United States District Court, D. Arizona
ORDER
James
A. Teilborg Senior United States District Judge
Pending
before the Court is Petitioner's pro se Petition
for a Writ of Habeas Corpus under 28 U.S.C. § 2254.
(Doc. 1). The Magistrate Judge to whom this case is assigned
issued a Report and Recommendation (R&R) recommending
that the Petition be denied. (Doc. 8). Petitioner filed
objections to the R&R. (Docs. 13 & 15).
I.
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). The district court
must review the magistrate's findings de novo
only if a party objects to the magistrate'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, 149 (1985). Therefore,
the Court will review the objected-to recommendations de
novo.
II.
Petition for Writ of Habeas Corpus
The
Petitioner raises one ground for relief in his timely
petition. The R&R finds that the Petitioner's claim
is procedurally defaulted without excuse. The R&R
recounts the factual and procedural background of this case
at pages 1-4. Neither party objects to this recounting.
Accordingly, the Court accepts and adopts it.
Petitioner
claims that “imposition of a mandated consecutive term
of community supervision to a flat-time term of confinement
constitutes being punished twice for the same offense,
” in violation of his Fifth Amendment right against
Double Jeopardy (Doc. 1 at 6). The R&R concludes that
because Petitioner failed to raise the present claim in his
direct appeal to the Arizona Court of Appeals, 28 U.S.C.
§ 2254(b) precludes his claim from being brought in
federal court and it is procedurally defaulted without excuse
(Doc. 8 at 3).
A.
Petitioner's Claim for Relief is Procedurally
Defaulted
An
application for a writ of habeas corpus shall not be granted
unless is appears that “the applicant has exhausted the
remedies available in the courts of the State.” 28
U.S.C. § 2254(b)(1)(A). “An applicant shall not be
deemed to have exhausted the remedies available in the courts
of the State, within the meaning of the section, if he has
the right under the law of the State to raise, by any
available procedure, the question presented.” 28 U.S.C.
§ 2254(c). A state prisoner must exhaust available state
remedies, in order to give the state the “opportunity
to pass upon and correct” alleged violations of its
prisoners' federal rights. Baldwin v. Reese, 541
U.S. 27, 29 (2004). To provide the state with this
opportunity, the prisoner must “fairly present”
his claim to the state's highest court. Id. This
thereby alerts the state court to the federal nature of the
claim. Id. A claim is not “fairly
presented” if the judges of the highest court in the
state can discover the claim only by reading the lower court
opinions in the case. Id. at 31. To be “fairly
presented” a claim must be presented (1) in the proper
forum, (2) through the proper vehicle, and (3) with the
proper factual and legal basis for the claim.
Insyxiemngmay v. Morgan, 403 F.3d 657, 668 (9th Cir.
2005).
Petitioner
objects to the R&R's conclusion that his claim for
relief is procedurally defaulted. (Doc. 13 at 2). Petitioner
alleges a violation of his due process rights during his
post-conviction-review (“PCR”) proceedings when
the Superior Court denied him an evidentiary hearing on
whether his sentence exceeded the maximum allowed in the
sentencing statute. (Id.) Accordingly, Petitioner
alleges, his claim cannot be procedurally barred because it
was clear error for the Superior Court to preclude review of
his illegal sentence. (Doc. 13 at 4). Petitioner's
objections do not address his failure to raise the Double
Jeopardy claim on direct appeal in state court, which is the
reason the claim is procedurally defaulted. As explained
above, Petitioner's failure to present the Double
Jeopardy claim means that his claim is now procedurally
barred. See 28 U.S.C. § 2254(b).
B.
Petitioner Has No Excuse for Procedural Default
“Where
a defendant has procedurally defaulted a claim [], the claim
may be raised in habeas only if the defendant can first
demonstrate either ‘cause' and actual
‘prejudice' or that he is ‘actually
innocent.'” U.S. v. Braswell, 501 F.3d
1147, 1149 (9th Cir. 2007) (quoting Bousley v. United
States, 523 U.S. 614, 622 (1998)). A showing of
“cause” ordinarily requires the prisoner to show
some external factor impeded the prisoner in complying with
the state procedural rules. Robinson v. Ignacio, 360
F.3d 1044, 1052 (9th Cir. 2004). External factors include the
reasonable unavailability of a factual or legal claim at the
time of the direct appeal, or interference by government
officials which prevented the claim from being brought
earlier. Braswell, 501 F.3d at 1150. The prisoner
must show actual prejudice, not just the possibility of
prejudice. Id.
Petitioner
argues that the Court should still review the merits of his
procedurally defaulted claim because he has shown cause and
prejudice. (Doc. 13 at 7). He alleges that his appellate
counsel did not argue the double jeopardy claim on direct
appeal, thereby impeding his ability to comply with the
rules. (Doc. 1 at 15). However, a claim of ineffective
assistance of appellate counsel must itself be exhausted.
Davila v. Davis, 137 S.Ct. 2058, 2065-69 (2017);
see also Martinez v. Ryan, 566 U.S. 1, 14 (2012)
(allowing an exception to the exhaustion requirement for
claims of ineffective assistance of only trial counsel if
such failure to exhaust was caused by the ineffective
assistance of post- conviction relief counsel). Thus,
Petitioner has not presented any outside evidence that an
external force impeded him in his ability to bring the Double
Jeopardy claim on direct review, and the procedural default
is therefore not excused for cause.
Even
assuming arguendo that the Court could reach the merits of
Petitioner's Petition, his claim nonetheless fails. The
Double Jeopardy Clause protects against the imposition of
multiple punishments for the same criminal offense. Moor
v. Palmer, 603 F.3d 658, 660 (9th Cir. 2010). Parole
revocation is not a criminal penalty for violating the terms
of parole; it is a continuation of punishment for the
original offense and does not trigger the protections of the
Double Jeopardy Clause. Id. Furthermore, under
Arizona law, a requirement of community ...