Arvizu v. Ryan

          ORDER

          HONORABLE ROSLYN O. SILVER, SENIOR UNITED STATES DISTRICT JUDGE

         On 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.

         BACKGROUND

         After a 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.^[1] Id. at *3.

         On May 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).

         On 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.

         Around 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).

         In 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 claims.

         Respondents 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.

         On 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.

         On 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 ...