United States District Court, D. Arizona
S, WILLETT UNITED STATES MAGISTRATE JUDGE.
REPORT AND RECOMMENDATION
HON. JAMES A. TEILBORG, SENIOR UNITED STATES DISTRICT JUDGE.
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),  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.
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). 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).
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.
timely initiated this federal habeas proceeding on April 24,
2017. (Doc. 1).
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