on his constitutional claim.” Castillo, 399 F.3d at 999 (alteration in original) (quoting Kelly v. Small, 315 F.3d 666, 670 (9th Cir. 2003)). In fact, his Petition for a Writ of Habeas Corpus to this Court does not include Ground Two on the list of claims he brought to the Arizona Court of Appeals. (Doc. 1 at 2). As explained above, Petitioner's failure to present Ground Two to the Court of Appeals means that his claim is now procedurally barred by Arizona law. Ariz. R. Crim P. 32.2(a); Swoopes, 196 F.3d at 1010. Because the application of Rule 32 would make any return to state court “useless, ” this Court accepts the R&R's conclusion that Ground Two is technically exhausted but procedurally barred from federal habeas corpus review.[1]

         Petitioner also objects to the R&R's conclusion that Ground Two is procedurally barred because he did not “receive all his court transcripts in order to ‘fairly' file a supplement brief-an adequate brief.” (Doc. 18 at 13). But, Petitioner did in fact raise this claim during the initial trial without the transcripts he now claims were critical to making that argument. (Doc. 11, Ex. VV, at 16). As the R&R explains, this clearly shows that Petitioner could raise this argument without the allegedly missing transcripts. (Doc. 15 at 10 n.6). Furthermore, this sort of factual evidence would not be relevant to Petitioner's jurisdictional argument. Jurisdiction is a legal question, one that did not require ...


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