Clark v. Ryan

          ORDER

          David G. Campbell Senior United States District Judge.

         Thomas 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.

         I. Background.

         Clark 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 18-25, 43-49.

         In 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.^[1] Clark did not seek appellate review pursuant to Rule 32.9(c). See Doc. 19 at 2-3.^[2]

         Clark 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.

         II. R&R Standard of Review.

         This 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).

         III. Discussion.

         A. The Exhaustion Requirement and Procedural Default.

         It is 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. 1999)).

         An 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).

         B. Judge Willett's R&R.

         Judge 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 ...