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Alonso v. Ryan

United States District Court, D. Arizona

March 8, 2018

Christopher Alonso, Petitioner,
v.
Charles L Ryan, et al., Respondents.

          ORDER

          James A. Teilborg, Senior United States District Judge

         Pending before the Court is Petitioner's Amended Petition for Writ of Habeas Corpus. The Magistrate Judge to whom this case was assigned issued a Report and Recommendation (“R&R”) recommending that the Amended Petition be denied. (Doc. 87). Petitioner filed objections to the R&R. (Doc. 98).

         I. Review

         A. 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). It is “clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that de novo review of factual and legal issues is required if objections are made, ‘but not otherwise.'”); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 1027, 1032 (9th Cir. 2009) (the district court “must review de novo the portions of the [Magistrate Judge's] recommendations to which the parties object.”). District courts are not required to conduct “any review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28 U.S.C. § 636(b)(1) (“the court shall make a de novo determination of those portions of the [report and recommendation] to which objection is made.”).

         As indicated above, Petitioner has now filed objections to the R&R. Accordingly, the Court will review the portions of the R&R to which there is an objection de novo.

         B. Review of State Court Decisions

         The Petition in this case was filed under 28 U.S.C. § 2254 because Petitioner is incarcerated based on a state conviction. With respect to any claims that Petitioner exhausted before the state courts, under 28 U.S.C. §§ 2254(d)(1) and (2) this Court must deny the Petition on those claims unless “a state court decision is contrary to, or involved an unreasonable application of, clearly established Federal law”[1] or was based on an unreasonable determination of the facts. See Lockyer v. Andrade, 538 U.S. 63, 71 (2003). Further, this Court must presume the correctness of the state court's factual findings regarding a petitioner's claims. 28 U.S.C. § 2254(e)(1); Ortiz v. Stewart, 149 F.3d 923, 936 (9th Cir. 1998). Additionally, “[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(2).

         II. Factual Background

         The R&R recounts the factual and procedural background of this case at pages 2- 7. Other than in the context of specific legal arguments discussed below, neither party objects generally to this recounting; accordingly, the Court accepts and adopts it.

         III. Petition for Writ of Habeas Corpus

         The Amended Petition (Doc. 5) raises thirteen grounds for relief. Each of the thirteen grounds for relief are premised upon a retroactive change in Arizona law (SB 1449), which altered the burden of proof for self-defense claims. The R&R finds that Petitioner's claims are technically exhausted but procedurally defaulted due to Petitioner's failure to appropriately raise his SB 1449 self-defense claims on direct appeal or during post-conviction relief proceedings. The R&R then finds that Petitioner's claims of ineffective assistance of counsel do not excuse the procedural default. Likewise, the R&R finds the default is not excused by a demonstration of a “fundamental miscarriage of justice” because Petitioner failed to demonstrate actual innocence. This Court agrees that Petitioner's claims are procedurally defaulted without excuse. Finally, under a merits review, the R&R concludes that Petitioner's self-defense claims fail as a matter of federal law and this Court agrees.

         IV. Petitioner's Claims are Procedurally Defaulted

         A. Exhaustion and Procedural Default

         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. Procedural default occurs when a petitioner has never presented a federal habeas claim in state court and is now barred from doing so by the state's procedural rules, including rules regarding waiver and the preclusion of claims. See Castille, 489 U.S. at 351-52; Johnson v. Lewis, 929 F.2d 460, 462 (9th Cir. 1991). Procedural default also occurs when a petitioner did present a claim to the state courts, but the state courts did not address the merits of the claim because the petitioner failed to follow a state procedural rule, including rules regarding waiver and the preclusion of claims. See, e.g., Ylst v. Nunnemaker, 501 U.S. 797, 802 (1991); Coleman v. Thompson, 501 U.S. 722, 727-28 (1991); Ellis v. Armenakis, 222 F.3d 627, 632 (9th Cir. 2000); Szabo v. Walls, 313 F.3d 392, 395 (7th Cir. 2002).

         The R&R finds that Petitioner's claims are technically exhausted but procedurally defaulted because of Petitioner's failure to appropriately raise his SB 1449 self-defense claims on direct appeal or during his post-conviction relief proceedings. (Doc. 87 at 10- 11). Petitioner objects to the Magistrate Judge's conclusion that his claims are procedurally defaulted because Petitioner claims he properly raised the SB 1449 issues in his state habeas corpus petition. (Doc. 98 at 14-15). In his objection Petitioner relies on State v. Manning to argue that, under Arizona law, issues not raised on direct appeal or during Rule 32 post-conviction relief proceedings may be raised independently during a state habeas corpus proceeding if the “post-conviction attacks” are not specified under Rule 32. (Doc. 98 at 14).

         In State v. Manning, the Arizona Court of Appeals held that a “challenge to a parole revocation is not within the scope of amended Rule 32.” 143 Ariz. 139, 140 (App. 1984). In reaching its holding, the Arizona Court of Appeals explained that Rule 32 was amended in 1975 and the amendment removed certain language concerning probation and parole. Id. After holding that parole revocation was not within the scope of Rule 32, the court concluded its opinion by stating “if a person in such circumstances does not assert a specific ground designated by Rule 32 . . . then his claim falls outside the scope of a petition for post-conviction relief and his remedy is to file a petition for writ of habeas corpus.” Id. at 141. However, unlike Manning, the instant case concerns the passage of SB 1449 and its retroactive effect. A new law, like SB 1449, would arguably fall directly under Rule 32.1(g) as a “significant change in the law that, if applied to the defendant's case, would probably overturn the defendant's conviction or sentence[.]” Ariz. R. Crim. P. 32.1(g). Moreover, Petitioner's constitutional and jurisdictional claims related to the enactment of SB 1449, likewise, fall under Rule 32.1(a) and Rule 32.1(b). See Ariz. R. Crim. P. 32.1(a), (b) (where grounds for relief include “[t]he conviction or the sentence was in violation of the Constitution of the United States or of the State of Arizona” and “[t]he court was without jurisdiction to render judgment or to ...


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