United States District Court, D. Arizona
ORDER
HONORABLE JENNIFER G. ZIPPS UNITED STATES DISTRICT JUDGE.
Pending
before the Court is Magistrate Judge Eric Markovich's
Report and Recommendation (R&R) recommending that the
District Court: 1) grant Respondents' Motion to Stay the
Deadline to File an Answer (Doc. 21) pending exhaustion of
Petitioner's claims in state court; 2) deny
Petitioner's Motion to Deny Respondents' Request for
a Stay (Doc. 19); and 3) deny Petitioner's Motion to
Reconsider the Court's Order on Respondents' Request
for an Extension (Doc. 20). Petitioner has filed an objection
to the recommendation that the Court grant a stay in this
case. (Doc. 23.) After considering the R&R and the
arguments raised in Petitioner's objection, the Court
will overrule the objection and adopt Judge Markovich's
R&R.
STANDARD
OF REVIEW
When
reviewing a Magistrate Judge's Report and Recommendation,
this Court “shall make a de novo determination of those
portions of the report . . . to which objection is made,
” and “may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1)(C);
see also Baxter v. Sullivan, 923 F.2d 1391, 1394
(9th Cir. 1991) (citing Britt v. Simi Valley Unified Sch.
Dist., 708 F.2d 452, 454 (9th Cir. 1983)). Failure to
object to a Magistrate Judge's recommendation relieves
the Court of conducting de novo review of the Magistrate
Judge's factual findings; the Court then may decide the
dispositive motion on the applicable law. Orand v. United
States, 602 F.2d 207, 208 (9th Cir. 1979) (citing
Campbell v. United States Dist. Ct., 501 F.2d 196
(9th Cir. 1974)).
DISCUSSION
Petitioner
filed an Amended Petition for Writ of Habeas Corpus on August
27, 2018. (Doc. 9.) The Court ordered Respondents to file an
answer by December 11, 2018, and then granted an extension
until January 25, 2019. (Doc. 16.) On January 11, 2019,
Respondents filed another motion to either extend the time to
file an answer or to stay the case pending the outcome in
Petitioner's state court proceedings. Petitioner had
filed his first state petition for post-conviction relief
(PCR), which the Arizona Court of Appeals affirmed the denial
of on April 16, 2018. (Doc. 17, pg. 2.) Petitioner filed a
second PCR, however, on January 17, 2018, and as of the time
of Respondents' second Motion to Extend or Stay, these
claims had not been exhausted in the state system. (Doc. 17,
pg. 4.) The unexhausted claims in Petitioner's successive
PCR prompted Respondents' second motion.
Petitioner
filed a motion opposing Respondents' request for a stay
or extension, emphasizing that he did not plan to file a
second federal habeas petition. (Doc. 19.) That same day,
Petitioner filed a similar motion titled a Motion to
Reconsider the State's Request for an Extension. (Doc.
20.) These filings prompted Respondents to file a Motion for
Clarification from Petitioner as to whether he would prefer
to: (1) proceed on only his exhausted habeas claims and
dismiss his unexhausted claims still pending in state court,
or to (2) dismiss his federal habeas petition without
prejudice so as to be able to re-file following the
exhaustion of the claims in his second PCR. (Doc. 21.)
Respondents requested that if Petitioner did not wish to
either proceed on his exhausted claims only or to have his
Petition dismissed without prejudice, the Court stay
proceedings pending the outcome of Petitioner's
successive PCR before the Arizona Court of Appeals.
(Id.)
Petitioner
objects to Magistrate Judge Markovich's recommendation
that the Court stay this habeas proceeding pending exhaustion
of Petitioner's claims currently before the Arizona Court
of Appeals. In his objection, Petitioner contends that the
Court should proceed with his habeas petition because, though
not all of his claims have been exhausted pursuant to 28
U.S.C. § 2254(b)(1)(A), his claims are properly before
the Court because “there is an absence of available
State corrective process, ” and “circumstances
exist that render such process ineffective to protect the
rights of the applicant.” 28 U.S.C. §
2254(b)(1)(B). Because Petitioner's objection appears to
suggest that he would like the Court to entertain all claims
contained in his Petition, including those in his second PCR,
and because Petitioner does not demonstrate that his claims
are excused from the exhaustion requirement under §
2254(b)(1)(B), the Court will adopt the Magistrate
Judge's recommendation.
A
habeas petitioner may be excused from exhausting a given
claim where (1) “there is an absence of available State
corrective process, ” or (2) “circumstances exist
that render such process ineffective to protect the rights of
the applicant.” 28 U.S.C. § 2254(b)(1)(B)(i)-(ii);
see also Alfaro v. Johnson, 862 F.3d 1176, 1180 (9th
Cir. 2017). “An exception is made only if there is no
opportunity to obtain redress in state court or if the
corrective process is so clearly deficient as to render
futile any effort to obtain relief.” Duckworth v.
Serrano, 454 U.S. 1, 3 (1981). “[A] petitioner may
be excused from exhausting state remedies if the highest
state court has recently addressed the issue raised in the
petition and resolved it adversely to the petitioner, in the
absence of intervening United States Supreme Court decisions
on point or any other indication that the state court intends
to depart from its prior decisions.” Sweet v.
Cupp, 640 F.2d 233, 236 (9th Cir. 1981). A petitioner
“may not bypass the state courts, ” however,
“simply because he thinks they will be unsympathetic to
the claim.” Engle v. Isaac, 456 U.S. 107, 130
(1982).
Petitioner
contends that there is an absence of available corrective
process, or at least that the available process is
ineffective to protect his rights, for two primary reasons.
He first argues that because the Arizona Court of Appeals
denies so many appeals, regardless of the merits of the case,
the corrective process is “extremely broken and in
desperate need of repair.” (Doc. 23, pg. 2.) Petitioner
also points to a handful of what in his view are his most
meritorious post-conviction claims and argues that their
denial in the state court system demonstrates that the
process is ineffective. (Doc. 23, pgs. 3-6.) Neither of these
arguments warrant excuse from the exhaustion requirement. The
state courts have created a vehicle by which Petitioner has
been able to present his claims, and have reviewed or are
reviewing his claims for merit. Whether the outcome in the
Arizona court system is ultimately favorable for Petitioner
or not, the state is entitled to the first opportunity to
remedy any constitutional violations. See, e.g.,
Sweet, 640 F.2d at 236; Sherwood v.
Tomkins, 716 F.2d 632, 633 (9th Cir. 1983). This Court
can then consider Petitioner's claims regarding any
oversights or errors made in the state courts' review.
On May
7, 2019, the Arizona Court of Appeals rendered a memorandum
decision on Petitioner's Second PCR. This Court thus
orders that the case be stayed pending issuance of the
mandate and any further pursuit of state court review by
Petitioner.
CONCLUSION
IT IS
ORDERED that the Report and Recommendation (Doc. 22) is
ADOPTED.
IT IS
FURTHER ORDERED that Respondents' Motion to Stay the
Deadline to File an Answer (Doc. 21) is GRANTED, pending
final resolution of ...