ERIC J. MARKOVICH, Magistrate Judge.
Petitioner Albert Robert Gaxiola filed his pro se petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging his convictions for felony murder, aggravated assault, first-degree burglary, attempted first-degree murder, aggravated robbery, and armed robbery. (Doc. 1). Petitioner raises four grounds for relief: (1) the State presented inconsistent theories at the separate trials of two defendants, arguing each one was the sole organizer and planner; (2) the trial court denied Petitioner's request for an interrogatory regarding whether he was in the house or not at the time of the crime and therefore convicted him on a theory not recognized by state or federal law; (3) insufficient evidence to convict for burglary or robbery as predicate felonies for felony murder; and (4) ineffective assistance of appellate counsel ("IAC") for allowing the Arizona Court of Appeals ("COA") to consider the wrong facts and for failing to raise and preserve 404(b) evidentiary issues. Respondents filed an Answer contending that Grounds One, Two, and Three are technically exhausted and procedurally defaulted, and that Ground Four is unexhausted and procedurally barred. (Doc. 11). Respondents further state that Petitioner has failed to show cause and prejudice or a fundamental miscarriage of justice to excuse the default of his claims. Petitioner did not file a reply.
The Court finds that all of Petitioner's claims are technically exhausted and procedurally defaulted and thus not properly before this Court for review. The Court further finds that Petitioner does not demonstrate cause and prejudice or a fundamental miscarriage of justice to excuse the procedural default of his claims. Accordingly, the petition will be denied.
A Pima County Superior Court jury found Petitioner guilty of two counts of felony murder, two counts of aggravated assault, first-degree burglary, first-degree murder, attempted first-degree murder, aggravated robbery, and armed robbery. (Ex. A). Petitioner was sentenced to two consecutive life sentences for the felony murders and consecutive sentences on the remaining counts totaling 54 years. Id. The Arizona COA summarized the facts of the case as follows:
(Ex. E at ¶¶ 2-3).
Following his conviction, Petitioner sought relief in the Arizona COA. Appointed counsel filed a brief presenting five issues for review: (1) insufficient evidence to convict for felony murder where the evidence showed Petitioner was an accomplice, but not a principal, to the predicate felonies; (2) the trial court erroneously permitted the State to argue that Petitioner could be convicted based on accomplice liability; (3) count four should be vacated because Arizona does not recognize the crime of attempted felony murder; (4) the consecutive sentences for counts three through eight should be concurrent; and (5) the restitution order should be vacated. (Ex. B). On October 18, 2012 the COA affirmed in part and vacated and remanded in part. (Ex. E). Specifically, the court found that accomplice liability applies to felony murder to the extent the defendant is an accomplice to the predicate felony, and therefore the trial court did not err in instructing the jury on accomplice liability. The court vacated Petitioner's aggravated robbery sentence and remanded for resentencing, and vacated the restitution order and remanded for a new restitution hearing. Petitioner filed a petition for review with the Arizona Supreme Court, which the court denied on May 30, 2013. (Ex. F).
On December 12, 2013, Petitioner was resentenced to a concurrent term on the aggravated robbery charge. (Ex. H). Petitioner then filed a second appeal challenging his new sentence and the restitution award. Appointed counsel filed an Anders brief, and Petitioner never filed a pro se petition. (Ex. I). On June 5, 2014 the COA found no reversible error and affirmed the resentencing order and award of restitution. Id. Petitioner did not file a petition for review with the Arizona Supreme Court.
On May 30, 2013 Petitioner initiated proceedings in Pima County Superior Court for post-conviction relief ("PCR"). (Ex. K). Appointed counsel filed a petition raising five issues: (1) the COA affirmed Petitioner's convictions based on clearly erroneous facts; (2) appellate counsel was ineffective for failing to argue the issue of the trial court precluding an important witness; (3) ineffective assistance of trial and appellate counsel for failing to raise and preserve Rule 404(b) evidentiary issues; (4) the trial court interfered with Petitioner presenting his theory of the case; and (5) the trial court improperly excluded testimony by Petitioner's crime scene expert. (Ex. L). The trial court denied PCR on August 22, 2014. (Ex. O).
