ORDER

JAMES A. TEILBORG, Senior District Judge.

Pending before this Court is Petitioner's Petition for Writ of Habeas Corpus ("Petition"). The Magistrate Judge to whom this case was assigned issued a Report and Recommendation (R&R) recommending that this Court deny the Petition. 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).

Petitioner has filed objections to the R&R. Consistent with United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc), this Court will review the portion of the R&R to which there is an objection de novo.

I. Factual Background

The R&R quotes the Arizona Court of Appeals' recounting of the facts of this case, which are as follows:

Doc. 15 at 1-2 (quoting Doc. 13-2 at 93-94).

Petitioner does not object or argue that the above quoted language accurately represents the Arizona Court of Appeals' decision. Accordingly, the Court adopts this summary as the finding of the state court. However, Petitioner does object and argue some of the facts are incorrect. The Court will address those objections as necessary below.

II. Preliminary Requests

Petitioner asks this Court to release him from the Arizona Department of Corrections so that he can do discovery on this case. That request is denied.

Petitioner also complains about his lack of counsel. Specifically, Petitioner states, ". . .Petitioner was also denied a Federal Public Defender by a Federal Judge to promptly represent him for what the state court Judges refused to do." Doc. 18 at 40.

Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).

In this case, the Court has reviewed the Petition, Answer, R&R, and Objections. The Court does not find discovery is necessary. Further, the Court finds that Petitioner is capable of articulating his claims pro se and that Petitioner is unlikely to succeed on the merits. Therefore, to the extent Petitioner is requesting counsel, that request is denied.

III. Default of Claims

The R&R concludes that this Court should not reach the merits of any of the claims made in the Petition because Petitioner failed to exhaust those claims in state court. Doc. 15 at 11. Petitioner does not dispute that he did not exhaust his claims in state court. Instead, Petitioner argues that his lack of exhaustion should be excused because it is the fault of his appellate counsel. More specifically, Petitioner alleges that he asked his appellate counsel to raise additional issues, and counsel did not. Doc. 18 at 25-26. Petitioner further alleges that counsel ". . . should have known better. . . ." Id. at 26.

In Martinez v. Schriro, 132 S.Ct. 1309 (2012), the United States Supreme Court held that ineffectiveness of post-conviction relief counsel could excuse procedural default of claims of ineffectiveness of trial counsel. In Nguyen v. Curry, 736 F.3d 1287, 1296 (9th Cir. 2013), the Ninth Circuit Court of Appeals held that the exception Martinez created also applied to claims of ineffective assistance of appellate counsel.1

Notably, both Martinez and Nguyen created an exception for failing to exhaust claims of ineffective assistance of trial counsel. In this case, Petitioner elected to waive counsel and proceed pro se at trial. Doc. 13 at 4. Therefore, he does not have any valid ineffective assistance of trial counsel claims.2 Thus, the issue presented is whether Martinez (and Nguyen) are properly applied to claims of error at trial other than ineffective assistance of trial counsel.

In Hurles v. Ryan, 2014 WL 1979307, *9-10 (9th Cir. 2014), the Court of Appeals answered this question in Petitioner's favor. Specifically, the Court of Appeals considered the merits of a claim that trial counsel raised, thoroughly argued, but lost (accordingly, trial counsel was not ineffective); yet appellate counsel failed to raise this claim on appeal (and accordingly, appellate counsel was ineffective). Id.

Thus, this Court must consider the substance of each of Petitioner's unexhausted theories to determine whether any of them show a "substantial" claim of ineffective assistance of appellate counsel for failing to raise them on appeal, such that Petitioner's failure to exhaust would be excused.3 Under this formulation, exhaustion within the state courts is no longer required for any substantial claim, because it would always be excused by counsel's failure to raise it. Thus, the end result is that this Court must always consider the "merits" of every claimed raised by every petitioner if the petitioner also raises ineffectiveness of appellate counsel or post-conviction-relief counsel. It is not clear to this Court that the end of the exhaustion requirement was the intent of the Supreme Court in Martinez, but it is nonetheless the practical result.

