United States District Court, D. Arizona
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 Corpusâ (the
âThird Amended Petitionâ) (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 ...