United States District Court, D. Arizona
J. Markovich United States Magistrate Judge.
Rick M. Heidelbach filed a pro se petition for a Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging
his convictions for armed robbery and aggravated assault.
(Doc. 1). Petitioner raises five grounds for relief: 1)
change in sentencing law; 2) ineffective assistance of
counsel (“IAC”); 3) illegal sentence; 4) illegal
plea agreement; and 5) errors in his successive
post-conviction relief (“PCR”)
proceedings. Respondents filed an Answer contending
that all of Petitioner's claims are procedurally
defaulted without excuse and that Petitioner has failed to
show cause and prejudice for the procedural default or that a
fundamental miscarriage of justice has occurred. (Doc. 9).
Respondents further allege that some of Petitioner's
claims are waived by his guilty plea, some claims are not
cognizable on habeas review, and some claims are plainly
Court finds that Petitioner's claims in Grounds One
through Four are procedurally defaulted and barred from this
Court's review. The Court further finds that Petitioner
does not demonstrate cause and prejudice or a fundamental
miscarriage of justice to excuse the procedural default of
his claims. The Court also finds that Ground Five is not
cognizable on habeas review. Accordingly, the Petition will
FACTUAL AND PROCEDURAL BACKGROUND
Plea and Sentencing
April 5, 2013 Petitioner pled guilty to two counts of armed
robbery, five counts of aggravated assault, and one count of
attempted armed robbery. (Doc. 11 Exs. A & B). Petitioner
was sentenced to a combination of concurrent and consecutive
prison terms totaling 34 years. (Ex. C).
Post-Conviction Relief Proceedings
First PCR Petition
4, 2013, Petitioner initiated proceedings in Pima County
Superior Court for Rule 32 post-conviction relief. (Ex. D).
Appointed counsel filed a notice stating that she was unable
to find any legal issues of merit. (Ex. E). On March 26, 2014
Petitioner filed a pro se petition presenting 34 issues for
review, which the court summarized as six main arguments.
(Ex. F). The trial court denied PCR on August 1, 2014. (Ex.
I). Petitioner filed a petition for review with the Arizona
Court of Appeals, and on January 22, 2015 the COA granted
review but denied relief. (Exs. J & K). Petitioner did
not file a petition for review in the Arizona Supreme Court.
Second and Third PCR Petitions
March 3, 2015 Petitioner filed a second notice of PCR in Pima
County Superior Court. (Ex. L). Appointed counsel filed a
notice stating that she could find no issues for review and
requested that the court search the record for fundamental
error. (Ex. M).
September 1, 2015 Petitioner filed a third notice of PCR and
a pro se petition. (Exs. N & O). The trial court stated
that it would treat the petition as Petitioner's pro se
memorandum in support of his second notice of PCR, and that
it would treat the third notice as a request that new counsel
be appointed to pursue a third claim for PCR. (Ex. P). On
September 23, 2015 the trial court entered its order
dismissing Petitioner's third notice of PCR and denying
the request for counsel, and denying the second PCR petition
(Ex. P). The court noted that there were no factual or legal
grounds presented in the second petition that would warrant
relief under Rule 32, and that no purpose would be served by
any further proceedings.
filed a petition for review with the Arizona COA on October
7, 2015, which granted review and denied relief on February
11, 2016. (Exs. Q & R). Petitioner then filed a petition
for review with the Arizona Supreme Court on March 23, 2016,
which the court denied on August 3, 2016. (Exs. S & T).
filed his PWHC in this Court on October 4, 2016, asserting
five grounds for relief. (Doc. 1). Petitioner requests that
the Court hold an evidentiary hearing and vacate his
sentence. Petitioner also filed several addendums to his
petition, requesting that the Court order the trial court to
either resentence Petitioner to 12 years imprisonment or run
his sentences concurrently, or dismiss his criminal
conviction. (Docs. 18, 22, & 24).
STANDARD OF REVIEW
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) limits the federal court's power to
grant a petition for a writ of habeas corpus on behalf of a
state prisoner. First, the federal court may only consider
petitions alleging that a person is in state custody
“in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2254(a).
Sections 2254(b) and (c) provide that the federal courts may
not grant habeas corpus relief, with some exceptions, unless
the petitioner exhausted state remedies. Additionally, if the
petition includes a claim that was adjudicated on the merits
in state court proceedings, federal court review is limited
by section 2254(d).
prisoner must exhaust his state remedies before petitioning
for a writ of habeas corpus in federal court. 28 U.S.C.
§ 2254(b)(1) & (c); O'Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999). To exhaust state
remedies, a petitioner must afford the state courts the
opportunity to rule upon the merits of his federal claims by
fairly presenting them to the state's highest court in a
procedurally appropriate manner. Baldwin v. Reese,
541 U.S. 27, 29 (2004) (“To provide the State with the
necessary opportunity, the prisoner must fairly present her
claim in each appropriate state court . . . thereby alerting
the court to the federal nature of the claim.”). In
Arizona, unless a prisoner has been sentenced to death, the
highest court requirement is satisfied if the petitioner has
presented his federal claim to the Arizona COA, either
through the direct appeal process or post-conviction
proceedings. Crowell v. Knowles, 483 F.Supp.2d 925,
931-33 (D. Ariz. 2007).
is fairly presented if the petitioner describes both the
operative facts and the federal legal theory upon which the
claim is based. Kelly v. Small, 315 F.3d 1063, 1066
(9th Cir. 2003), overruled on other grounds by Robbins v.
Carey, 481 F.3d 1143 (9th Cir. 2007). The petitioner
must have “characterized the claims he raised in state
proceedings specifically as federal claims.”
Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir. 2000)
(emphasis in original), opinion amended and
superseded, 247 F.3d 904 (9th Cir. 2001). “If a
petitioner fails to alert the state court to the fact that he
is raising a federal constitutional claim, his federal claim
is unexhausted regardless of its similarity to the issues
raised in state court.” Johnson v. Zenon, 88
F.3d 828, 830 (9th Cir. 1996). “Moreover, general
appeals to broad constitutional principles, such as due
process, equal protection, and the right to a fair trial, are
insufficient to establish exhaustion.” Hivala v.
Wood, 195 F.3d 1098, 1106 (9th Cir. 1999).
“[a] habeas petitioner who [fails to properly exhaust]
his federal claims in state court meets the technical
requirements for exhaustion” if there are no state
remedies still available to the petitioner. Coleman v.
Thompson, 501 U.S. 722, 732 (1991). “This is often
referred to as ‘technical' exhaustion because
although the claim was not actually exhausted in state court,
the petitioner no longer has an available state
remedy.” Thomas v. Schriro, 2009 WL 775417, *4
(D. Ariz. March 23, 2009). “If no state remedies are
currently available, a claim is technically exhausted,
” but, as discussed below, the claim is procedurally
defaulted and is only subject to federal habeas review in a
narrow set of circumstances. Garcia v. Ryan, 2013 WL
4714370, *8 (D. Ariz. Aug. 29, 2013).