Carey v. Ryan et al

Filing 20

ORDER ACCEPTING REPORT AND RECOMMENDATION and DENYING AND DISMISSING with prejudice the petition for writ of habeas corpus 1 . ORDER DENYING a certificate of appealability and leave to proceed in forma pauperis on appeal. Signed by Judge Frederick J Martone on 10/4/12. (TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Brian Timothy Carey,

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Petitioner,

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vs.

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Charles L. Ryan; Thomas C. Horne,
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Respondents.
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No. CV-11-0685-PHX-FJM
ORDER

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The court has before it petitioner’s petition for writ of habeas corpus pursuant to 28

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U.S.C. § 2254 (doc. 1), respondent’s response (doc. 11), and petitioner’s reply (doc. 14). We

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also have before us the report and recommendation from the United States Magistrate Judge

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(doc. 15), recommending that we deny the petition, and petitioner’s objections (doc. 18).

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Petitioner pled guilty to one count of child molestation and two counts of attempted

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sexual conduct with a minor. He was sentenced to 17 years in prison for the child

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molestation offense, and two concurrent terms of lifetime probation for the attempted sexual

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conduct offenses.

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Petitioner asserts 6 grounds for habeas relief: (1) he received ineffective assistance of

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counsel at sentencing; (2) his due process rights were violated because the sentencing court

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improperly considered as an aggravating factor that the offenses had occurred over an

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extended period of time; (3) his due process rights were violated because the State asserted

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as an improper aggravating factor that petitioner had admitted there were multiple victims;

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(4) his due process rights were violated by the sentencing court improperly considering any

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aggravating factors where the State failed to allege aggravating factors prior to petitioner

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entering into the plea agreement; (5) his due process rights were violated because the

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sentencing court failed to properly consider mitigation factors; and (6) his due process rights

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were violated because he was sentenced “pursuant to a special sentencing provision

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inapplicable to [the attempted sexual conduct] offenses.”

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The Magistrate Judge determined that petitioner failed to properly exhaust any of

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these claims, that because state remedies were no longer available, the claims are

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procedurally defaulted, and that petitioner made no showing of a miscarriage of justice, or

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cause and actual prejudice to excuse the default. See Schlup v. Delo, 513 U.S. 298, 319, 115

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S. Ct. 851, 863 (1995).

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The Magistrate Judge first concluded that Ground 1 is procedurally defaulted because

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petitioner did not raise an issue of ineffective assistance of counsel in his petition for review

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before the Arizona Court of Appeals. Petitioner concedes that the issue was not presented

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in his petition for review, but argues that the State nevertheless “understood the claim as an

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ineffective assistance of counsel claim and addressed it that way in its argument in the state

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court of appeals.” Objections at 2. This is a mischaracterization of the record. Our review

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of the State’s response to the petition for review does not address a claim for ineffective

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assistance of counsel. See doc. 2-8. Ground 1 is procedurally defaulted.1

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The Magistrate Judge next concluded that the issues presented in Grounds 2 and 3

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were presented as state law claims only, and therefore federal claims were not fairly

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presented to the state court. Petitioner contends that his mention of the Sixth and Fourteenth

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Amendments in his petition for review is sufficient to fairly present federal claims. We

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disagree. “Exhaustion demands more than drive-by citation, detached from any articulation

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The parties agree that petitioner is unable to return to state court in order to exhaust
his claims for relief.
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of an underlying federal legal theory.” Castillo v. McFadden, 399 F.3d 993, 1003 (9th Cir.

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2005). Because petitioner failed to present the claims under federal law claims, Grounds 2

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and 3 are procedurally defaulted.

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In Ground 4, petitioner argues that the trial court violated his Fourteenth Amendment

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right to due process by considering aggravating factors despite the State’s failure to notify

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petitioner of its intention to rely on aggravating factors before he entered his guilty plea.

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Again, petitioner argues that his citation to a United States Supreme Court case is sufficient

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to fairly present a federal claim. Although petitioner arguably raised this as a federal claim

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in his petition for post-conviction relief, he did not present it as a federal claim in his petition

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for review. See doc. 2-7. We agree with the Magistrate Judge that Ground 4 is procedurally

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defaulted.

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Petitioner asserts in Ground 5 that the trial court violated his due process rights when

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it improperly discounted proffered mitigation evidence. The Magistrate Judge found that

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petitioner failed to assert this as a federal claim in his petition for post-conviction relief.

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Again petitioner argues that his claim was fairly presented because the State argued the issue

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on the basis of federal law. But the State merely quotes petitioner’s own broad, conclusory

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statement that his sentence violates the Sixth, Eighth, and Fourteenth Amendments. There

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is no discussion whatsoever regarding the constitutionality of the trial court’s treatment of

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mitigation evidence.

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Petitioner asserts in Ground 6 that his right to due process was violated when he was

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sentenced under an inapplicable sentencing provision, A.R.S. § 13-604.01. The Magistrate

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Judge concluded that because petitioner did not raise this as a federal claim before the

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Arizona Court of Appeals, the claim is not exhausted. Again, petitioner misconstrues the

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state court pleadings when he argues that the federal claim was fairly presented. We agree

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with the Magistrate Judge that Ground 6 is procedurally defaulted.

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Finally, petitioner makes no showing to establish either cause or prejudice to excuse

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the procedural defaults. Therefore, pursuant to Rule 8(b), Rules Governing § 2254 Cases,

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and after de novo review, we accept the recommended decision of the United States
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Magistrate Judge. IT IS ORDERED DENYING AND DISMISSING with prejudice the

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petition for writ of habeas corpus (doc. 1).

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Because the dismissal of the petition is justified by a plain procedural bar and jurists

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of reason would not find the procedural ruling debatable, IT IS FURTHER ORDERED

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DENYING a certificate of appealability and leave to proceed in forma pauperis on appeal

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DATED this 4th day of October, 2012.

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