United States District Court, D. Arizona
G. Campbell Senior United States District Judge.
Clark is confined in Arizona state prison. He has filed a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Docs. 1, 19. Magistrate Judge Eileen Willett
issued a report recommending that the petition be dismissed
(“R&R”). Doc. 39. Clark filed an objection.
Doc. 40. For reasons stated below, the Court will accept the
R&R and dismiss the petition.
was indicted in state court on multiple assault charges in
May 2015. Doc. 29-1 at 4-7. He pled guilty to aggravated
assault with a dangerous weapon and attempted sexual assault
and was sentenced to fifteen years in prison. Id. at
March 2017, Clark filed a petition for post-conviction relief
(“PCR”) pursuant to Rule 32 of the Arizona Rules
of Criminal Procedure. Doc. 29-4 at 5-38. The state opposed
the petition. Id. at 42-59. Clark replied in the
form of a Rule 32.9(a) motion for review. See Id. at
61-81. The trial court found that Clark failed to raise a
colorable claim and summarily dismissed the petition pursuant
to Rule 32.6(c). Id. at 85. Clark did not seek appellate
review pursuant to Rule 32.9(c). See Doc. 19 at
initiated this federal habeas proceeding in September 2017.
Doc. 1. His amended petition asserts ineffective assistance
of counsel, prosecutorial misconduct, double jeopardy, and
due process claims. Doc. 19. Judge Willett recommends that
the petition be dismissed because the claims are procedurally
defaulted. Doc. 39.
R&R Standard of Review.
Court “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). The Court
“must review the magistrate judge's findings and
recommendations de novo if objection is made, but not
otherwise.” United States v. Reyna-Tapia, 328
F.3d 1114, 1121 (9th Cir. 2003) (en banc). The Court is not
required to conduct “any review at all . . . of any
issue that is not the subject of an objection.”
Thomas v. Arn, 474 U.S. 140, 149 (1985); see
also 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3).
The Exhaustion Requirement and Procedural Default.
well settled 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
Picard v. Connor, 404 U.S. 270, 275 (1971) (citing
Ex parte Royall, 117 U.S. 241 (1886)); 28 U.S.C.
§ 2254(b)(1). That exhaustion includes appellate
remedies. As the Supreme Court has explained:
“[b]ecause the exhaustion doctrine is designed to give
the state courts a full and fair opportunity to resolve
federal constitutional claims before those claims are
presented to the federal courts, we conclude that state
prisoners must give the state courts one full opportunity to
resolve any constitutional issues by invoking one complete
round of the State's established appellate review
process.” O'Sullivan v. Boerckel, 526 U.S.
838, 845 (1999). PCR claims of “Arizona state prisoners
are exhausted for purposes of federal habeas once the Arizona
Court of Appeals has ruled on them.” Castillo v.
McFadden, 399 F.3d 993, 998 n.3 (9th Cir. 2005) (quoting
Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir.
unexhausted claim is procedurally defaulted in a federal
habeas action where the claim would be barred in a return to
state court. See Teague v. Lane, 489 U.S. 288,
297-99 (1989); Beaty v. Stewart, 303 F.3d 975, 987
(9th Cir. 2002). A federal court may review the merits of a
procedurally defaulted claim if the petitioner shows cause
for the default and actual prejudice. See Coleman v.
Thompson, 501 U.S. 722, 750 (1991). Review is also
warranted where the petitioner shows that the failure to
consider the claim would result in a fundamental miscarriage
of justice. See Hurles v. Ryan, 752 F.3d 768, 780
(9th Cir. 2014).
Judge Willett's R&R.
Willett found Clark's claims to be unexhausted because he
did not appeal the trial court's dismissal of his PCR
petition. Doc. 39 at 5-6. Because the claims would be denied
as untimely if Clark were to return to state court and
present them in a second PCR proceeding, see Ariz.
R. Crim. P. 32.4, Judge Willett concluded that the claims are
now procedurally defaulted. Id. at 6-7. Judge
Willett further concluded that Clark has not shown ...