REPORT AND RECOMMENDATION

CAMILLE D. BIBLES, Magistrate Judge.

TO THE HONORABLE SUSAN R. BOLTON:

Petitioner Carnell Dargen, proceeding pro se and in forma pauperis, filed a petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on December 3, 2018, challenging his conviction for possession of methamphetamine. Respondents docketed their answer to the petition for habeas corpus relief on May 6, 2019 (ECF No. 8), and Dargen did not file a reply to the answer to his petition.

I Background

The following facts and procedural history are taken from the Arizona Court of Appeals' decision denying Dargen's direct appeal:

State v. Dargen, 2015 WL 5309396, at *1-2 (Ariz. Ct. App. Sept. 10, 2015).3

Dargen was appointed appellate counsel, who filed an Anders brief. Id. at *1. "Dargen was given the opportunity to file a supplemental brief in propria persona but did not do so." Id. The state appellate court "searched the record for fundamental error and [] found none." Id.

Dargen applied for a state writ of habeas corpus pursuant to Rule 32 of the Arizona Rules of Criminal Procedure. (ECF No. 8-1 at 28). Dargen's post-conviction counsel filed a Notice of Completion, stating he had reviewed the record and discussed the matter with Dargen, and counsel could find no legitimate claim to raise on Dargen's behalf. (ECF No. 8-1 at 32). Dargen filed a pro per petition for Rule 32 relief, (ECF No. 8-1 at 39-48), asserting the evidence was insufficient to support his conviction, inter alia because the State had not processed the toolbox containing the methamphetamine for fingerprints or introduced evidence of his fingerprints on the toolbox. (ECF No. 8-1 at 41-42). Dargen also maintained the jury was improperly instructed regarding whether "mere presence" was sufficient to establish possession. (Id.).

In his Rule 32 action Dargen also asserted he should be granted post-conviction relief because there was insufficient evidence of his "criminal intent" to support his conviction for possession of danger drugs in violation of Arizona Revised Statutes § 13-3407." (ECF No. 8-1 at 39). Dargen argued:

(ECF No. 8-1 at 40-41). Dargen alleged there were "insufficient" articulable facts "to support reasonable suspicion, no statement was provided by the owner of the property," and that he had an "expectation of privacy," presumably in the shed or the contents of the tool box. (ECF No. 8-1 at 41). He further asserted that, because Officer Plumb "deviated from standard police procedure by his own admission," "legal defense counsel is prejudice from establishing rather the alleged confession by the Defendant was voluntary or involuntary due to negligence with malice intent. See Miranda . . . [sic]" (ECF No. 8-1 at 42). Notably, Dargen did not mention ineffective assistance of counsel or Strickland in his Rule 32 pleading, and the only constitutional violations he asserted in that pleading were a violation of his right to due process and, broadly construing his reference to the Sixth Amendment without referring to ineffective assistance of counsel, his right to a fair trial.

The state trial habeas court summarily denied relief, concluding Dargen "failed to provide adequate grounds for relief pursuant to Rule 32;" "that his claims are not such that they are grounds under Rule 32;" and that he had "demonstrated no colorable claim" for relief "pursuant to Rule 32." (ECF No. 8-1 at 50). Dargen sought review by the Arizona Court of Appeals. In his petition for review Dargen asserted, inter alia:

(ECF No. 8-1 at 53). Dargen also clearly asserted a violation of his Miranda rights, alleging: "When the alleged confession was made the defendant was already detained and handcuffed for trespassing." (ECF No. 8-1 at 54). Broadly construing his pleadings he further asserted his trial counsel was ineffective for failing to move to suppress the evidence of his confession:

(ECF No. 8-1 at 53). He further alleged counsel should have moved to suppress the evidence of his confession based on the purported violation of his Miranda rights, and that "trial counsel refused or failed to have the baggie tested for fingerprints or DNA belonging to the defendant." (ECF No. 8-1 at 55-56).

The Arizona Court of Appeals granted review but summarily denied Rule 32 relief on November 28, 2017. See State v. Dargen, 2017 WL 5709598 (Ariz. Ct. App. 2017).

