United States District Court, D. Arizona
HONORABLE ROSLYN O. SILVER, SENIOR UNITED STATES DISTRICT
Judge James F. Metcalf issued a Report and Recommendation
(“R&R”) recommending the Court find
Petitioner Cardinal Micheaux Barnes procedurally defaulted
all of his claims. Barnes filed objections to the R&R
but, after de novo review, the R&R is correct and will be
2016, Petitioner pleaded guilty to one count of conspiracy to
commit aggravated assault and was sentenced to 23.75 years.
Petitioner filed a timely notice of post-conviction relief
which was denied on September 19, 2017. Petitioner had until
October 30, 2017, to seek review of that denial by filing a
petition for review with the Arizona Court of Appeals.
Petitioner did not do so. According to Petitioner, he was
unable to file a petition for review because his legal
documents were confiscated on September 16, 2017, and not
returned to him until October 20, 2017. Thus, under
Petitioner's version of events, he had his legal
documents from October 20 through October 30 but he did not
file a motion for extension of time or a petition for review
during that period. Petitioner did not file a motion for
extension of time or petition for review after that period
either. Instead, Petitioner made no further effort to pursue
his claims in state court. Petitioner filed the present
federal petition on May 29, 2018.
R&R concludes Petitioner's failure to file a petition
for review by the Arizona Court of Appeals means his claims
were not properly exhausted and, given the long-passed
deadline for filing such a petition, as well as Arizona's
prohibitions on successive petitions, Petitioner is now
barred by Arizona law from pursuing his claims in state
court. Thus, the R&R states “Petitioner's
claims are all now procedurally defaulted.” (Doc. 63 at
10). The R&R states there is no basis to excuse that
default, meaning all the claims should be dismissed with
objections to the R&R, Petitioner argues he was unable to
file a timely petition for review because his legal files
were confiscated until October 20, 2017. (Doc. 64 at 5). In
addition, it appears Petitioner argues that, even after he
received his legal files on October 20, he could not have
obtained the supplies necessary to prepare a petition for
review for some time after the deadline passed. (Doc. 64 at 7).
At the end of his objections, however, Petitioner admits he
intentionally bypassed the Arizona Court of Appeals.
According to Petitioner, he filed his federal “Petition
of Writ of Habeas Corpus . . . because he didn't believe
that he would receive a fair and convincing attempt on
correcting the Due Process deprivations with the state
courts.” (Doc. 64 at 10).
pleaded guilty, if Petitioner wished to challenge his
conviction or sentence he was required to exhaust his claims
by presenting them to the trial court in a petition for
post-conviction relief and a petition for review to the
Arizona Court of Appeals. Swoopes v.
Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999)
(“[C]laims of Arizona state prisoners are exhausted for
purposes of federal habeas once the Arizona Court of Appeals
has ruled on them.”). It is undisputed Petitioner did
not file a petition for review. It is also undisputed that
Arizona law would not allow Petitioner to now present his
claims to the Arizona Court of Appeals. Thus,
Petitioner's claims are all procedurally defaulted and
the only issues are whether Petitioner can show “cause
and prejudice” to excuse that procedural default or if
“failure to consider the claims will result in a
fundamental miscarriage of justice.” Coleman v.
Thompson, 501 U.S. 722, 750 (1991).
with the “cause” aspect of the “cause and
prejudice” inquiry, Petitioner “must show that
some objective factor external to the defense impeded [his]
efforts to comply with the State's procedural
rule.” Davila v. Davis, 137 S.Ct. 2058, 2065
(2017). It appears Petitioner believes the confiscation of
his legal materials until October 20, 2017, meets the
standard for “cause.” But Petitioner had his
legal materials as of October 20, 2017, and his petition for
review was not due until October 31, 2017. Thus, Petitioner
had eleven days to prepare his petition for review. If
Petitioner needed more time, he could have filed a motion
seeking additional time. At worst, Petitioner could have
submitted a petition after the applicable deadline and
requested the state court accept the untimely filing.
Petitioner, however, chose to make no effort to seek review
by the Arizona Court of Appeals. Instead, Petitioner waited
approximately seven months and then filed his federal
petition. With no convincing explanation for Petitioner's
failure to present his claims to the Arizona Court of
Appeals, he has not established “cause”
justifying his failure to exhaust his claims. Therefore, the
Court need not address whether Petitioner can meet the
“prejudice” requirement. See Smith v.
Murray, 477 U.S. 527, 533 (1986) (holding lack of
“cause” means there is no need to address
Petitioner has not established the failure to consider his
claims will result in a fundamental miscarriage of justice.
To make such a showing, Petitioner would have to make
“a showing of actual innocence.” Gage v.
Chappell, 793 F.3d 1159, 1167 (9th Cir. 2015).
Petitioner has not done so.
IT IS ORDERED the Report and Recommendation
(Doc. 63) is ADOPTED. The Petition for Writ
of Habeas Corpus (Doc. 1) is DENIED. The
Clerk of Court shall enter a judgment of dismissal with
IS FURTHER ORDERED a Certificate of Appealability is
DENIED because dismissal of the petition is
justified by a plain procedural bar and jurists of reason
would not find the procedural ruling debatable.