Najera v. Ryan et al
Filing
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ORDER ACCEPTING REPORT AND RECOMMENDATIONS 16 : IT IS ORDERED DENYING petitioner's petition for writ of habeas corpus (doc. 1). Because petitioner has not made a substantial showing of the denial of a constitutional right, IT IS FURTHER ORDERED DENYING a Certificate of Appealability and leave to proceed in forma pauperis on appeal. (See document for further details). Signed by Judge Frederick J Martone on 7/1/11. (LAD)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Benjamin Delgado Najera, Jr.,
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 10-1536-PHX-FJM
ORDER
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The court has before it petitioner's petition for writ of habeas corpus for a person in
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state custody, pursuant to 28 U.S.C. § 2254 (doc. 1), respondents' answer (doc. 12) and
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petitioner's reply (doc. 15). We also have before us the Report and Recommendation of the
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United States Magistrate Judge recommending that the petition for writ of habeas corpus be
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denied (doc. 16) and petitioner's objections to the Report and Recommendation (doc. 17).
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After de novo consideration, we accept the recommended decision of the Magistrate Judge,
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pursuant to Rule 8(b), Rules Governing § 2254 Cases, and deny the petition.
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Petitioner raises four grounds for relief: (1) denial of the right to counsel because
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petitioner did not knowingly, voluntarily, and intelligently waive his right to counsel; (2)
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ineffective assistance of counsel; (3) denial of the right to a fair and impartial judge; and (4)
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prosecutorial misconduct.
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The Magistrate Judge found that grounds two through four were procedurally
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defaulted because the state court found that each claim was "precluded" under Rule 32.2
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Ariz.R.Crim.P. because it could have been, but was not, raised on direct appeal. A
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procedural bar may be applied to unexhausted claims where state procedural rules make
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return to state court futile. See Coleman v. Thompson, 501 U.S. 722, 735 n.1, 111 S.Ct.
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2546, 2557 (1991). In Arizona, a claim not previously presented in state court by either
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direct appeal or collateral review is generally barred from federal review, unless a narrow
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exception applies. See Rules 32.1(d)-(h) & 32.2(a), Ariz.R.Crim.P. The state court's reliance
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on Arizona's procedural rule barring post-conviction relief for claims that could have been
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raised on direct appeal but were not constitutes an independent and adequate ground barring
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federal review. See Stewart v. Smith, 536 U.S. 856, 860, 122 S.Ct. 2578, 2581-82 (2002)
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(holding that determinations made under Arizona's procedural default rule are "independent"
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of federal law); Smith v. Stewart, 241 F.3d 1191, 1195 n.2 (9th Cir. 2001), reversed on other
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grounds, Stewart, 536 U.S. 856 (stating that Arizona's procedural default rule is "adequate").
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Furthermore, we agree with the Magistrate Judge's conclusion that petitioner has not
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meet his burden of demonstrating that the "fundamental miscarriage of justice" exception
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applies because he makes no showing of "actual innocence." See Murray v. Carrier, 477
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U.S. 478, 495-96, 106 S.Ct. 2639, 2649 (1989); Cook v. Schrio, 538 F.3d 1000, 1028 (9th
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Cir. 2008). Petitioner simply advances speculative and conclusory assertions that disclosure
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of the victim's medical records would have demonstrated that her injuries were not as severe
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as she testified. Petitioner does not provide any "new, reliable evidence" that "makes it more
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likely than not that no reasonable juror would have found petitioner guilty." Schlup v. Delo,
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513 U.S. 298, 324, 327, 115 S.Ct. 851, 865-67 (1995); see also Majoy v. Roe, 296 F.3d 779,
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776 (9th Cir. 2002).
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In his objections to the Report and Recommendation, petitioner simply rehashes
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arguments that the victim's medical records should have been disclosed. We will not revisit
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those contentions previously raised. Petitioner also asks us to find that Rule 32.2(a),
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Ariz.R.Crim.P. does not apply to grounds two through four. Federal habeas relief is not
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available to "redress alleged procedural errors in state post-conviction proceedings." Ortiz
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v. Stewart, 149 F.3d 923, 939 (9th Cir. 1998); see also Poland v. Stewart, 169 F.3d 573, 584
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(9th Cir. 1998) (holding that federal habeas courts lack jurisdiction to review state court
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applications of state procedural rules, including specifically Rule 32, Ariz.R.Crim.P.). We
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do not decide whether Rule 32.2(a) was properly applied to the claims. Moreover, we reject
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petitioner's argument that the Magistrate Judge incorrectly found that petitioner had not
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raised an ineffective assistance of counsel argument, based on alleged Brady violations, in
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his petition for post conviction relief. The record supports this finding. See doc. 12, ex. O
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at 5-8. While petitioner may have raised such a claim in his petition for rehearing, that
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petition was denied as moot since petitioner had divested the court of jurisdiction by filing
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a petition for review to the Arizona Court of Appeals. See doc. 12, ex. X. After de novo
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review, we agree with the Magistrate Judge's conclusion that grounds two through four are
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procedurally defaulted. We deny the petition on these grounds.
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In ground one, petitioner asserts that he was denied the right to counsel because he did
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not knowingly, voluntarily, and intelligently waive his right to counsel. The Magistrate
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Judge found that the claim lacked merit. A federal court "shall not" grant habeas relief to
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"any claim that was adjudicated on the merits in State court proceedings" unless the state
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court decision was (1) contrary to, or an unreasonable application of, clearly established
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federal law as determined by the United States Supreme Court; or (2) based on an
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unreasonable determination of the facts in light of the evidence presented in the state court
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proceeding. 28 U.S.C. § 2254(d). We "defer to the state court's finding that a waiver of the
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right to counsel was knowing, intelligent, and voluntary unless it is contrary to or an
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unreasonable application of Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525 (1975)."
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Cook, 538 F.3d at 1015.
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Petitioner's waiver claim lacks merit. At the trial court level, petitioner made an
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unequivocal request to waive his right to counsel, the trial court sufficiently apprised
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petitioner of the dangers and disadvantages of self-representation, and petitioner displayed
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a working knowledge of the criminal justice system. Moreover, on direct appeal, the Arizona
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Court of Appeals did not act contrary to clearly established law but rather correctly applied
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the standards set forth in Faretta, 422 U.S. 806, 95 S.Ct. 2525 and Iowa v. Tovar, 541 U.S.
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77, 124 S.Ct. 1379 (2004).
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Petitioner's objections simply argue that we should review in camera the victim's
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medical records to determine if they support his claim. Petitioner fails to persuade us that
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the state court was unreasonable in its application of the facts or acted contrary to state law.
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Therefore, we accept the Report and Recommendation of the United States Magistrate
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Judge (doc. 16). IT IS ORDERED DENYING petitioner’s petition for writ of habeas
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corpus (doc. 1). Because petitioner has not made a substantial showing of the denial of a
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constitutional right, IT IS FURTHER ORDERED DENYING a Certificate of
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Appealability and leave to proceed in forma pauperis on appeal.
DATED this 1st day of July, 2011.
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