Heidelback v. Ryan

          ORDER

          Eric J. Markovich United States Magistrate Judge.

         Petitioner 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.^[1] 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 meritless.

         The 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 be denied.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Plea and Sentencing

         On 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).

         B. Post-Conviction Relief Proceedings^[2]

         i. First PCR Petition

         On June 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.

         ii. Second and Third PCR Petitions

         On 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).

         On 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.

         Petitioner 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).

         C. Habeas Petition

         Petitioner 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).

         II. STANDARD OF REVIEW

         The 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).

         A. Exhaustion

         A state 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).

         A claim 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).

         However, “[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).

         B. ...