United States District Court, D. Arizona
HONORABLE DOMINIC W. LANZA, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION
S. Willett, United States Magistrate Judge.
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.
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). 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).
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).
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
April 10, 2018, Petitioner filed the Petition (Doc. 1)
seeking federal habeas relief.
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).
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).
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).
Procedural Default Doctrine
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