REPORT AND RECOMMENDATION

CHARLES R. PYLE, Magistrate Judge.

Angel Daniel Gonzalez filed an Amended Petition for Writ of Habeas Corpus ("Amended Petition") in this Court. Respondents argue that Gonzalez's claims are either unexhausted, subject to a procedural bar, or without merit. As described below, the Court agrees with Respondents and recommends that the Amended Petition be denied and dismissed with prejudice.

I. BACKGROUND

In August 2008, the Mohave Area General Narcotics Enforcement Team (MAGNET) executed a search warrant at an apartment. Gonzalez was in the apartment at that time and the officers found a useable amount of methamphetamine on him. (Doc. 9-2 at 14-15, ¶¶ 2-5)

In August 2009, Gonzalez was tried by a jury in Mohave County Superior Court. During voir dire, Gonzalez asked the Court to remove Juror R and Juror M for cause. Juror R stated that she was an administrative assistant for MAGNET, knew the officers who would testify at trial, interacted with the prosecutor on a daily basis, trusted the prosecutor, and would occasionally speak to him about cases. In response to questioning, Juror R stated that she could be fair and impartial. (Doc. 9-2 at 14-15, 17 ¶¶ 4-5, 7) Juror M stated that he was the brother of a MAGNET detective who was not involved in this case, had a lot of close friends in law enforcement, but stated that he could be fair and impartial. (Doc. 9-2 at 15-16, 17 ¶¶ 6, 8)

The Court denied Gonzalez's request to remove Jurors R and M for cause and so Gonzalez used two of his peremptory challenges to remove them. Gonzalez used his four remaining peremptory challenges to remove four other venirepersons and told the Court that he would have removed Jurors K and O if the Court had removed Jurors R and M for cause. (Doc. 9-2 at 16-17, ¶¶ 9-11) Juror K's nephews were law enforcement officers and "[s]he unequivocally said that her relationship with them would not affect her ability to be fair and impartial." (Doc. 9-02 at 26, ¶ 32) Juror O was a property crime victim, had a grandson with legal problems, and stated that this would "`not at all' affect her ability to remain impartial." (Doc. 9-2 at 26-27, ¶ 33)

The jury found Gonzalez guilty of two counts of possession of drug paraphernalia. (Doc. 9-1 at 82-83) Gonzalez was sentenced in January 2011 to mitigated, concurrent sentences totaling eight years. (Doc. 9-1 at 102-03)

In February 2011, Gonzalez, through counsel, moved for a new trial because of the Superior Court's refusal to remove Jurors R and M for cause. (Doc. 9-1 at 107-123) At the conclusion of briefing and following oral argument, the Court denied the motion. (Doc. 9-1 at 145-56)

Gonzalez appealed to the Arizona Court of Appeals and argued that the Court's refusal to remove Jurors R and M for cause constituted prejudicial error under the U.S. and Arizona Constitutions. (Doc. 9-6 at 17-24; Doc. 9-7 at 14-17) The Court concluded that any error was harmless because he was tried by a fair and impartial jury and so the Court affirmed his conviction and sentence. (Doc. 9-2 at 13-28) His motion for reconsideration was denied in April 2012 and the mandate issued in May 2012. (Doc. 9-2 at 10, 12)

In May 2012, Gonzalez filed a Notice of Post-Conviction Relief. (Doc. 9-2 at 7-10) His appointed counsel found no colorable claims for relief and Gonzalez filed his pro se Petition along with supplemental briefing. (Doc. 9-2 at 31-57) In these papers, Gonzalez argued he received ineffective assistance of trial counsel. After the State responded, the Court summarily dismissed his Notice of Post-Conviction Relief in April 2013. (Doc. 9-2 at 66-83) Specifically, the Court concluded that all of his claims were "either precluded or present[ed] no material issues of fact or law which would entitle [Gonzalez] to relief." (Doc. 9-2 at 83)

In October 2013, Gonzalez filed a supplemental brief for his post-conviction proceedings which the Superior Court declined to consider. (Doc. 9-2 at 85-89) In December 2013, Gonzalez moved for a rehearing under Arizona Rule of Criminal Procedure 32.9. (Doc. 9-2 at 90-92) In January 2014, the Court denied his motion. (Doc. 9-2 at 93)

In April 2014, Gonzalez petitioned the Arizona Court of Appeals for review. (Doc. 9-7 at 43-52) In May 2016, the Court of Appeals denied review because he had failed to comply with Arizona Rule of Criminal Procedure 32.9(c) by "merely summariz[ing] his claim without providing any citation to legal authority or the record. Nor d[id] he make any argument relevant to our consideration of the trial court's order denying relief." (Doc. 9-7 at 57-59, ¶ 4) The mandate issued in July 2016. (Doc. 9-7 at 61)

In February 2017, Gonzalez initiated habeas proceedings in this Court. (Doc. 1) After his petition was dismissed, Gonzalez timely filed his Amended Petition which raises four claims: three claims for ineffective assistance of counsel (Grounds Two through Four) and one Constitutional claim related to jury selection (Ground One). (Doc. 4 at 6-9) Respondents argue that this Court cannot review any of his claims. (Doc. 14) In reply, Gonzalez argues that he should be held to a more lenient standard because he is a prisoner proceeding pro per. (Doc. 12 at 2)

II. ANALYSIS

A. Jury selection claim

A state prisoner must properly exhaust all state court remedies before this Court can grant an application for a writ of habeas corpus. 28 U.S.C. § 2254(b)(1), (c); Duncan v. Henry, 513 U.S. 364, 365 (1995); Coleman v. Thompson, 501 U.S. 722, 731 (1991). Arizona prisoners properly exhaust state remedies by fairly presenting claims to the Arizona Court of Appeals in a procedurally appropriate manner. O'Sullivan v. Boerckel, 526 U.S. 838, 843-45 (1999); Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). To fairly present a claim, a petitioner must support it with a statement of the operative facts and the specific federal legal theory. Baldwin v. Reese, 541 U.S. 27, 32-33 (2004); Gray v. Netherland, 518 U.S. 152, 162-63 (1996); Duncan, 513 U.S. at 365-66. General appeals to broad constitutional principles, "such as due process, equal protection, and the right to a fair trial," do not establish exhaustion. Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999).

