Gray v. Ryan

          REPORT AND RECOMMENDATION

          Honorable Eileen S. Willett United States Magistrate Judge

         TO THE HONORABLE G. MURRAY SNOW, UNITED STATES DISTRICT JUDGE:

         Pending before the Court is Richard Louis Gray's (“Petitioner”) Third Amended “Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus” (the “Third Amended Petition”) (Doc. 52). Respondents have filed a Limited Answer (Doc. 53), to which Petitioner has replied (Doc. 62). For the reasons explained herein, it is recommended that the Third Amended Petition (Doc. 52) be dismissed with prejudice.

         I. BACKGROUND

         In April 2013, Petitioner entered into a plea agreement in which Petitioner agreed to plead guilty to the following Arizona state crimes: (i) attempted sexual conduct with a minor, a class 3 felony and dangerous crime against children; (ii) molestation of a child, a class 2 felony and dangerous crime against children, and (iii) public sexual indecency, a class 5 designated felony. (Doc. 53-1 at 6-9). The trial court accepted Petitioner's guilty pleas and sentenced Petitioner to a total of ten years in prison, followed by lifetime probation. (Id. at 12-14; Doc. 53-2 at 2-7).

         In July 2013, Petitioner filed an of-right Notice of Post-Conviction Relief (“PCR”). (Doc. 53-2 at 28-29). The trial court appointed counsel, who could not find any claims for relief. (Id. at 31-32). Petitioner thereafter filed a pro se PCR Petition. (Doc. 53-3 at 2-142). The trial court found that Petitioner failed to raise a colorable claim and dismissed the proceeding. (Doc. 53-4 at 14-16). Petitioner sought further review by the Arizona Court of Appeals, which denied relief in January 2017. (Id. at 41-43).

         In 2017, Petitioner initiated a second PCR proceeding. (Id. at 45-89). The trial court dismissed the proceeding as untimely. (Id. at 91-94). The Arizona Court of Appeals affirmed the dismissal. (Id. at 140-41).

         It is undisputed that Petitioner timely initiated this federal habeas proceeding in 2017. (Doc. 1). On May 22, 2017, Petitioner filed a First Amended Petition that raised four habeas grounds, which the Court required Respondents to answer. (Docs. 9, 10). On September 26, 2017, the Court granted Petitioner's request to file a Second Amended Petition that raised a fifth ground for relief and incorporated by reference the four grounds raised in Petitioner's First Amended Petition. (Doc. 31). In July 2018, before Respondents answered the Second Amended Petition, Petitioner sought leave to file a Third Amended Petition. (Doc. 49). The Court granted the request. (Doc. 51). The Third Amended Petition presents three grounds for habeas relief. In their Limited Answer (Doc. 53), Respondents address all the grounds that Petitioner raised in his First, Second, and Third Amended Petitions. However, as Petitioner has acknowledged, only the three grounds presented in the Third Amended Petition are at issue. (Doc. 62 at 6) (“Petitioner filed a Third Amended Petition and waived his First and Second Petition as moot . . . .”). For the reasons explained herein, the undersigned finds that all claims raised in the Third Amended Petition are procedurally defaulted without excuse.

         II. LEGAL STANDARDS

         A. Exhaustion-of-State-Remedies Doctrine

         For over one hundred years, it has been 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 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); see also Reed v. Ross, 468 U.S. 1, 11 (1984) (“[W]e have long recognized that in some circumstances considerations of comity and concerns for the orderly administration of criminal justice require a federal court to forgo the exercise of its habeas corpus power.”) (citations and internal quotation marks omitted).

         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). “It is not enough that all the facts necessary to support the federal claim were before the state courts or that a somewhat similar state law claim was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982) (citation omitted); see also Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), as modified by 247 F.3d 904 (9th Cir. 2001) (federal basis of a claim must be “explicit either by citing federal law or the decisions of federal courts, even if the federal basis is self-evident or the underlying claim would be decided under state law on the same considerations that would control resolution of the claim on federal grounds”).

         B. Procedural ...