JOHN Z. BOYLE, Magistrate Judge.
TO THE HONORABLE JAMES A. TEILBORG, SENIOR UNITED STATES DISTRICT JUDGE:
Petitioner Christopher Alonso has filed a pro se Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc 5.) Petitioner requests this Court hold all of his claims are exhausted, or, in the alternative, grant a stay in this matter. (Doc. 10.)
On February 20, 2015, Petitioner filed a Motion in the Arizona Court of Appeals requesting permission to file a second PCR petition on the issues he presents to this Court. On March 17, 2015, the Arizona Court of Appeals denied the motion to file supplemental petition in the superior court. On October 16, 2015, Petitioner filed a 116-page pro se habeas corpus petition in the Arizona Supreme Court arguing the same claims he presents to this Court. The petition was denied. Regardless of whether Petitioner's claims are exhausted, Petitioner presents no new grounds to believe a return to the state courts on his claims is anything other than futile.
Petitioner was indicted by the State of Arizona on January 24, 2007. (Doc. 13-1, Ex. B, at 16.)
The Arizona Court of Appeals summarized the trial proceedings and sentences:
State v. Alonso, No. 1 CA-CR 13-0818 PRPC, 2015 WL 5706921, at *1 (Ariz. Ct. App. Sept. 29, 2015).
On August 4, 2010, Petitioner filed a timely appeal from the convictions and sentences. (Doc. 65-1, Ex. A, at 45.) In his appeal, Petitioner argued "that the trial court abused its discretion by denying his request for new counsel." State v. Alonso, No. 1 CA-CR 09-0887, 2010 WL 5545212, at *1 (Ariz. Ct. App. Dec. 28, 2010). On December 28, 2010, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. Alonso, 2015 WL 5706921, at *1.
On May 24, 2011, the Arizona Supreme Court denied a Petition for Review. (Doc. 65-1, Ex. E, at 101.) On June 27, 2011, the Arizona Court of Appeals issued the Mandate from Petitioner's direct appeal. (Doc. 65-1, Ex. E, at 100.)
On March 5, 2012, Petitioner filed a notice of post-conviction relief. (Doc. 65-1, Ex. E, at 110.) On October 11, 2012, Petitioner, through counsel Michael Kimerer, filed a Petition for Post-Conviction Relief. (Doc. 65-1, Ex. I, at 115.) Petitioner alleged:
(Id. at 115-38.)
On February 27, 2013, Petitioner, through counsel, filed an Amended Petition for Post-Conviction Relief. (Doc. 65-1, Ex. L, at 162.)
On November 15, 2013, Petitioner filed a Petition for Review with the Arizona Court of Appeals. (Doc. 65-1, Ex. V, at 212-31.)
Alonso, 2015 WL 5706921, at *1. On February 20, 2015, Petitioner, through counsel, filed a Motion for Stay of Proceedings in the Arizona Court of Appeals and Leave to File Supplemental Petition in Superior Court. (Doc. 65-2, Ex. BB, at 34.) In the Motion, Petitioner argued for a stay so that he could file a new PCR petition to argue the same claim he presents in this habeas Petition: as a result of SB 1145/SB 1449, he was wrongfully convicted based upon improper burden-shifting in the self-defense instruction. (Id.)
On September 29, 2015, the Arizona Court of Appeals granted review but denied relief on the three grounds presented in the initial petition. Alonso, 2015 WL 5706921, at *1.
Petitioner did not file for review with the Arizona Supreme Court. (Doc. 5 at 6.) On December 18, 2015, the Arizona Court of Appeals issued a mandate. (Doc. 65-2, Ex. AA, at 32.)
On October 16, 2015, Petitioner filed a 116-page pro se habeas corpus petition in the Arizona Supreme Court arguing the SB 1145/SB 1449 issues he presents to this Court. (Doc. 65-3, Ex. HH, at 2-117.) On March 11, 2016, the Arizona Supreme Court denied the petition without explanation. (Doc. 65-4, Ex. II, at 2.)
On April 19, 2016, Petitioner filed a Motion for Clarification. (Doc. 5 at 5; Doc. 6-1 at 105.) On April 27, 2016, the Motion was denied. (Doc. 6-1 at 110.) On or about May 24, 2016, Petitioner submitted a Motion for Judicial Notice and Offer of Proof. (Doc. 6-1 at 112.) The Motion was not filed by the Arizona Court of Appeals because the court deemed the matter "closed on December 18, 2015." (Id.)
