United States District Court, D. Arizona
Ralph F. Esposito, Petitioner,
Charles L. Ryan, et al., Respondents.
HONORABLE NEIL V. WAKE, SENIOR UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION
S. Willett United States Magistrate Judge.
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.
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). 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.
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.
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).
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
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
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).
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).
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). “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”).
Procedural Default Doctrine
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