Petitioner filed a petition for review with the Arizona COA and alleged that the trial court erred when (1) it refused to consider Petitioner's due process, constitutional claim that the COA relied on erroneous facts when it affirmed Petitioner's convictions, and (2) it failed to consider Petitioner's ineffective assistance of appellate counsel claim. (Ex. P). On February 10, 2015 the COA issued its decision granting review and denying relief. (Ex. Q). Petitioner did not file a petition for review with the Arizona Supreme Court.
Petitioner filed his PWHC in this Court on January 20, 2016, asserting four grounds for relief. (Doc. 1). Petitioner requests that the Court vacate his convictions.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") limits the federal court's power to grant a petition for a writ of habeas corpus on behalf of a state prisoner. First, the federal court may only consider petitions alleging that a person is in state custody "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Sections 2254(b) and (c) provide that the federal courts may not grant habeas corpus relief, with some exceptions, unless the petitioner exhausted state remedies. Additionally, if the petition includes a claim that was adjudicated on the merits in state court proceedings, federal court review is limited by section 2254(d).
A state prisoner must exhaust his state remedies before petitioning for a writ of habeas corpus in federal court. 28 U.S.C. § 2254(b)(1) & (c); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). To exhaust state remedies, a petitioner must afford the state courts the opportunity to rule upon the merits of his federal claims by fairly presenting them to the state's highest court in a procedurally appropriate manner. Baldwin v. Reese, 541 U.S. 27, 29 (2004) ("[t]o provide the State with the necessary opportunity, the prisoner must fairly present her claim in each appropriate state court . . . thereby alerting the court to the federal nature of the claim."). In Arizona, unless a prisoner has been sentenced to death, the highest court requirement is satisfied if the petitioner has presented his federal claim to the Arizona COA, either through the direct appeal process or post-conviction proceedings. Crowell v. Knowles, 483 F.Supp.2d 925, 931-33 (D. Ariz. 2007).
A claim is fairly presented if the petitioner describes both the operative facts and the federal legal theory upon which the claim is based. Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007). The petitioner must have "characterized the claims he raised in state proceedings specifically as federal claims." Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir. 2000) (emphasis in original), opinion amended and superseded, 247 F.3d 904 (9th Cir. 2001). "If a petitioner fails to alert the state court to the fact that he is raising a federal constitutional claim, his federal claim is unexhausted regardless of its similarity to the issues raised in state court." Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996). "Moreover, general appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair trial, are insufficient to establish exhaustion." Hivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999).
However, "[a] habeas petitioner who [fails to properly exhaust] his federal claims in state court meets the technical requirements for exhaustion" if there are no state remedies still available to the petitioner. Coleman v. Thompson, 501 U.S. 722, 732 (1991). "This is often referred to as `technical' exhaustion because although the claim was not actually exhausted in state court, the petitioner no longer has an available state remedy." Thomas v. Schriro, 2009 WL 775417, *4 (D. Ariz. March 23, 2009). "If no state remedies are currently available, a claim is technically exhausted," but, as discussed below, the claim is procedurally defaulted and is only subject to federal habeas review in a narrow set of circumstances. Garcia v. Ryan, 2013 WL 4714370, *8 (D. Ariz. Aug. 29, 2013).
If a petitioner fails to fairly present his claim to the state courts in a procedurally appropriate manner, the claim is procedurally defaulted and generally barred from federal habeas review. Ylst v. Nunnemaker, 501 U.S. 797, 802-05 (1991). There are two categories of procedural default. First, a claim may be procedurally defaulted in federal court if it was actually raised in state court but found by that court to be defaulted on state procedural grounds. Coleman, 501 U.S. at 729-30. Second, the claim may be procedurally defaulted if the petitioner failed to present the claim in a necessary state court and "the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred." Id. at 735 n. 1; O'Sullivan, 526 U.S. at 848 (when time for filing state court petition has expired, petitioner's failure to timely present claims to state court results in a procedural default of those claims); Smith v. Baldwin, 510 F.3d 1127, 1138 (9th Cir. 2007) (failure to exhaust claims in state court resulted in procedural default of claims for federal habeas purposes when state's rules for filing petition for post-conviction relief barred petitioner from returning to state court to exhaust his claims).