Dargen asserts he is entitled to federal habeas relief because he was denied the effective assistance of counsel; he contends counsel failed to conduct an adequate pre-trial investigation, failed to adequately consult with him prior to trial, and failed to present mitigating evidence at sentencing.5 (ECF No. 1 at 6). Dargen further argues the evidence introduced at his trial was legally insufficient to support his conviction because "the conviction was based on the testimony of the officer and that alone," and the "baggie" containing the methamphetamine was never subjected to DNA testing or fingerprinted. (ECF No. 1 at 7-8). Dargen also alleges the prosecutor used perjured testimony to obtain a conviction. (ECF No. 1 at 9).6 Respondents contend Dargen's claims are procedurally barred and without merit.

II. Exhaustion and procedural default

Absent specific circumstances, the Court may only grant federal habeas relief on the merits of a claim which has been "properly" exhausted in the state courts. See O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). To properly exhaust a federal habeas claim the petitioner must afford the state courts the opportunity to rule upon the merits of the claim by "fairly presenting" the claim to the state's "highest" court in a procedurally correct manner. E.g., Castille v. Peoples, 489 U.S. 346, 351 (1989); Rose v. Palmateer, 395 F.3d 1108, 1110 (9th Cir. 2005). In non-capital cases arising in Arizona, the "highest court" test is satisfied if the habeas petitioner presented his claim to the Arizona Court of Appeals. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Date v. Schriro, 619 F.Supp.2d 736, 762-63 (D. Ariz. 2008). To fairly present a claim in the state courts, thereby exhausting the claim, the petitioner must present to the state courts the "substantial equivalent" of the claim presented in federal court. Picard v. Connor, 404 U.S. 270, 278 (1971); Libberton v. Ryan, 583 F.3d 1147, 1164 (9th Cir. 2009). Full and fair presentation requires a petitioner to present the substance of his claim to the state courts, including a reference to the operative federal constitutional guarantee relied on by the petitioner and a statement the facts supporting the claim. See Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009); Lopez v. Schriro, 491 F.3d 1029, 1040 (9th Cir. 2007).

A petitioner has not exhausted a federal habeas claim if he still has the right to raise the claim "by any available procedure" in the state courts. 28 U.S.C. § 2254(c). Accordingly, the exhaustion requirement is satisfied if the petitioner is procedurally barred from pursuing a previously un-presented claim in the state's "highest" court. See Woodford v. Ngo, 548 U.S. 81, 92-93 (2006).

Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010).

Because the Arizona Rules of Criminal Procedure regarding timeliness, waiver, and the preclusion of claims bar Dargen from returning to the state courts to exhaust any unexhausted federal habeas claim, he has exhausted but procedurally defaulted any claim not previously properly presented to the Arizona Court of Appeals. See Insyxiengmay v. Morgan, 403 F.3d 657, 665 (9th Cir. 2005); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002).

Procedural default also occurs when a petitioner did present a claim to the Arizona Court of Appeals, but the appellate court did not address the merits of the claim because it found the claim precluded by a state procedural rule. See, e.g., Atwood v. Ryan, 870 F.3d 1033, 1059 (9th Cir. 2017).

McNeill v. Polk, 476 F.3d 206, 211 (4th Cir. 2007) (internal citations and quotations omitted).

If a prisoner has procedurally defaulted a claim in the state courts he is not entitled to a review of the merits of the claim in a federal habeas action absent a showing of both cause and prejudice. E.g., Ellis v. Armenakis, 222 F.3d 627, 632 (9th Cir. 2000). The Court may also consider the merits of a procedurally defaulted claim if the failure to consider the merits of the claim will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750; Atwood, 870 F.3d at 1059; Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011). "Cause" is a legitimate excuse for the petitioner's procedural default of the claim, i.e., an objective factor outside of his control, and "prejudice" is actual harm resulting from the alleged constitutional violation. Cooper, 641 F.3d at 327. To establish prejudice, the petitioner must show that the alleged error "worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Id. It is the petitioner's burden to establish both cause and prejudice with regard to their procedural default of a federal habeas claim in the state courts. Correll v. Stewart, 137 F.3d 1404, 1415 (9th Cir. 1998).

A petitioner meets the "fundamental miscarriage of justice" exception by "establish[ing] that under the probative evidence he has a colorable claim of factual innocence." Sawyer v. Whitley, 505 U.S. 333. 339 (1992) (internal quotation marks omitted). To satisfy the "fundamental miscarriage of justice" standard, a petitioner must establish by clear and convincing evidence that no reasonable fact-finder could have found him guilty of the offenses charged. See Dretke v. Haley, 541 U.S. 386, 393 (2004); Wildman v. Johnson, 261 F.3d 832, 842-43 (9th Cir. 2001).