By this Court's count, Petitioner has nine unexhausted claims: 1) double jeopardy; 2) ineffective assistance of trial counsel in failing to offer mental health evidence to the jury; 3) trial judge's error in failing to allow mental health evidence to be submitted to the jury; 4) trial judge's consideration of aggravating and mitigating factors at sentencing;4 5) certain disputes of fact; 6) request for video; 7) alleged "with prejudice" dismissal and/or the state trial judge received bribes; 8) facts do not support escape charge; and 9) arraignment was defective.5 With respect to the claims that are raised before this Court for the first time by way of Petitioner's objections, for purposes of this Order, the Court will give Petitioner the benefit of liberal construction and determine whether they are substantial. However, procedurally, these claims are likely not properly before this Court for any purpose because they were not raised in Petitioner's Petition.

A. Substantiality

Claims 1, 3, 4, and 9

These claims are all alleged errors of state law. The Supreme Court has "stated many times that federal habeas corpus relief does not lie for errors of state law." Estelle v. McGuire, 502 U.S. 62, 67 (1991) (internal quotation marks omitted). Accordingly, Petitioner cannot state a claim that is substantial based on any of these alleged errors.

To the extent Petitioner has tried to characterize Claim 1 as a constitutional double jeopardy argument, Petitioner is incorrect that he was placed in double jeopardy. Specifically, Petitioner claims that the sentencing aggravating factor of covering up his offense was inherent in the crime of escape; therefore the trial judge using that aggravating factor was inappropriate. Doc. 15 at 4 (summarizing Petitioner's claims). However, the Arizona Court of Appeals, after finding that Petitioner had waived this argument, held in the alternative that Petitioner was wrong as a matter of state law. Specifically, the Arizona Court of Appeals stated:

Doc. 13-2 at 96; Exhibit G at 5, n.2.

Accordingly, Claim 1, under state law, fails to raise a substantial double jeopardy issue. As a result of the foregoing, none of Claims 1, 3, 4, or 9 raise a claim that is substantial.

Claim 2

In Claim 2, Petitioner alleges ineffective assistance of trial counsel. As discussed above Petitioner elected to proceed pro se at trial; therefore, Petitioner cannot bring a substantial claim of ineffective assistance of trial counsel. Faretta v. California, 422 U.S. 806, 834, n. 46 (1975) ("a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of `effective assistance of counsel.'").

Claims 5 and 8

All of these Claims can be fairly characterized as Petitioner challenging the sufficiency of the evidence to support his conviction.

Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011).

Here, the majority of Petitioner's "objections" encompass his alternative version of events. By way of example, Petitioner argues that an officer testified that Petitioner was tasered in the shoulder, when Petitioner contends he was really tasered in the back. Doc. 18 at 10. As a further example, Petitioner argues that he did not escape, but instead, "left the scene for his safety do [sic] to a trigger happy D.P.S. employee who will tase someone when he is not threaten [sic], . . . ." Doc. 18 at 8.

Here, the jury heard the evidence against Petitioner and the Court has reviewed the transcripts in the record. The Court cannot conclude that no rational trier of fact could have found proof of guilt beyond a reasonable doubt. Accordingly, Claims 5 and 8 are not substantial.

Claim 6

In Claim 6, Petitioner claims that there was a "hindered" video of his stop and that it was not produced to him in discovery. For example, Petitioner states "And the only evidence (the video tape) that proves Petitioner's innocence was withheld." Doc. 18 at 48. Petitioner also states, "The Arizona [sic] of Appeals without investigating facts allowed altered incident reports to this fraudulent case for an unlawful conviction and sentence, which an "Honorable" investigation for the Hindered D.P.S. video Surveillance tape that was not conducted by any agency involved in this fraudulent [sic] would have made a clear decision to close this case." Id. at 2.

