Gray v. Ryan

          ORDER

          G. Murray Enow, Chief United States District Judge.

         Pending before the Court is a Report and Recommendation (“R&R”) (Doc. 76) issued by Magistrate Judge Eileen S. Willett recommending that Petitioner Richard Gray's (“Petitioner”) Third Amended Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus (“Third Amended Petition”) (Doc. 52) be dismissed with prejudice. For the following reasons, the Court adopts the R&R and dismisses the Third Amended Petition with prejudice.^[1]

         BACKGROUND

         The background of this case was thoroughly summarized in the R&R and is incorporated here.

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 . . . .”).

         The Third Amended Petition asserts that (1) A.R.S. § 13-1407(E) unconstitutionally shifts the burden of proving intent to the defendant; (2) A.R.S. § 13-1410 et seq is unconstitutionally vague; and (3) trial counsel was ineffective for failing to discover the unconstitutionality of the Arizona statutes. The R&R agreed with Respondents and concluded that all claims raised in the Third Amended Petition are procedurally defaulted without excuse. Accordingly, the Magistrate Judge recommended that the Court dismiss the Third Amended Petition with prejudice. (Doc. 76 at 10.) The Magistrate Judge further recommended that the Court deny a Certificate of Appealability and Petitioner's request for leave to proceed in forma pauperis. (Id.) Petitioner timely objects to the Magistrate Judge's failure to consider the constitutional question raised in the Third Amended Petition. Petitioner asserts that the Magistrate Judge errored in not concluding that the constitutional issue constitutes the “cause and prejudice” required to excuse a procedural default.

         DISCUSSION

         I. Standard of Review

         A “district judge may refer dispositive pretrial motions, and petitions for writ of habeas corpus, to a magistrate, who shall conduct appropriate proceedings and recommend dispositions.” Thomas v. Arn, 474 U.S. 140, 141 (1985); see also 28 U.S.C. § 636(b)(1)(B); Estate of Connors v. O'Connor, 6 F.3d 656, 658 (9th Cir. 1993). Any party “may serve and file written objections” to the R&R. 28 U.S.C. § 636(b)(1). “A judge of the court shall make a de novo determination of those portions of the report or specified findings or recommendations to which objection is made.” Id. District courts, however, are not required to conduct “any review at all . . . of any issue that is not the subject of an objection.” Arn, 474 U.S. at 149. A district judge “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1).

         II. Analysis

         A. Petitioner's claims are procedurally defaulted.

         A federal habeas court generally may not review a claim if the state court's denial of the claim rests on independent and adequate state law grounds. See, e.g., Zichko v. Idaho, 247 F.3d 1015, 1021 (9th Cir. 2001) (“The independent and adequate state ground doctrine ‘applies to bar federal habeas when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement.'”) (quoting Coleman v. Thompson, 501 U.S. 722, 729-30 (1991)). A state rule is “adequate” if it is “clear, consistently applied, and well-established at the time of petitioner's purported default.” Zichko 247 F.3d at 1021 (quoting Petrocelli ...