D. THOMAS FERRARO, Magistrate Judge.
Petitioner Joshua Matthew Warner (Petitioner), presently incarcerated at the Arizona State Prison Complex — Kingman/Huachuca Unit in Kingman, Arizona, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Before this Court are the Petition (Doc. 1) and Respondent's Limited Answer to Petition for Writ of Habeas Corpus (Doc.8). Petitioner did not file a reply. See Dkt. This matter was referred to Magistrate Judge Ferraro for Report and Recommendation. As more fully set forth below, the Magistrate Judge
On April 7, 2016, Petitioner pled guilty to one count of sexual conduct with a minor and three counts of attempted sexual conduct with a minor. (Doc. 9 at p. 3.) Petitioner agreed that he would receive a sentence of 22 years "flat time" for the sexual conduct with a minor conviction and a deferred sentence of lifetime probation for the three other convictions. Id. On May 12, 2016, Petitioner was sentenced accordingly. Id. at p. 8....
In Arizona, a defendant who pleads guilty waives the right to appeal his conviction directly and may seek review only by collaterally attacking the conviction(s) through post-conviction relief proceedings under Rule 32 of the Arizona Rules of Criminal Procedure. See Ariz. R. Crim. P. 17.2(e); Ariz. Rev. Stat. § 13-4033(B). On August 9, 2016, Petitioner filed a notice of post-conviction relief. (Doc. 9 at pp. 13-15.) Petitioner was appointed counsel by the state trial court. Id. at p. 17. Petitioner's appointed counsel was unable to find a "tenable issue to submit" and requested that Petitioner be permitted to file a pro se petition for post-conviction relief. Id. at pp. 20-21.
On June 7, 2017, Petitioner filed his petition for post-conviction relief in which he claimed his trial counsel rendered ineffective assistance because trial counsel: (1) did not act in his best interest; (2) failed to submit a mitigation packet or request a mitigation specialist; (3) encouraged Petitioner to waive his risk assessment and psychosexual examination; and (4) waived Petitioner's presentence interview. Id. at pp. 25-30. The state trial court denied Petitioner's post-conviction relief petition on September 25, 2017. Id. at pp. 32-34. Petitioner did not seek review in the Arizona Court of Appeals. (Doc. 1 at p. 5.)
On May 16, 2018, Petitioner signed and deposited the instant Petition for mailing in the prison mailbox. Id. at p. 1. Petitioner asserts the following grounds for relief:
(Doc. 1 at pp. 6-9.)
The time limitations imposed by Anti-Terrorism and Effective Death Penalty Act (AEDPA) applies to the Petition. See, e.g., Furman v. Wood, 190 F.3d 1002, 1004 (9
Petitioner filed his state court petition for post-conviction relief on August 9, 2016. (Doc. 9 at p. 13.) His post-conviction relief petition was denied on September 25, 2017. Id. p. 32-34. Petitioner did not seek review in the Arizona Court of Appeals and as a result the time limitations set forth in the AEDPA began running on October 30, 2017 (35 days after the state court's September 25, 2017 denial). See Ariz. R. Crim. P. 32.9(c) (petition for review due 30 days after a denial of a petition for post-conviction relief); Ariz. R. Crim. P. 1.3(a) (Arizona's 5-day mail-box rule).
The Petition was filed on May 16, 2018 and is timely. (Doc. 1 at p. 11.)
Only federal questions are reviewable under 28 U.S.C. § 2254. See 28 U.S.C. § 2254(a) (permitting federal court to entertain a habeas petition application only on the ground that the prisoner is "[i]n custody in violation of the Constitution or law or treaties of the United States"); Wilson v. Corcoran, 562 U.S. 1, 4 (2010) (federal habeas relief is not available to retry a state issue that does not rise to the level of a federal constitutional violation). "In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 68 (1991).
Petitioner's claim in Ground Three is that the state violated the "universal declaration of human rights article 12" when a confrontation call was arranged that resulted in Petitioner's confession to unlawful sexual conduct. (Doc. 1 at p. 8.) The United Nation's Universal Declaration of Human Rights does not impose any obligations on the United States as a matter of international law. See Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 719-20 (9
Petitioner's claim in Ground Three is not cognizable on habeas review.
Exhaustion requires habeas petitioners to "fairly present" their federal claims to the highest state court available. Weaver v. Thompson, 197 F.3d 359, 365 (9th Cir. 1999). In Arizona, a petitioner exhausts a federal claim by presenting it to the Arizona Court of Appeals. See Castillo v. McFadden, 399 F.3d 993, 998 n.3 (9th Cir. 2005) ("[C]laims of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.") (quoting Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999)). To fairly present a federal claim in state court proceedings, a petitioner must describe both the operative facts and the federal law basis for the claim. Baldwin v. Reese, 541 U.S. 27, 32 (2004); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). A prisoner describes a federal law basis for the claim by citing "the federal source of law on which he relies or a case deciding such a claim on federal grounds, or by simply labeling the claim `federal.'" Baldwin, 541 U.S. at 32.
Proper exhaustion also requires a petitioner to have "fairly presented" to the state courts the exact federal claim he raises on habeas by describing the facts and federal legal theory upon which the claim is based. See, e.g., Picard v. Connor, 404 U.S. 270, 276 (1971) ("[W]e have required a state prisoner to present the state courts with the same claim he urges upon the federal courts."). A claim is only "fairly presented" to the state courts when a petitioner has "alert[ed] the state courts to the fact that [he] was asserting a claim under the United States Constitution." Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000) (quotations omitted); see Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996) ("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.").