When a petitioner has procedurally defaulted his claims, federal habeas review occurs only in limited circumstances. "A state prisoner may overcome the prohibition on reviewing procedurally defaulted claims if he can show cause to excuse his failure to comply with the state procedural rule and actual prejudice resulting from the alleged constitutional violation." Davila v. Davis, 137 S.Ct. 2058, 2064 (2017) (internal quotations and citation omitted); Martinez v. Ryan, 132 S.Ct. 1309, 1316 (2012) ("A prisoner may obtain federal review of a defaulted claim by showing cause for the default and prejudice from a violation of federal law."). Cause requires a showing "that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule . . . [such as] a showing that the factual or legal basis for a claim was not reasonably available to counsel, . . . or that some interference by officials made compliance impracticable." Murray v. Carrier, 477 U.S. 478, 488 (1986) (internal quotations and citations omitted). Prejudice requires "showing, not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original). The Court need not examine the existence of prejudice if the petitioner fails to establish cause. Engle v. Isaac, 456 U.S. 107, 134 n. 43 (1982); Thomas v. Lewis, 945 F.2d 1119, 1123 n. 10 (9th Cir. 1991). Additionally, a habeas petitioner "may also qualify for relief from his procedural default if he can show that the procedural default would result in a `fundamental miscarriage of justice.'" Cook v. Schriro, 538 F.3d 1000, 1028 (9th Cir. 2008) (quoting Schlup v. Delo, 513 U.S. 298, 321 (1995)). This exception to the procedural default rule is limited to habeas petitioners who can establish that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup, 513 U.S. at 327; see also Murray, 477 U.S. at 496; Cook, 538 F.3d at 1028.
In Ground One, Petitioner contends that the State presented inconsistent theories about who planned and organized the home invasion because during Forde's trial, the State argued that she was the sole organizer and planner, and during Petitioner's trial, the State also argued that he was the sole organizer and planner. Despite checking the box on his habeas form that this claim was presented to the COA, Petitioner never presented this argument during his direct appeal or PCR proceedings.
Claims not previously presented to the state courts on either direct appeal or collateral review are generally barred from federal review because any attempt to return to state court to present them would be futile unless the claims fit into a narrow range of exceptions. 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), 32.4(a) (time bar), 32.9(c) (petition for review must be filed within thirty days of trial court's decision). Because these rules have been found to be consistently and regularly followed, and because they are independent of federal law, either their specific application to a claim by an Arizona court, or their operation to preclude a return to state court to exhaust a claim, will procedurally bar subsequent review of the merits of such a claim by a federal habeas court. Stewart v. Smith, 536 U.S. 856, 860 (2002); Ortiz v. Stewart, 149 F.3d 923, 931-32 (9th Cir. 1998) (Rule 32 is strictly followed); State v. Mata, 916 P.2d 1035, 1050-52 (Ariz. 1996) (waiver and preclusion rules strictly applied in post-conviction proceedings).
Arizona Rules of Criminal Procedure regarding timeliness and preclusion prevent Petitioner from now exhausting his claims in Ground One in state court. Accordingly, this claim is both technically exhausted and procedurally defaulted and thus not properly before this Court for review. See Crowell, 483 F.Supp.2d at 931-33; Coleman, 501 U.S. at 732, 735 n. 1; Garcia, 2013 WL 4714370 at * 8.
A federal court may not consider the merits of a procedurally defaulted claim unless the petitioner can demonstrate cause for his noncompliance and actual prejudice, or establish that a miscarriage of justice would result from the lack of review. See Schlup v. Delo, 513 U.S. 298, 321 (1995). Petitioner has failed to show cause for, or prejudice arising from, his procedural default of the claim, and the Court can glean none from the record before it. See Martinez, 132 S. Ct. at 1316; Murray, 477 U.S. at 488. Accordingly, relief on the merits of this claim is precluded.
In Ground Two, Petitioner claims that the trial court denied his request for an interrogatory about whether he was in the house or not, and as a result, the jury was able to convict him on a theory not recognized by state or federal law. As with Ground One, despite checking the box on his habeas form that this issue was presented to the COA, Petitioner never presented the claims in Ground Two in his direct appeal or PCR proceedings.
