Villareal v. Ryan

          HONORABLE DOMINIC W. LANZA, UNITED STATES DISTRICT JUDGE.

          REPORT AND RECOMMENDATION

          Eileen S. Willett, United States Magistrate Judge.

         Pending before the Court is Joaquin Villareal's (“Petitioner”) “Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus” (the “Petition”) (Doc. 1). For the reasons explained herein, the undersigned recommends that the Court dismiss the Petition (Doc. 1) with prejudice.

         I. BACKGROUND

         In April 2016, Petitioner entered into a plea agreement in which Petitioner agreed to plead guilty to one count of possession or use of dangerous drugs, a class 4 felony with one prior felony conviction, in violation of Arizona law. (Bates Nos. 1-4).^[1] The trial court accepted Petitioner's guilty plea. (Bates Nos. 5-7). The trial court sentenced Petitioner to seven years in prison. (Bates Nos. 8-12).

         On July 15, 2016, Petitioner filed a Notice of Post-Conviction Relief (“PCR”). (Bates Nos. 13-15). The trial court appointed PCR counsel, who could not find any colorable claims. (Bates Nos. 16-17, 19-23). On January 11, 2017, Petitioner filed a pro se PCR Petition. (Bates Nos. 26-115). On March 1, 2017, the trial court dismissed the PCR Petition after finding that Petitioner failed to present a claim entitling him to PCR relief. (Bates No. 142). Petitioner filed a Petition for Review in the Arizona Court of Appeals, which granted review, but denied relief. (Bates Nos. 144-52, 178-81). Petitioner did not seek further review by the Arizona Supreme Court. (Bates No. 182).

         On April 10, 2017, while Petitioner's Petition for Review was pending, Petitioner filed a second PCR Notice in the trial court. (Bates Nos. 153-67). The trial court dismissed the second PCR proceeding as untimely and successive. (Bates Nos. 174-77).

         On April 10, 2018, Petitioner filed the Petition (Doc. 1) seeking federal habeas relief.

         II. LEGAL STANDARDS

         A. Exhaustion-of-State-Remedies Doctrine

         It has been settled for over a century 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).

         The 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).

         Case 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).

         B. Procedural Default Doctrine

         If a 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 ...