United States District Court, D. Arizona
HONORABLE ROSLYN O. SILVER, SENIOR UNITED STATES DISTRICT
August 7, 2017, Magistrate Judge James F. Metcalf issued a
Report & Recommendation (“R&R”)
recommending the Court deny the petition for writ of habeas
corpus. The R&R reasoned that eleven of the twelve claims
were procedurally defaulted and the one claim that could be
reviewed on its merits did not support granting relief.
Petitioner Joe Louis Arvizu, Jr., filed lengthy objections,
as well as a supplement, rearguing the merits of all of his
claims. Respondents subsequently filed an additional brief
regarding the impact of a ruling by the Arizona Court of
Appeals in Petitioners' state post-conviction
proceedings. Having reviewed the record, the petition for
writ of habeas corpus will be denied.
jury trial, Petitioner was convicted of aggravated drunk
driving and sentenced to 4.5 years in prison. Petitioner
filed a timely direct appeal but his counsel filed a notice
with the Arizona Court of Appeals that she was “unable
to discover any arguable questions of law after searching the
entire record.” State v. Arvizu, No. 1 CA-CR
15-0003, 2015 WL 7280917, at *1 (Ariz.Ct.App. Nov. 17, 2015).
Petitioner filed a “supplemental brief” which the
Arizona Court of Appeals described as raising seventeen
issues. But that court concluded Petitioner “did not
properly raise and argue” most of the seventeen issues
“as required by Arizona Rule of Criminal Procedure
31.13.” Id. at *2. Accordingly, the court
concluded Petitioner had waived most of the issues. The court
did, however, address and reject on the merits
Petitioner's challenges regarding the sufficiency of the
evidence and inconsistent witness testimony. Id. at
*2-3. The court also addressed and rejected Petitioner's
argument that the prosecution's failure to produce a
“tow sheet” constituted a Brady
violation. Id. at *3.
26, 2016, after his direct appeal failed, Petitioner filed a
“Notice of Post-Conviction Relief” in Maricopa
County Superior Court. (Doc. 10-1 at 9). That notice was
merely the basic form to initiate the post-conviction process
and did not contain any indication of the claims Petitioner
wished to assert. Counsel was appointed but that counsel
later filed a statement that “no colorable claim for
relief” existed. (Doc. 1-2 at 29). The superior court
directed Petitioner to file his own “Pro Per Petition
for Post-Conviction Relief” no later than October 31,
2016. (Doc. 1-2 at 30). Instead of filing something in the
state post-conviction proceeding, Petitioner initiated the
present federal proceedings on September 30, 2016.
Petitioner's federal petition contained 12 Grounds for
Relief. With no substantive petition on file in state court,
Petitioner's state post-conviction proceedings were
dismissed on December 3, 2016. (Doc. 10-1 at 13).
December 9, 2016, this Court noted Petitioner's own
allegations were that he had not properly presented all of
his claims in state court. That is, Petition stated he had
“presented the claims in Grounds One through Four to
both the Arizona Court of Appeals and the Arizona Supreme
Court” but he did not even allege he had
“presented the issues raised in Grounds Five through
Twelve to any Arizona appellate court.” (Doc. 5 at 4).
Thus, the petition appeared to qualify as a
“‘mixed' petition, i.e., one containing both
exhausted and unexhausted claims.” (Doc. 5 at 4).
Because the Court had very limited information about the
status of the state post-conviction proceedings, the Court
noted Petitioner might still be able to exhaust
“Grounds Five to Twelve if he promptly file[d] in the
Arizona Court of Appeals a petition for review from the
denial of his Rule 32 petition.” (Doc. 5 at 5). The
Court directed Petitioner to consider how he wished to
proceed but also ordered Respondents to answer the petition.