Arizona Rules of Criminal Procedure regarding timeliness and preclusion prevent Petitioner from now exhausting the claims in Ground Two in state court. Accordingly, these claims are both technically exhausted and procedurally defaulted and thus not properly before this Court for review. See Crowell, 483 F.Supp.2d at 931-33; Coleman, 501 U.S. at 732, 735 n. 1; Garcia, 2013 WL 4714370 at * 8. Petitioner has failed to show cause for, or prejudice arising from, his procedural default of these claims, and the Court can glean none from the record before it. See Martinez, 132 S. Ct. at 1316; Murray, 477 U.S. at 488. Accordingly, the Court finds that the claims in Ground Two are technically exhausted and procedurally defaulted, and that Petitioner has failed to show cause and prejudice for the default. Habeas relief on the merits of this claim is therefore precluded.
In Ground Three, Petitioner argues that there was insufficient evidence to convict him of burglary or robbery as the predicate felonies for felony murder, notwithstanding the fact that the murders were not committed in the furtherance of any robbery. The Court finds that Petitioner failed to properly present this claim to the state courts.
To properly exhaust a claim, a petitioner must "give the Arizona courts a `fair opportunity' to act on his federal [] claim before presenting it to the federal courts." Castillo v. McFadden, 399 F.3d 993, 998 (9th Cir. 2004). This "provides a simple and clear instruction to potential litigants: before you bring any claims to federal court, be sure that you first have taken each one to state court." Rose v. Lundy, 455 U.S. 509, 520 (1982). As this Court has explained, in order to fairly present and properly exhaust his claims, "a petitioner [must] describe both the operative facts and the federal legal theory to the state courts. It is not enough that all of the facts necessary to support the federal claim were before the state court or that a `somewhat similar' state law claim was raised." Date v. Schriro, 619 F.Supp.2d 736, 764-65 (D. Ariz. 2008) (quoting Reese, 541 U.S. at 28)).
Here, on direct appeal, Petitioner argued that there was insufficient evidence to convict him of felony murder because the evidence showed that he was an accomplice, not a principal, to the predicate felonies. Similarly, in his Rule 32 petition, Petitioner argued that because he was not a participant in the predicate felonies, he could not be convicted of felony murder.
Arizona Rules of Criminal Procedure regarding timeliness and preclusion prevent Petitioner from now exhausting Ground Three in state court. Accordingly, the claim is both technically exhausted and procedurally defaulted and thus not properly before this Court for review. See Crowell, 483 F.Supp.2d at 931-33; Coleman, 501 U.S. at 732, 735 n. 1; Garcia, 2013 WL 4714370 at * 8. Petitioner has failed to show cause for, or prejudice arising from, his procedural default of these claims, and the Court can glean none from the record before it. See Martinez, 132 S. Ct. at 1316; Murray, 477 U.S. at 488. Accordingly, the Court finds that Petitioner's claims in Ground Three are technically exhausted and procedurally defaulted, and that Petitioner has failed to show cause and prejudice for the default. Habeas relief on the merits of this claim is therefore precluded.
In Ground Four, Petitioner argues that his appellate counsel was ineffective for allowing the COA to consider the wrong facts and for failing to raise and preserve 404(b) evidentiary issues. The Court finds that Petitioner failed to fairly present his claims in Ground Four to the state courts because he failed to argue the federal constitutional basis for the claims. And, even if Petitioner had properly presented the claims as federal claims, the Court further finds that Petitioner failed to properly exhaust the Rule 404(b) portion of his claim by failing to present it to the Arizona COA, and that Petitioner failed to properly exhaust the wrong facts portion of his claim by failing to present it to the state courts in a procedurally appropriate manner.
In Arizona, exhaustion is satisfied if a petitioner presents the federal basis of his claims to the COA through either the direct appeal process or PCR proceedings. "Fair presentation requires a petitioner to describe both the operative facts and the federal legal theory to the state courts. It is not enough that all of the facts necessary to support the federal claim were before the state court or that a `somewhat similar' state law claim was raised." Date, 619 F.Supp.2d at 764 (quoting Reese, 541 U.S. at 28 (stating that a reference to ineffective assistance of counsel does not alert the court to federal nature of the claim)). A petitioner's "conclusory, scattershot citation of federal constitutional provisions, divorced from any articulated federal legal theory . . ." fails to satisfy the fair presentment requirement, and "[e]xhaustion demands more than drive-by citation, detached from any articulation of an underlying federal legal theory." Castillo, 399 F.3d at 1002-03.
Here, Petitioner argued in his Rule 32 petition that trial counsel was ineffective for failing to object to the introduction of other bad act evidence under Rule 404(b) and that appellate counsel was ineffective for failing to raise this issue on appeal as fundamental error.
