Pineda-Salgado v. Blair et al

Filing 22

ORDER overruling the objections to the Magistrate Judge's Report and Recommendation. ORDER adopting the Report and Recommendation as the order of this Court. ORDER that the Amended Petition for Writ of Habeas Corpus is dismissed with prejudice. ORDER that a certificate of appealability be denied because jurists of reason would not find it debatable whether this Court was correct in its procedural ruling. Signed by Judge Susan R Bolton on 6/30/11. (TLJ)

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NOT FOR PUBLICATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Eduardo Pineda-Salgado,
Petitioner,

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vs.

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Unknown Blair, et al.,
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Respondents,
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No. CV10-0775-PHX-SRB
ORDER

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Petitioner Eduardo Pineda-Salgado filed an Amended Petition for Writ of Habeas

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Corpus raising two grounds for relief. Petitioner asserts that his Sixth Amendment and Due

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Process Rights were violated when the trial court failed to instruct the jury on the lesser

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included offense of theft. Petitioner also argues that his Sixth Amendment Rights were

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violated because the trial court sentenced him to an aggravated term of imprisonment. The

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Respondents responded in opposition to the Petition asserting that Petitioner's claims were

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procedurally defaulted and that they were without merit. Petitioner filed a reply in support

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of his Petition.

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On May 18, 2011, the Magistrate Judge issued his Report and Recommendation

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recommending to this Court that the Petition be dismissed with prejudice because Petitioner

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failed to exhaust his state remedies, failed to show any excuse for his procedural defaults, and

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did not assert an actual innocence claim.

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Petitioner filed timely written objections to the Report and Recommendation to which

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Respondents filed a written response. Petitioner objects to the Magistrate Judge's conclusion

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that he failed to properly exhaust his claims by failing to raise them as constitutional claims

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before the state court. He argues that because he quoted from a federal authority and cited

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to the state court decision in State v. Wall, 212 Ariz. 1, 126 P.3d 148 (2006), these citations

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were sufficient to the put the Arizona courts on notice that he was raising a federal claim.

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He also asserts that because he mentioned the protection of his due process rights in his

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Petition for Review to the Arizona Supreme Court on his direct appeal that he did include an

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assertion that the failure to instruct on the lesser included offense was a federal constitutional

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claim. Finally, Petitioner argues that he did not knowingly and intelligently waive any

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claims in his Petition for Post-Conviction Relief proceedings in the state court because his

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lawyer didn't inform him and his lack of knowledge amounted to ineffective assistance by

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his counsel. Finally, the objection contains the statement, "A constitutional violation has

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resulted in the conviction of one who is actual innocent."

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The response to the objections notes, as did the Magistrate Judge, that the presentation

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of the claim for failure to instruct on the lesser included offense of theft was presented to the

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state court as a state claim. The mere references to a federal case and to a state case that cites

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that federal case were insufficient to alert the state appellate court that Petitioner was raising

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a federal due process claim. Respondents also note, as did the Magistrate Judge, that the

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mere reference to "due process" in the Petition for Review to the Arizona Supreme Court

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cannot constitute a proper exhaustion of a federal claim based on its failure to say whether

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the reference was to the federal or state constitution and because proper exhaustion requires

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it to be raised at every level of review and not for the first time on Petition for Review to the

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Arizona Supreme Court. The response also notes that with respect to Petitioner's claim that

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ineffective assistance of counsel was the cause of his procedural default, that claim must be

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fairly presented to the state court in order to satisfy the requirements for exhaustion.

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Edwards v. Carpenter, 529 U.S. 446, 453 (2000). Petitioner made no assertion of ineffective

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assistance of counsel in the Arizona courts and cannot raise it for the first time here. Finally,
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the response notes that a claim of actual innocence without more does not meet the

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Petitioner's burden of establishing actual innocence to excuse procedural default.

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After a de novo review of the record in this case, the Magistrate Judge's Report and

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Recommendations, the objections and the response to the objections, the Court finds itself

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in agreement with the Report and Recommendation of the Magistrate Judge in this case. The

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Court finds that Petitioner has procedurally defaulted both his claim that his federal

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constitutional rights were violated by the trial court's failure to give a jury instruction on a

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lesser included offense and that his federal constitutional rights under Apprendi v. New

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Jersey, 530 U.S. 466 (2000) were violated by his sentence. Neither claim was fairly

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presented to the state court as a federal claim. With respect to the sentencing claim, Petitioner

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failed to seek review of the trial court's denial of his Petition for Post-Conviction Relief with

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the Arizona Court of Appeals. Finally, no showing of cause and prejudice has been made

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or is even alleged to have been made by Petitioner. Petitioner's bare assertion that he is

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actually innocent is insufficient to avoid the procedural default. Because Plaintiff can no

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longer return to state court to attempt to exhaust, the Petition must be dismissed with

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prejudice.

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IT IS ORDERED overruling the objections to the Magistrate Judge's Report and
Recommendation.

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IT IS FURTHER ORDERED adopting the Report and Recommendation as the order
of this Court.

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IT IS FURTHER ORDERED that the Amended Petition for Writ of Habeas Corpus

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is dismissed with prejudice.

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IT IS FURTHER ORDERED that a certificate of appealability be denied because

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jurists of reason would not find it debatable whether this Court was correct in its procedural

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ruling.

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DATED this 30th day of June, 2011.

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