December 22, 2016, Petitioner filed a petition for review
with the Arizona Court of Appeals regarding the denial of his
post-conviction petition. (Doc. 9). The petition for review
explained that after his state post-conviction attorney
advised him that she could find no plausible grounds for
relief, he “chose to move forward” by filing a
federal petition instead of filing his own petition in state
court. In other words, Petitioner intentionally bypassed the
state court post-conviction proceeding. Apparently
misunderstanding this Court's Order, Petitioner explained
to the Arizona Court of Appeals that he needed to raise
“certain grounds” in a petition for review in
order for the federal court to entertain his federal habeas
petition. (Doc. 9 at 2). Thus, the petition for review
presented some of the claims that this Court had informed
Petitioner looked to be unexhausted. (Doc. 9).
responding to the federal petition, Respondents asserted
eleven of the twelve claims were “technically
exhausted, but procedurally defaulted.” (Doc. 10 at 2).
According to Respondents, the only claim that had been
exhausted in state court and could be resolved on the merits
here was the claim involving the missing tow sheet. On May
16, 2017, the Magistrate Judge called for briefing on two
issues. First, whether the federal petition should be
dismissed pending completion of the state court
post-conviction proceedings. (Doc. 22 at 4). And second,
whether the petition contained exhausted and unexhausted
claims such that Petitioner should be required to delete the
unexhausted claims if he wishes to proceed with the exhausted
submitted a brief stating “the petition for review has
no effect in this proceeding.” (Doc. 23 at 1). Because
Petitioner had not filed an actual petition for
post-conviction relief in superior court, Respondents claimed
the Arizona Court of Appeals would not consider any of the
claims presented in his petition for review. (Doc. 23 at 2).
Thus, there was no need to delay resolution of the federal
petition pending a decision by the Arizona Court of Appeals.
Moreover, the petition did not contain any unexhausted claims
because, again, Petitioner's failure to pursue
state-court relief meant all of his claims were technically
exhausted but procedurally defaulted.
August 7, 2017, Magistrate Judge Metcalf issued his R&R.
At that time, the Arizona Court of Appeals had not yet acted
on the petition for review. Despite the pending state-court
proceedings, the R&R recommended the Court proceed to
resolve the federal petition. The R&R also concluded that
eleven of the twelve claims were procedurally defaulted. In
reaching this conclusion, the R&R noted “Petitioner
arguably presented various claims from his habeas petition in
his Petition for Review to the Arizona Court of Appeals in
his PCR proceeding.” (Doc. 29 at 24). The R&R
reasoned the Arizona Court of Appeals would “not
consider claims in a PCR petition for review which were not
presented to the PCR court.” (Doc. 29 at 24). But the
R&R also noted “actual consideration of the merits
of a claim by the state appellate court” might satisfy
exhaustion. (Doc. 29 at 25). The R&R then went on to
analyze and reject the one claim that could be resolved on
its merits involving the tow sheet. The R&R concluded all
the other claims were procedurally defaulted. Petitioner
filed objections to the R&R but did not address the
procedural status of his claims. Instead, he merely reargued
the merits of each of his claims.
December 6, 2017, Petitioner filed a notice that the Arizona
Court of Appeals had issued a decision on his petition for
review. That decision provided, in full:
Petitioner Joe Louis Arvizu, Jr. seeks review of the superior
court's order denying his petition for post-conviction
relief, filed pursuant to Arizona Rule of Criminal Procedure
32.1. This is Arvizu's first petition.
Absent an abuse of discretion or error of law, this court
will not disturb a superior court's ruling on a petition
for post-conviction relief. State v. Gutierrez, 229
Ariz. 573, 577, ¶ 19 (2012). It is the petitioner's
burden to show that the superior court abused its discretion
by denying the petition for post-conviction relief. See
State v. Poblete, 227 Ariz. 537, 538, ¶ 1 (App.
2011) (petitioner has burden of establishing abuse of
discretion on review).
We have reviewed the record in this matter, the superior
court's order denying the petition for post-conviction
relief, and the petition for review. We find the petitioner