On June 29, 2016, Petitioner filed a habeas Petition, which was dismissed on August 3, 2016. (Docs. 1, 3.) On August 30, 2016, Petitioner filed an Amended Petition. (Doc. 5.) On May 19, 2017, Respondents filed a Limited Answer to the Petition. (Doc. 65.) On June 28, 2017, Petitioner filed a 242-page Reply. (Doc. 21.) In his Amended Petition, Petitioner raises the following grounds for relief:
(Doc. 11.)
On September 30, 2016, Petition filed a Motion for Clarification or Motion to Stay. (Doc. 10.) Petitioner requests this Court hold "all issues are exhausted at the State level" or alternatively grant a stay to allow Petitioner "to file a successor untimely PCR for issues relevant to ineffective assistance of PCR counsel." (Id. at 11.)
Generally, a habeas petition brought under 28 U.S.C. § 2254 may "not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1). 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' his claim in each appropriate state court. . . thereby alerting that court to the federal nature of the claim"). The requirement that a petitioner exhaust available state court remedies promotes comity by ensuring that the state courts have the first opportunity to address alleged violations of a state prisoner's federal rights. See Duncan v. Walker, 533 U.S. 167, 178 (2001); Coleman v. Thompson, 501 U.S. 722, 731 (1991), superseded in part by, 28 U.S.C. § 2255(b).
District courts may stay mixed federal habeas petitions—those containing both exhausted and unexhausted claims—to allow petitioners to present their unexhausted claims to the state courts without losing their place in federal court. The Supreme Court has instructed that a "stay and abeyance should be available only in limited circumstances" and is "only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court." Rhines v. Weber, 544 U.S. 269, 277 (2005). Under Rhines, a district court has limited discretion to hold in abeyance a habeas petition containing both exhausted and unexhausted claims (a mixed petition) to allow a petitioner to exhaust his claims while the federal proceedings are stayed. Rhines, 544 U.S. at 277. The stay and abeyance procedure is appropriate when: (1) there is good cause for petitioner's failure to exhaust his claims first in state court; (2) the unexhausted claims are potentially meritorious; and (3) there is no indication that the petitioner has engaged in intentionally dilatory litigation tactics. Id. at 277-278.
Here, Petitioner attempted to exhaust his claims in the state courts on two occasions. On February 20, 2015, Petitioner filed a Motion for Stay of Proceedings and Leave to File Supplemental Petition in Superior Court. (Doc. 65-2, Ex. BB, at 34.) In the Motion, Petitioner argued for a stay so that he could file a new PCR petition to argue the same claim he presents in this habeas Petition. On March 17, 2015, the Arizona Court of Appeals denied the motion to file supplemental petition in the superior court, finding the issue precluded because Petitioner "could" and "should" have raised the issue on direct appeal. (Doc. 65-2, Ex. DD, at 49.) Also, on October 16, 2015, Petitioner filed a 116-page pro se habeas corpus petition in the Arizona Supreme Court arguing the SB 1145/SB 1449 issues he presents to this Court. (Doc. 65-3, Ex. HH, at 2-117.) On March 11, 2016, the Arizona Supreme Court denied the petition without explanation. (Doc. 65-4, Ex. II, at 2.)
The purpose of the stay and abeyance procedure is to provide petitioners the chance to exhaust any unexhausted claims contained in their federal habeas petitions without losing the opportunity for subsequent federal review of the claims. See Mena v. Long, 813 F.3d 907, 909 (9th Cir. 2016). Petitioner attempted to present his claims on two prior occasions. First, the Arizona Court of Appeals denied Petitioner's motion to permit a new PCR petition in the trial court. Second, the Arizona Supreme Court denied his habeas corpus petition. Petitioner presents this Court with no grounds to believe the state courts would grant a subsequent motion to hear these arguments he attempted to present/presented twice before.
Petitioner's request that this Court hold "all issues are exhausted at the State level" should also be denied. The undersigned will submit a Report and Recommendation regarding exhaustion to the Honorable James A. Teilborg. Until Petitioner and Respondents have been given the opportunity to consider and respond to that Report and Recommendation, it is premature for the Court to preliminarily rule on the issue of exhaustion.
The record is sufficiently developed and the Court does not find that an evidentiary hearing is necessary for resolution of this matter. See Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 2011). Based on the above analysis, the Court finds that Petitioner's request for Clarification or a Stay (Doc. 10) should 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. The parties shall have 14 days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to timely file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed. R. Civ. P. 72.
