REPORT AND RECOMMENDATION
CAMILLE D. BIBLES, Magistrate Judge.
TO THE HONORABLE JAMES A. TEILBORG:
Petitioner Anthony King, proceeding pro se and in forma pauperis, filed a petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (ECF No. 1), on April 18, 2019, while incarcerated at the Arizona Department of Corrections' prison in Florence, Arizona.1 King was released from prison on or about May 15, 2019, and he filed a notice of change of address on May 21, 2019. (ECF No. 9). On July 3, 2019, Respondents notified the Court that pleadings sent to King at the address noticed at ECF No. 9 had been returned as undeliverable. (ECF No. 16). Respondents docketed an answer to the petition on July 11, 2019. (ECF No. 18). King has not replied to the answer to his petition, and mail sent to King at the only address provided to the Court has been returned. (ECF Nos. 15, 20, 21).2
I. Background
On October 26, 2018, at the conclusion of a bench trial in the Casa Grande Justice Court in CM-2017-000479, King was convicted on one count of misdemeanor assault and one count of misdemeanor disorderly conduct (domestic violence), in violation of Arizona Revised Statutes §§ 13-1203(a)(1) and 13-2904(A)(1); the crimes presumably took place on or about December 7, 2017, the date the complaint was filed. (ECF No. 19-1). At the time of his conviction in the Casa Grande matter King was in the custody of the Arizona Department of Corrections pursuant to a sentence he began serving in July of 2018 imposed in a Pinal County criminal matter. Pursuant to the Casa Grande convictions, the court sentenced King to serve 20 days in jail and 12 months of unsupervised probation, and ordered him to participate in domestic violence counseling and pay a fine of $100. (ECF Nos. 19-1; 19-2; 19-3). The Casa Grande court ordered the jail sentence to commence on November 1, 2019, although it ordered the sentence of unsupervised probation to commence October 26, 2018. (ECF No. 19-2; ECF No. 19-3).3
King, through appointed counsel, filed a notice of appeal, challenging the "finding of guilt on the charges of 13-1203(A)(1) and 13-2904(A)(1) as a domestic violence offense." (ECF No. 19-4 at 2; ECF No. 19-6 at 2). Because no appellate memorandum was filed, the appeal was deemed abandoned on January 17, 2019. (ECF No. 19-7 at 2). King did not seek state post-conviction relief.
In his federal habeas petition King asserts:
1. Appellate counsel failed to provide King with a copy of the appellate brief;
2. Appellate counsel abandoned King's appeal;
3. King was not given warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966);4
4. King's civil rights were violated by his arrest and conviction.5
Respondents aver all of King's claims for relief were procedurally defaulted in the state courts.
II. Analysis
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).
[The federal courts] recognize two types of procedural bars: express and implied. An express procedural bar occurs when the petitioner has presented his claim to the state courts and the state courts have relied on a state procedural rule to deny or dismiss the claim. An implied procedural bar, on the other hand, occurs when the petitioner has failed to fairly present his claims to the highest state court and would now be barred by a state procedural rule from doing so.
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 King 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).
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 v. Ryan, 870 F.3d 1033, 1059 (9th Cir. 2017); 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. E.g., 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).
King did not raise any claims in his direct appeal, which the state court deemed "abandoned," and he did not assert any ineffective assistance of appellate counsel claims (or any other claims) in a state action for post-conviction relief. Accordingly, all of his federal habeas claims are procedurally defaulted because they were not exhausted in the state courts and Arizona's procedural rules bar King from returning to the state courts to exhaust the claims. King has not responded to the answer to his petition asserting his federal habeas claims are procedurally defaulted and, therefore, he fails to meet his burden of showing cause and prejudice with regard to the procedural default of the claims. King does not assert his factual innocence and, accordingly, no fundamental miscarriage of justice will occur absent the Court's consideration of his habeas claims.
III. Conclusion
All of King's claims for federal habeas relief were procedurally defaulted in the state courts, and he has not met his burden of establishing cause for or prejudice arising from his procedural default of his claims. King does not assert his factual innocence of the crimes of conviction and, therefore, he has not shown a fundamental miscarriage of justice will occur absent consideration of the merits of his federal habeas claims.
IT IS THEREFORE RECOMMENDED that King'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 King 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.
