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Cicero v. Ryan

United States District Court, D. Arizona

March 12, 2018

Michael Cicero, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          EILEEN S, WILLETT UNITED STATES MAGISTRATE JUDGE.

          REPORT AND RECOMMENDATION

          TO THE HON. JAMES A. TEILBORG, SENIOR UNITED STATES DISTRICT JUDGE.

         Pending before the Court is Michael Cicero'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, 12), [1] 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.

         I. BACKGROUND

         On February 22, 2016, Petitioner pled guilty to (i) two counts of aggravated assault, a class 3 dangerous felony; (ii) one count of possession of narcotic drugs for sale, a class 2 non-dangerous felony, with two prior convictions; and (iii) one count of misconduct involving weapons, a class 4 non-dangerous felony, with two prior convictions. (Bates No. 32-39).[2] At a March 28, 2016 sentencing hearing, the trial court sentenced Petitioner to a combined prison term of 15.75 years. (Bates No. 49-53).

         On May 20, 2016, Petitioner filed an of-right Notice of Post-Conviction Relief (“PCR”). (Bates No. 60-62). The trial court appointed PCR counsel, who could not find any colorable claims. (Bates No. 64-69). Petitioner filed a pro se PCR Petition, which the trial court dismissed on January 27, 2017. (Bates No. 71-75, 91). Petitioner did not petition the Arizona Court of Appeals for review of the trial court's ruling.

         Petitioner timely initiated this federal habeas proceeding on April 24, 2017. (Doc. 1).

         II. LEGAL STANDARDS

         A. Exhaustion-of-State-Remedies Doctrine

         It has 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).

         The 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).

         Case 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).

         “[T]o 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 claim”).

         B. Procedural ...


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