Esposito v. Ryan

          HONORABLE NEIL V. WAKE, SENIOR UNITED STATES DISTRICT JUDGE.

          REPORT AND RECOMMENDATION

          Eileen S. Willett United States Magistrate Judge.

         Pending before the Court is Arizona state prisoner's Ralph F. Esposito's (“Petitioner”) Amended Petition for a Writ of Habeas Corpus (the “Amended Petition”) (Doc. 10). After reviewing the parties' briefing, it is recommended that the Amended Petition be denied and dismissed with prejudice.

         I. BACKGROUND

         In March 2014, a Maricopa County Grand Jury indicted Petitioner on the following three counts: (i) theft of a means of transportation, a class 3 felony (Count 1); (ii) kidnapping, a class 2 felony (Count 2); and (iii) kidnapping, a class 2 felony and a dangerous crime against children (Count 3). (Bates Nos. 1-2).^[1] After trial, a jury found Petitioner guilty as charged. (Bates No. 5). At the August 8, 2014 sentencing hearing, the trial court sentenced Petitioner to concurrent prison sentences of 2.5 years on Count 1 and four years on Count 2. (Bates No. 6). The trial court sentenced Petitioner to ten years on Count 3, to be served consecutively to the sentences on Counts 1 and 2. (Id.).

         Petitioner pursued a direct appeal. On November 19, 2015, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. (Bates Nos. 111-18). The Arizona Court of Appeals denied Petitioner's motion for reconsideration. (Bates Nos. 119-23). Petitioner did not seek further review by the Arizona Supreme Court.

         In May 2016, Petitioner filed a notice of post-conviction relief (“PCR”). (Bates Nos. 137-140). The trial court appointed counsel, who could not find a colorable claim for relief. (Bates No. 141). Petitioner submitted a number of pro se briefs during the PCR proceeding. (Bates Nos. 144-443, 460-509). On July 27, 2017, the trial court denied PCR relief. (Bates Nos. 514-16). In October 2017, Petitioner filed a document captioned as “Delayed Notice of Appeal from Maricopa County Superior Court.” (Bates Nos. 517-19). In a November 2017 minute entry, the trial court denied Petitioner's request to file an untimely appeal as it found that Petitioner failed to satisfy his burden under Arizona Rule of Criminal Procedure 32.1(f) of showing that the untimely filing was not his fault. (Bates No. 520).

         On November 27, 2017, Petitioner timely initiated this federal habeas proceeding. (Doc. 1). Petitioner subsequently filed a document that the Court construed as an Amended Petition. (Docs. 10, 11). As detailed in the Court's February 20, 2018 Screening Order, the Amended Petition raises twelve claims for habeas relief:

Ground One: Petitioner's sentence for Count Three (kidnapping) was illegal and excessive;

Ground Two: Petitioner's sentence for Count One (theft of a means of transportation) was illegal and excessive;

Ground Three: The Petitioner's sentence for Count Three (kidnapping) was “illegally applied and excessive”;

Ground Four: “The Tempe, Arizona Police Department violated the Petitioner's [] 4th Amendment[] rights . . . during a dangerous illegal traffic stop without probable cause of any traffic violation or any other accusation of a crime had [sic] been committed that warranted the search of the vehicle or seizure of [Petitioner]”;

Ground Five: Petitioner's defense counsel provided ineffective assistance;

Ground Six: Petitioner's Fifth and Fourteenth Amendment rights were violated “due to judicial misconduct by a statement that discouraged [Petitioner from] go[ing] to trial and misinformed the Petitioner of due process of law”;

Ground Seven: Petitioner “was denied the right to attend bench conferences when representing himself during the trial due to a procedural order” by the trial judge;

Ground Eight: The Arizona Court of Appeals “rendered [its dismissal of Petitioner's appeal] with the wrong case number, ” his attorney was ineffective because she “violat[ed] attorney/client privileged information, ” and the trial judge “violated the Petitioner's rights to due process”;

Ground Nine: Petitioner's Fourth Amendment rights were violated “through [the] use of electronic surveillance without probable cause”;

Ground Ten: Petitioner has been denied access to the courts because the Arizona Department of Corrections has placed him in protective custody;

Ground Eleven: Petitioner's sentence for Counts One and Three was illegal and excessive; and

Ground Twelve: Both the grand jury and trial jury “were tainted by . . . television news coverage, ” Petitioner “could not receive a fair trial, ” and his attorney was ineffective.

(Doc. 11 at 2-3). The Court dismissed Ground Ten after finding that it did not present a cognizable habeas claim. (Id. at 3). The Court ordered Respondents to answer the remaining claims for relief. On March 15, 2018, Respondents filed their Answer (Doc. 16), to which Petitioner has replied (Doc. 30).

         II. LEGAL STANDARDS

         A. Exhaustion-of-State-Remedies Doctrine

         For over one hundred years, it has been settled 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); see also Reed v. Ross, 468 U.S. 1, 11 (1984) (“[W]e have long recognized that in some circumstances considerations of comity and concerns for the orderly administration of criminal justice require a federal court to forgo the exercise of its habeas corpus power.”) (citations and internal quotation marks omitted).

         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). “It is not enough that all the facts necessary to support the federal claim were before the state courts or that a somewhat similar state law claim was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982) (citation omitted); see also Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), as modified by 247 F.3d 904 (9th Cir. 2001) (federal basis of a claim must be “explicit either by citing federal law or the decisions of federal courts, even if the federal basis is self-evident or the underlying claim would be decided under state law on the same considerations that would control resolution of the claim on federal grounds”).

         B. Procedural Default Doctrine

         If a 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 ...