In his opening brief on direct appeal, Gonzalez summarized his appellate argument as follows: "The Court abuse[d] its discretion in denying [Gonzalez's] motion to strike two jurors for cause." (Doc. 9-6 at 17) The first sentence of the text references the Sixth and Fourteenth Amendments and arguments about his rights under the U.S. Constitution appear throughout the opening brief and again in reply. (Doc. 9-6 at 22-25; Doc. 9-7 at 17-18) In his Amended Petition, Gonzalez summarizes his first argument as follows: his rights under the Sixth and Fourteenth Amendments were violated because "the Court abuse[d] its discretion in refusing to strike two jurors for cause which lead to statements from both prospectives [sic] that contaminated the selected jury." (Doc. 4 at 6) Without explanation, Respondents claim that the Court cannot substantively review this claim because Gonzalez did not fairly present this argument to the Arizona Court of Appeals on direct review. (Doc. 14 at 38) The Court disagrees and concludes that, broadly interpreted, Gonzalez has fairly presented his jury selection claim.

It is clear, however, that the Arizona Court of Appeals did not address the merits of his federal claims. (Doc. 9-2 at 13-28) Accordingly, the Court will presume that the state court adjudicated this federal claim on the merits. Harrington v. Richter, 562 U.S. 86, 99 (2011) ("[w]hen a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary"). Thus, the Court will review this claim.

On habeas review, this Court can only grant relief if the petitioner demonstrates prejudice because the adjudication of a claim either "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C § 2254(d). This is a "`highly deferential standard for evaluating state-court rulings' which demands that state-court decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n. 7 (1997)).

Here, the Arizona Court of Appeals conducted a thorough and reasoned analysis of Gonzalez's claim. The Court of Appeals found that the Superior Court abused its discretion in refusing to remove Juror R for cause but could not reach the same conclusion for Juror M. (Doc. 9-2 at 21-22, 25 ¶¶ 23, 30) The Court of Appeals then analyzed the voir dire of Jurors K and O and concluded that "both of these jurors sufficiently demonstrated that they were able to be fair and impartial." (Doc. 9-2 at 26, ¶ 31) The Court concluded that Gonzalez "was not actually prejudiced as the empaneled jurors were not biased or incompetent." (Doc. 9-2 at 27, ¶ 34)

Applying the appropriately deferential standard of review, this Court cannot say that the Court of Appeal's decision was contrary to, or involved an unreasonable application of, clearly established Federal law. This Court also cannot say that the Court of Appeals' decision was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C § 2254(d). Thus, Gonzalez is not entitled to habeas relief for this claim.

B. Ineffective Assistance of Counsel Claims

A habeas claim is subject to an express procedural bar if the state court has denied or dismissed a claim based on a procedural bar "that is both `independent' of the merits of the federal claim and an `adequate' basis for the court's decision." Harris v. Reed, 489 U.S. 255, 260 (1989). A petitioner who fails to comply with the requirements of Arizona Rule of Criminal Procedure 32.9(c) has "failed to fairly present these claims." Wood v. Ryan, 693 F.3d 1104, 1117 (9th Cir. 2012). See also Johnson v. Mississippi, 486 U.S. 578, 587 (1988) ("adequate" grounds exist when a state strictly or regularly follows its procedural rule); Y1st v. Nunnemaker, 501 U.S. 797, 801 (1991); Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). If a claim is subject to an express procedural bar, this Court cannot review them.

Here, the Court of Appeals denied review for all of Gonzalez's ineffective assistance of counsel claims for failure to comply with Arizona Rule of Criminal Procedure 32.9. (Doc. 9-7 at 57-59) Thus, these claims were subjected to an express procedural bar by the Arizona Court of Appeals and so this Court cannot review them unless Gonzalez can demonstrate either cause for the default and actual prejudice to excuse the default, or a miscarriage of justice. 28 U.S.C. § 2254(c)(2)(B); Schlup v. Delo, 513 U.S. 298, 321 (1995); Coleman, 501 U.S. at 750; Murray v. Carrier, 477 U.S. 478, 495-96 (1986); United States v. Frady, 456 U.S. 152, 167-68 (1982).

Gonzalez makes no further arguments to demonstrate either cause for the default and actual prejudice to excuse the default, or a miscarriage of justice. Accordingly, the Court concludes that it cannot review these claims.

III. CONCLUSION

The undersigned finds that the ineffective assistance of counsel claims asserted by Gonzalez in Grounds Two, Three and Four of the Petition were subject to an express procedural bar without excuse. The undersigned further finds the Arizona Court of Appeals' decision as to the jury selection issue Petitioner raised in Ground One: (1) was neither contrary to, nor involved an unreasonable application of, clearly established Federal law; and (2) was not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

IT IS THEREFORE RECOMMENDED that Angel Daniel Gonzalez's Amended Petition for Writ of Habeas Corpus (Doc. 4) be denied and dismissed with prejudice.

IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be denied because dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the ruling debatable.

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 fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See, 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure timely to 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 timely to 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 or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule 72, Federal Rules of Civil Procedure.