Dargen did not raise any claims for relief in his direct appeal. In his Rule 32 action he asserted his insufficiency of the evidence claim in his petition to the state trial court, which summarily concluded he failed to state a colorable claim for relief. In his petition for review Dargen asserted both his insufficiency of the evidence claim and an ineffective assistance of counsel claim, and the state appellate court summarily concluded the trial court had not abused its discretion in denying relief.

Dargen did not properly exhaust his insufficiency of the evidence claim in the state courts; such a claim was required to be presented in his direct appeal. See Ariz. R. Crim. P. 32.1(d)-(h), 32.2(a) (precluding claims not raised on direct appeal or in prior post-conviction relief petitions). The state trial court impliedly found the claim procedurally barred by concluding the claim not "grounds" for relief pursuant to Rule 32.

Nor Dargen did properly exhaust his ineffective assistance of counsel claim in the state courts because it was not properly presented to the Arizona Court of Appeals; Dargen failed to raise the claim in the state habeas trial court. See Ariz. R. Crim. P. 32.9(c)(1)(ii) (stating a petition for review shall contain "[t]he issues which were decided by the trial court and which the defendant wishes to present" for review); State v. Weiber, 2013 WL 268696, at *1 (Ariz. Ct. App. Jan. 24, 2013), citing State v. Ramirez, 126 Ariz. 464, 468 (Ariz. Ct. App. 1980) (holding a reviewing court will not consider on review issues not presented to the trial court). See also Pinzon v. Ryan, 2015 WL 11071468, at *5 (D. Ariz. Sept. 25, 2015) ("The [state] appellate court found that Petitioner did not raise these issues in the petition for post-conviction relief that he filed in the trial court, and under Rule 32.9(c) he was precluded from presenting those issues on appeal."); Hershfeldt v. Schriro, 2007 WL 951965, at *1 (D. Ariz. Mar. 28, 2007) ("Under state law a claim may not be raised for the first time in a petition for review from the denial of post-conviction relief . . ."). Therefore, Dargen did not properly exhaust the ineffective assistance of counsel claims presented in his federal habeas petition because he did not properly present them to the Arizona Court of Appeals; the appellate court impliedly found review of these two claims precluded by an adequate and independent state rule.7 Furthermore, Dargen never presented a prosecutorial misconduct claim to the state courts, either on appeal or in his Rule 32 action.

It would be futile for Dargen to return to the state courts to try to exhaust his claims because a successive petition for post-conviction relief would be untimely and his claims would be precluded from review because they could have been properly raised on direct appeal or in his prior post-conviction proceeding. See Ariz. R. Crim. P. 32.2(a)(3); see also State v. Bennett, 213 Ariz. 562, 566 (2006) ("As a general rule, when [claims] are raised, or could have been raised, in a Rule 32 post-conviction proceeding, subsequent claims [] will be deemed waived and precluded.") (internal quotation omitted).

Dargen has not responded to Respondents' contention that he failed to properly exhaust his claims in the state courts and, therefore, he fails to establish cause for or prejudice arising from his procedural default of his claims. Similarly, he fails to make an adequate showing that a fundamental miscarriage of justice will occur absent the consideration of his defaulted claims for relief.

III. Conclusion

Dargen procedurally defaulted his federal habeas claims in the state courts, and he has not made any showing of cause or prejudice, or actual innocence, sufficient to overcome his procedural default of these claims.

IT IS THEREFORE RECOMMENDED that Dargen's petition seeking a federal writ of habeas corpus (ECF No. 1) be DENIED.

This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.

Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed seventeen (17) pages in length.

Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will constitute a waiver of a party's right to appellate review of the findings of fact and conclusions of law in an order or judgment entered pursuant to the recommendation of the Magistrate Judge.

Pursuant to 28 U.S.C. foll. § 2254, R. 11, the District Court must "issue or deny a certificate of appealability when it enters a final order adverse to the applicant." The undersigned recommends that, should the Report and Recommendation be adopted and, should Dargen seek a certificate of appealability, a certificate of appealability should be denied because he has not made a substantial showing of the denial of a constitutional right.