United States District Court, D. Arizona
REPORT AND RECOMMENDATION
S. WILLETT, UNITED STATES MAGISTRATE JUDGE
THE HON. ROSLYN O. SILVER, SENIOR UNITED STATES DISTRICT
before the Court is Daniel Horton's
(“Petitioner”) “Petition under 28 U.S.C.
§ 2254 for a Writ of Habeas Corpus” (the
“Petition”) (Doc. 1). After reviewing the
parties' briefing (Docs. 1, 16),  the undersigned finds that
Petitioner's habeas claims are procedurally defaulted
without excuse. It is therefore recommended that the Court
dismiss the Petition with prejudice.
March 2013, a jury sitting in the Superior Court of Arizona
in and for Maricopa County convicted Petitioner on two counts
of aggravated assault. (Bates No. 476-77).The trial court
sentenced Petitioner to two concurrent five-year prison
terms. (Bates No. 9-10). On March 8, 2016, the Arizona Court
of Appeals modified Petitioner's convictions to attempted
aggravated assault and remanded the case to the trial court
for resentencing. (Bates No. 59-64). At the June 1, 2016
resentencing hearing, the trial court sentenced Petitioner to
two four-year concurrent prison terms. (Attachment 1).
21, 2016, Petitioner filed a Notice of Post-Conviction Relief
(“PCR”). (Bates No. 65-68). The trial court
appointed PCR counsel, who could not find any colorable
claims. (Bates No. 69-71). Petitioner filed a pro se PCR
Petition, which the trial court summarily dismissed on
November 8, 2016. (Bates No. 74-78, 83-84). Petitioner did
not petition the Arizona Court of Appeals for review of the
trial court's ruling.
timely initiated this federal habeas proceeding on September
15, 2016. (Doc. 1).
Legal Standards Regarding Procedurally Defaulted Habeas
been settled for over a century that a “state prisoner
must normally exhaust available state remedies before a writ
of habeas corpus can be granted by the federal courts.”
Duckworth v. Serrano, 454 U.S. 1, 3 (1981); see
also Picard v. Connor, 404 U.S. 270, 275 (1971)
(“It has been settled since Ex parte Royall,
117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886), that a state
prisoner must normally exhaust available state judicial
remedies before a federal court will entertain his petition
for habeas corpus.”). The rationale for the
doctrine relates to the policy of federal-state comity.
Picard, 404 U.S. at 275 (1971). The comity policy is
designed to give a state the initial opportunity to review
and correct alleged federal rights violations of its state
prisoners. Id. In the U.S. Supreme Court's
words, “it would be unseemly in our dual system of
government for a federal district court to upset a state
court conviction without an opportunity to the state courts
to correct a constitutional violation.” Darr v.
Burford, 339 U.S. 200, 204 (1950).
exhaustion doctrine is codified at 28 U.S.C. § 2254.
That statute provides that a habeas petition may not be
granted unless the petitioner has (i) “exhausted”
the available state court remedies; (ii) shown that there is
an “absence of available State corrective
process”; or (iii) shown that “circumstances
exist that render such process ineffective to protect the
rights of the applicant.” 28 U.S.C. § 2254(b)(1).
law has clarified that in order to “exhaust”
state court remedies, a petitioner's federal claims must
have been “fully and fairly presented” in state
court. Woods v. Sinclair, 764 F.3d 1109, 1129 (9th
Cir. 2014). To “fully and fairly present” a
federal claim, a petitioner must present both (i) the
operative facts and (ii) the federal legal theory on which
his or her claim is based. This test turns on whether a
petitioner “explicitly alerted” a state court
that he or she was making a federal constitutional claim.
Galvan v. Alaska Department of Corrections, 397 F.3d
1198, 1204-05 (9th Cir. 2005).
exhaust one's state court remedies in Arizona, a
petitioner must first raise the claim in a direct appeal or
collaterally attack his conviction in a petition for
post-conviction relief pursuant to Rule 32.”
Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir.
1994). Claims that have been presented to the trial court,
but not to the Arizona Court of Appeals are not exhausted.
Castillo v. McFadden, 399 F.3d 993, 998 n.3 (9th
Cir. 2005) (in noncapital cases, “claims of Arizona
state prisoners are exhausted for purposes of federal habeas
once the Arizona Court of Appeals has ruled on them”)
(quoting Swoopes v. Sublett, 196 F.3d 1008, 1010
(9th Cir. 1999)); Baldwin v. Reese, 541 U.S. 27, 29
(2004) (“To provide the State with the necessary
‘opportunity, ' the prisoner must ‘fairly
present' his claim in each appropriate state court . . .
thereby alerting that court to the federal nature of the
Procedural Default Doctrine
claim was presented in state court, and the court expressly
invoked a state procedural rule in denying relief, then the
claim is procedurally defaulted in a federal habeas
proceeding. See, e.g., Zichko v. Idaho, 247 F.3d
1015, 1021 (9th Cir. 2001). Even if a claim was not presented
in state court, a claim may be procedurally defaulted in a
federal habeas proceeding if the claim would now be barred in
state court under the state's procedural rules. See,
e.g., Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir.
to the rationale of the exhaustion doctrine, the procedural
default doctrine is rooted in the general principle that
federal courts will not disturb state court judgments based
on adequate and independent state grounds. Dretke v.
Haley, 541 U.S. 386, 392 (2004). A habeas petitioner who
has failed to meet the state's procedural requirements
for presenting his or her federal claims has deprived the
state courts of an opportunity to address those claims in the
first instance. Coleman v. Thompson, 501 U.S. 722,
alluded to above, a procedural default determination requires
a finding that the relevant state procedural rule is an
adequate and independent rule. See id. at 729-30. An
adequate and independent state rule is clear, consistently
applied, and well-established at the time of a
petitioner's purported default. Greenway v.
Schriro, 653 F.3d 790, 797-98 (9th Cir. 2011); see
also Calderon v. U.S. Dist. Court (Hayes), 103 F.3d 72,
74-75 (9th Cir. 1996). An independent state rule cannot be
interwoven with federal law. See Ake v. Oklahoma,
470 U.S. 68, 75 (1985). The ultimate burden of proving the
adequacy of a state procedural bar is on the state.
Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir.
2003). If the state meets its burden, a petitioner may
overcome a procedural default by proving one of two
first exception, the petitioner must show cause for the
default and actual prejudice as a result of the alleged
violation of federal law. Hurles v. Ryan, 752 F.3d
768, 780 (9th Cir. 2014). To demonstrate “cause,
” a petitioner must show that some objective factor
external to the petitioner impeded his or her efforts to
comply with the state's procedural rules. See Murray
v. Carrier, 477 U.S. 478, 488 (1986); Robinson v.
Ignacio, 360 F.3d 1044, 1052 (9th Cir. 2004). To
demonstrate “prejudice, ” the petitioner must
show that the alleged constitutional violation “worked
to his actual and substantial disadvantage, infecting his
entire trial with error of constitutional dimensions.”
United States v. Frady, 456 U.S. 152, 170 (1982);
see also Carrier, 477 U.S. at 494 (“Such a
showing of pervasive actual prejudice can hardly be thought
to constitute anything other than a showing that the prisoner
was denied ‘fundamental fairness' at
second exception, a petitioner must show that the failure to
consider the federal claim will result in a fundamental
miscarriage of justice. Hurles, 752 F.3d at 780.
This exception is rare and only applied in extraordinary
cases. Schlup v. Delo, 513 U.S. 298, 321 (1995). The
exception occurs where a “constitutional violation has
probably resulted in the conviction of ...