United States District Court, D. Arizona
A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE
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 &
Review of R&R
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,
Petition for Writ of Habeas Corpus
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.
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.
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).
Ground Two is Procedurally Barred without Excuse
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
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).
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.
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 ...