A "`general appeal to a constitutional guarantee,'" such as due process, is insufficient to achieve fair presentation. Shumway, 223 F.3d at 987 (quoting Gray v. Netherland, 518 U.S. 152, 163 (1996)); see Castillo, 399 F.3d at 1003 ("Exhaustion demands more than drive-by citation, detached from any articulation of an underlying federal legal theory."). Similarly, a federal claim is not exhausted merely because its factual basis was presented to the state courts on state law grounds—a "mere similarity between a claim of state and federal error is insufficient to establish exhaustion." Shumway, 223 F.3d at 987-88 (quotations omitted); see Picard, 404 U.S. at 275-77. And, even when a claim's federal basis is "self-evident," or the claim would have been decided "on the same considerations under state or federal law," a petitioner must still present the federal claim to the state courts explicitly, "either by citing federal law or the decision of the federal courts." Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000) (quotations omitted), amended by 247 F.3d 904 (9
First, a claim is expressly procedurally defaulted when a petitioner attempted to raise it in state court, but the state court expressly applied a procedural bar to avoid considering its merits. See Ylst v. Nunnemaker, 501 U.S. 797, 802-05, (1991); see also Insyxiengmay v. Morgan, 403 F.3d 657, 665 (9th Cir. 2005) (procedural default "applies to bar federal habeas review when the state court has declined to address the petitioner's federal claims because he failed to meet state procedural requirements"). In determining whether the state courts have imposed a procedural bar, the district court reviews the last reasoned decision of the state courts, Bailey v. Rae, 339 F.3d 1107, 1112-13 (9th Cir. 2003), and a subsequent decision denying review without comment does not vitiate the procedural default. See Ylst, 501 U.S. at 802 (when last reasoned state court decision imposes a procedural default, court presumes on habeas that subsequent decision rejecting claim did not consider merits).
Second, a claim is deemed technically exhausted, but procedurally defaulted, when a petitioner has not raised it in state court, but a return to state court to exhaust it would be futile in light of state procedural rules. See Teague v. Lane, 489 U.S. 288, 297-99 (1989); see also Coleman, 501 U.S. at 735 n.1 ("[I]f the petitioner failed to exhaust state remedies 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 . . . there is a procedural default for purposes of federal habeas.").
Arizona's procedural default rules are strictly and regularly applied, and typically render any attempt to return to state court and present additional claims futile. See Rules 32.2 and 32.4(a), Ariz. R. Crim. P. (successive post-conviction relief proceeding allowed only under limited circumstances). Rule 32.2(a)(3) presents a procedural bar for a claim that could have been raised in the prior proceedings. See Stewart v. Smith, 536 U.S. 856, 860 (2002) (state court determinations under Rule 32.2(a) are independent of federal law); Ortiz v. Stewart, 149 F.3d 923, 931-32 (9th Cir. 1998) (rejecting argument that Arizona courts have not "strictly or regularly followed" Rule 32.2(a)), overruled on other grounds; Carriger v. Lewis, 971 F.2d 329, 333 (9th Cir. 1992) (en banc) (rejecting assertion that Arizona courts' application of procedural default rules had been "unpredictable and irregular"); State v. Mata, 916 P.2d 1035, 1050 (1996) (waiver and preclusion rules strictly applied in post-conviction proceedings). Rule 32.4(a) presents a time bar. See Moreno v. Gonzalez, 116 F.3d 409, 410 (9th Cir. 1997) (recognizing timeliness under Rule 32.4(a) as a basis for dismissal of post-conviction relief petition, distinct from preclusion under Rule 32.2(a)). Thus, claims not properly presented to the state courts are procedurally defaulted. Murray, 477 U.S. at 485.
Petitioner failed to raise any of the grounds for relief contained in the Petition in his state court petition for post-conviction relief in both the state trial court and court of appeals. All of the grounds for relief raised in the Petition (to the extent cognizable on federal habeas review) are unexhausted. Castillo, 399 F.3d at 998; Swoopes, 196 F.3d at 1010. The grounds for relief raised in the Petition are procedurally defaulted because it would be futile for Petitioner to return to state court in an attempt to exhaust them. The time limit to seek review in the court of appeals has passed, see Ariz. R. Crim. P. 32.9(c), and Petitioner is barred from seeking any further post-conviction relief in state court. See Ariz. R. Crim. P. 32.2, 32.4(a), 32.9(c).
The district court is precluded from reviewing the merits of a procedurally defaulted claim unless a habeas petitioner demonstrates "cause and prejudice" or that a fundamental miscarriage of justice has occurred. Edwards v. Carpenter, 529 U.S. 446, 451 (2000). "Cause" requires a showing that an external, objective factor impeded a prisoner's compliance with state procedural rules. Murray, 477 U.S. at 488. "Prejudice" requires a showing that the alleged constitutional violation worked to the prisoner's "actual and substantial disadvantage, injecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982) (Emphasis in original.) And, to prove a fundamental "miscarriage of justice," a prisoner must show by clear and convincing evidence that no reasonable jury could have found him guilty of the offense. See Schlup v. Delo, 513 U.S. 298, 327 (1995).
In his Petition, Petitioner states:
(Doc. 1 at pp. 5-9.) An apparent futility of presenting habeas claims to state courts does not constitute cause to overcome a procedural default. Roberts v. Arave, 847 F.2d 528, 530 (9
The grounds for relief alleged in the Petition are procedurally defaulted without excuse and are precluded from habeas review.
Ground Three is not cognizable on federal habeas review. All of the grounds for relief raised in the Petition are procedurally defaulted without excuse. It is
Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the district court. If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should use the following case number:
