United States District Court, D. Arizona
Phillip M. Ohman, Petitioner,
Arizona Department of Corrections, et al., Respondents.
HONORABLE JAMES A. TEILBORG, SENIOR UNITED STATES DISTRICT
REPORT AND RECOMMENDATION
S. WILLETT UNITED STATES MAGISTRATE JUDGE
before the Court is Phillip M. Ohman's
(“Petitioner”) Amended Petition for a Writ of
Habeas Corpus (Doc. 11) (the “Amended
Petition”). Also pending before the Court is
Petitioner's “Motion Requesting an Order for
Extradition From ADOC to U.S. B.O.P.” (Doc. 33), which
duplicates the relief requested in the Amended Petition. For
the reasons explained herein, the undersigned recommends that
the Court dismiss the Amended Petition (Doc. 11) with
prejudice and deny Petitioner's Motion (Doc. 33).
2015, a Maricopa County Grand Jury indicted Petitioner on
numerous counts in five separate cases. (Bates Nos.
1-14). Petitioner signed plea agreements in each
of the cases. (Bates Nos. 27-41). The trial court accepted
Petitioner's guilty pleas. (Bates Nos. 42-51). The trial
court sentenced Petitioner in all five cases at an August 2,
2016 hearing. (Bates Nos. 69-92). The trial court ordered the
sentences to run consecutively to Petitioner's sentence
imposed in a federal criminal case in the Western District of
Texas, explaining that to do otherwise “would be to
totally ignore the Arizona crime spree [Petitioner
committed].” (Bates No. 88-89). The trial court stated
that “[i]t is the intent of this Court that you serve
your federal sentence first, so you may be transported to
federal custody, but that will be their call.” (Bates
No. 89). On August 10, 2016, the United States Marshals
Service filed a detainer against Petitioner with the Arizona
Department of Corrections on the basis of the Western
District of Texas case, but did not take custody of
Petitioner. (Bates No. 95).
did not seek post-conviction relief in state court. In June
2017, Petitioner initiated this federal habeas proceeding.
(Doc. 1). Pursuant to the Court's Screening Order (Doc.
14), Respondents answered the Amended Petition. (Doc. 27).
Respondents assert that all of Petitioner's habeas claims
are procedurally defaulted without excuse. Petitioner filed a
Reply (Doc. 28). On September 13, 2018, Petitioner filed a
“Motion Requesting an Order for Extradition From ADOC
to U.S. B.O.P.” (Doc. 33).
well-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).
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).
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
state court under the state's procedural rules. See,
e.g., Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir.
to the rationale of the exhaustion doctrine, the procedural
default doctrine is rooted in the general principle that
federal courts will not disturb state court judgments based
on adequate and independent state grounds. Dretke v.
Haley, 541 U.S. 386, 392 (2004). A habeas petitioner who
has failed to meet the state's procedural requirements
for presenting his or her federal claims has deprived the