In his reply brief, Petitioner also argued that appellate counsel was ineffective for allowing the COA to consider the wrong facts and again cited Evitts. (Ex. N at 3). The basis of Petitioner's argument was that the COA relied on the wrong facts in affirming Petitioner's convictions on direct appeal, the State also relied on those erroneous facts in its response to the Rule 32 petition, and it was appellate counsel's fault for allowing the COA to rely on the wrong facts. This fails to meet the fair presentation requirement because Petitioner failed to argue a federal constitutional basis for his claim that appellate counsel was ineffective for allowing the COA to consider the wrong facts.
In denying PCR, the trial court found that as to the 404(b) claim, Petitioner misstated the record because "this issue-which had been the subject of motions by both parties—was addressed and the court ruled that this evidence was admissible as both an intrinsic part of the crimes charged and also as admissible for appropriate purposes under. . . Rule 404(b)." (Ex. O at 7). The court further found that,
Id. at 7-8. The court concluded that, although it addressed each of Petitioner's IAC claims at face value,
Id. at 10 (internal citation omitted).
Exhaustion requires that Petitioner fairly present his claims to the COA. After the trial court denied PCR, Petitioner filed a petition for review with the Arizona COA and presented two issues for review: 1) whether the trial court erred when it refused to consider Petitioner's due process, constitutional claim that the COA relied on erroneous facts when affirming Petitioner's convictions on direct appeal; and 2) whether the trial court erred by failing to consider Petitioner's claim of IAC of appellate counsel. (Ex. P). Petitioner alleged that the trial court "did not deal with the issue of ineffective assistance of appellate counsel" and that appellate counsel "was remiss in failing to properly review the case in order to ensure that [the COA] did not cite to erroneous facts." (Ex. P at 13). Petitioner referenced Strickland v. Washington, 466 U.S. 668 (1984), the Sixth Amendment, and the due process and equal protection clauses. Petitioner did not specifically argue that appellate counsel was ineffective for failing to raise a Rule 404(b) issue.
In denying relief on the petition for review, the COA noted that although Petitioner claimed that the trial court did not address his claim that appellate counsel was ineffective for failing to ensure that the COA did not rely on erroneous facts, "a trial court is not required to address claims raised for the first time in a reply." (Ex. Q at ¶5). The COA therefore concluded that the trial court did not err in declining to review the claim. Id. The COA also noted that during Petitioner's direct appeal proceedings, appellate counsel filed a motion for reconsideration arguing that the court misconstrued the evidence, which the court denied. As Petitioner did not raise the 404(b) issue in his petition for review, the COA did not address it.
In sum, the wrong facts portion of Ground Four was never adjudicated on the merits
Arizona Rules of Criminal Procedure regarding timeliness and preclusion prevent Petitioner from now exhausting Ground Four in state court. Accordingly, these claims are both technically exhausted and procedurally defaulted and thus not properly before this Court for review. See Crowell, 483 F.Supp.2d at 931-33; Coleman, 501 U.S. at 732, 735 n. 1; Garcia, 2013 WL 4714370 at * 8. Petitioner has failed to show cause for, or prejudice arising from, his procedural default of these claims, and the Court can glean none from the record before it. See Martinez, 132 S. Ct. at 1316; Murray, 477 U.S. at 488. Accordingly, the Court finds that Petitioner's claims in Ground Four are technically exhausted and procedurally defaulted, and that Petitioner has failed to show cause and prejudice for the default. Habeas relief on the merits of this claim is therefore precluded.
For the foregoing reasons,
In addition, when denying relief on Petitioner's petition for review after the trial court denied PCR, the COA noted that to the extent Petitioner was arguing that "his convictions violate due process because there was insufficient evidence to support his convictions or because the prosecutor engaged in misconduct, those claims are precluded because they could have been raised on appeal." (Ex. Q at ¶4 n. 2) (citing Ariz. R. Crim. P. 32.2(a)(3)). Thus, the state court applied an express procedural bar and this Court is precluded from addressing the merits of this claim on habeas review.
As in his direct appeal, Petitioner also based his arguments in his Rule 32 petition on Arizona case law and statutes, with a brief statement that "his conviction was obtained in violation of his Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution." (Ex. L at 7).
