Gohel v. Ryan et al

Filing 30

ORDER accepting the 24 recommendation of the magistrate judge and DENYING the 20 motion to stay and abey. Signed by Judge Frederick J Martone on 11/03/11. (ESL)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Sanjay Babulal Gohel,
Petitioner,

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vs.

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Charles L. Ryan, et al.,
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Respondents.
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No. CV 10-0001-PHX-FJM
ORDER

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The court has before it petitioner's amended petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254 (doc. 12), petitioner's memorandum in support of petition (doc.

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5), respondents' answer (doc. 15), petitioner's reply and motion to stay and abey (doc. 20),

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respondents' supplemental answer (doc. 26), and petitioner's supplemental reply (doc. 29).

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We also have the Report and Recommendation of the United States Magistrate Judge

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recommending that petitioner's motion to stay and abey be denied (doc. 24). The parties did

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not file objections.

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Under 28 U.S.C. § 636(b)(1)(C), we must "make a de novo determination of those

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portions of the [magistrate judge's] report or specified proposed findings or recommendations

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to which objection is made." De novo review is not required absent an objection or request

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for review by the defendant. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.

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2003).

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Petitioner, a state prisoner, filed a single petition for habeas corpus relief containing

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some claims that have been exhausted in state court and some that have not. Ground VII,

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included for the first time in petitioner's amended petition, contains several claims. These

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claims are based on the fact that an incomplete record was transmitted to the appellate court.

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The missing documents included the transcript of petitioner's aggravation/mitigation hearing,

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a minute entry, exhibit worksheet, and special verdict from that hearing, thirteen letters

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written to the sentencing judge on petitioner's behalf, and the cover sheet of a transcript from

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the sentencing of petitioner's co-defendant. Petitioner asserts the incomplete record resulted

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in a denial of his rights to due process and equal protection under the Fourteenth Amendment

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to the United States Constitution. He claims his counsel's failure to notice the error was also

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ineffective assistance. In addition, petitioner claims the omitted records would have helped

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some of his other arguments. Petitioner requests a stay so he can exhaust these claims in

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state court.

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Petitioner admits his claims based on the incomplete record are not exhausted. He

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argues, though, that state remedies are available because his claims are based on newly

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discovered evidence or, alternatively, could be presented in a motion to recall an appellate

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mandate. Respondents contend that petitioner has procedurally defaulted and the magistrate

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judge agreed.

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A mixed petition should be stayed, not dismissed, "if the petitioner had good cause

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for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no

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indication that the petitioner engaged in intentionally dilatory litigation tactics." Rhines v.

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Weber, 544 U.S. 269, 278, 125 S. Ct. 1528, 1535 (2005). The magistrate judge found that

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Rhines does not apply since petitioner failed to show his claims are not procedurally

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defaulted. Even if he could show good cause for his failure to exhaust, though, his claims

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are plainly meritless and so his petition should not be stayed.

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Rule 32.1(e), Ariz. R. Crim. P., permits a petition for post-conviction relief based

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upon "[n]ewly discovered material facts [that] probably would have changed the verdict or

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sentence." To be considered newly discovered, the evidence must have existed at the time

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of the trial but discovered after the trial. The omission of records here did not occur until
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after the trial and would not have changed the verdict or sentence. Therefore, the omitted

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records are not newly discovered evidence under Rule 32.1(e) and the claims are barred by

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the preclusion and timeliness bars of Rules 32.2 and 32.4, Ariz. R. Crim. P. "[I]f the

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petitioner failed to exhaust state remedies and the court to which the petitioner would be

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required to present his claims in order to meet the exhaustion requirement would now find

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the claims procedurally barred. . . . there is a procedural default for purposes of federal

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habeas." Coleman v. Thompson, 501 U.S. 722, 735 n.1, 111 S. Ct. 2546, 2557 n.1 (1991).

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Even if petitioner's claims were not procedurally defaulted, he would not be entitled

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to a stay because his claims are meritless. He failed to show any "specific prejudice"

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resulting from the omission of records on appeal. United States v. Wilson, 16 F.3d 1027,

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1031 (9th Cir. 1994) (when court reporter failed to record all proceedings verbatim,

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defendant had to demonstrate specific prejudice resulted to obtain reversal); Bransford v.

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Brown, 806 F.2d 83, 86 (6th Cir. 1986) (petitioner had to show prejudice resulting from

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missing transcripts to demonstrate denial of a fair appeal). Petitioner did not show that

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prejudice resulted because he did not show that a viable claim was lost due to the missing

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transcript. Once he received the omitted documents, he still failed to raise any viable claims.

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He suggests that the records help his other arguments, but makes no reference to the records

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to support those claims. He says the judge's discretion in sentencing could now be fully

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evaluated, but he does not point to any portions of the records which support an assertion of

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an abuse of discretion.

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Petitioner additionally claims that the failure to notice the omissions was ineffective

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assistance of counsel in violation of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052

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(1984). Under Strickland, though, a petitioner must establish prejudice by showing "that

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there is a reasonable probability that, but for counsel's unprofessional errors, the result of the

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proceeding would have been different." Id. at 694, 104 S. Ct. at 2068. Petitioner has not

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shown how the result of his appeal would have been different if his counsel had noticed the

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missing records.

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Petitioner's arguments in Ground VII do not have merit. Consequently, even if state
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remedies were available to fairly present and properly exhaust his claims, he is not entitled

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to a stay.

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IT IS THEREFORE ORDERED accepting the recommendation of the magistrate
judge (doc. 24) and DENYING the motion to stay and abey (doc. 20).
DATED this 3rd day of November, 2011.

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