As Petitioner recounts, at trial, the Officer who arrested him testified that a dash-cam did not exist in the patrol vehicle on June 23, 2006. Id. at 7. Petitioner claims this testimony was false. Id. On this record, Petitioner has presented no evidence, other than his self-serving allegations, that a video of the stop exists. The Court finds that Petitioner's unsubstantiated allegations cannot overcome the under-oath testimony of the Officer who stated that no camera was in the car. Further, even if Petitioner is correct that a video existed, Petitioner's own version of the events of that night show that the video likely would not have aided his defense. Accordingly, the Court finds that this claim is not substantial and his appellate counsel's failure to raise it does not excuse Petitioner's default of his claims.

Claim 7

Petitioner finally argues that at some point he was charged and then released because those charges were dismissed; then he was re-charged. Petitioner claims the charges and conviction that are the subject of this habeas petition are from the re-charging. Petitioner has a theory that the original charges were dismissed with prejudice, but the records were altered to say without prejudice.

Petitioner's various allegations include, "On June 30th 2006, [Petitioner] was released from custody with no further Court dates since all charges were dismissed `with prejudice.'. . .[The indictment, trial and sentencing] is misleading to make believe a lawful indictment is valid to charges that were for [sic] fact dismissed `with prejudice.'" Doc. 18 at 16. Petitioner further alleges, "Here [P]inal county officials cover-ups were to hinder facts for a [sic] unlawful convictions. Altered court records, Bribing Judge to date fraudulent complaints and warrant after the unlawful arrest on July 6, 2006." Id. at 27. Petitioner also states, "As the trial court order states, Petitioner claimed his release order was altered to remove the words `with-prejudice.'" Id. at 33. Petitioner also claimed, "[the] Detective . . . and [the] Deputy County Attorney . . . refused to tell the Grand Jury that all charges from June 23 and 28, 2006, were dismissed `with prejudice.'" Id. at 50.

Attached to his objections at page 76, Petitioner has an order from a Pinal County Court setting his release conditions following a preliminary hearing. Doc. 18 at 76. Petitioner was released on his own recognizance ("OR"). Id. Petitioner has hand written under the section stating that he was released OR that it used to say "with prejudice" but someone reacted or deleted that information.

Petitioner has no evidence other than his own self-serving statements that this document ever said "with prejudice." Moreover, Petitioner's statements lack credibility because the document itself merely sets release conditions. It does not "dismiss" the charges against Petitioner such that the words with prejudice or without prejudice would logically have been present. Further, it is a preprinted form, and there is no space on it for any additional information. Thus, Petitioner's theory that the charges against him were ever dismissed with prejudice, but that someone altered the record to reflect otherwise, is not substantial and his appellate counsel was not ineffective for not raising it.

B. Conclusion on substantiality

As recounted above, the Court finds that none of Petitioner's claims are substantial. Therefore, Petitioner's allegation that his appellate counsel was ineffective for not raising these claims does not overcome Petitioner's default of these claims. Accordingly, Petitioner's objection to the R&R's conclusion that his claims are procedural defaulted is overruled.

C. Result of Default

The Court agrees with the recommendation of the R&R that this Court find that all of Petitioner's claims in his Petition were not exhausted, were procedurally defaulted and that Petitioner has not shown cause to excuse the default nor has he shown a miscarriage of justice. See Doc. 15 at 11. Further, as indicated above, Petitioner did not object to the conclusion that his claims were defaulted, but instead suggested that such default should be excused by ineffective assistance of counsel. The Court, having overruled that objection, will accept the recommendation of the R&R and deny the Petition.

IV. Conclusion

Based on the foregoing,

IT IS ORDERED that the Report and Recommendation (Doc. 15) is accepted as modified to address Petitioner's objections. The objections (Doc. 18) are overruled. The Petition is denied, with prejudice, and the Clerk of the Court shall enter judgment accordingly.

IT IS FURTHER ORDERED that pursuant to Rule 11 of the Rules Governing Section 2254 Cases, in the event Petitioner files an appeal, the Court denies issuance of a certificate of appealability because denial of the Petition is based on a plain procedural bar and jurists of reason would not find this Court's procedural ruling debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).