Rucks v. Ryan et al

Filing 33

*ORDER Magistrate Judge Michelle H. Burns R&R (Doc. 17 ) is accepted. Petitioner's petition for writ of habeas corpus (Doc. 1 ) is denied. A certificate of appealability and leave to proceed in forma pauperis on appeal are denied because Petit ioner has not made a substantial showing of the denial of a constitutional right as required by 28 U.S.C. § 2253(c)(2). The Clerk of Court is directed to terminate this action. 9CCA #13-15652. Signed by Judge David G Campbell on 5/17/2013. (KMG) *Modified to include 9CCA case number on 5/20/2013 (KMG).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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No. CV12-1522 PHX DGC (MHB)

Kevin R. Rucks,
Petitioner,

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ORDER

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v.

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Charles Ryan, et al.,
Respondents.

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Pending before the Court are the petition for writ of habeas corpus filed by pro se

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Petitioner Kevin R. Rucks (Doc. 1), and the Report and Recommendation (“R&R”)

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issued by United States Magistrate Judge Michelle H. Burns (Doc. 17). The R&R

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recommends that the petition be denied because the asserted claims are procedurally

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defaulted. Petitioner filed a written objection to the R&R. Doc. 28. Petitioner has not

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requested oral argument.

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I.

Background.

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Petitioner does not object to the R&R’s recitation of facts, and therefore the Court

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will adopt it summarily. On February 11, 2011, Petitioner pled guilty to four offenses.

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Doc. 17 at 2. The trial court accepted the pleas and sentenced Petitioner to presumptive

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sentences for each offense, all to be served concurrently. Id.

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On April 18, 2011, Petitioner filed a notice of post-conviction relief (“PCR”). Id.

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The trial court appointed counsel to represent Petitioner, who subsequently reviewed the

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record and notified the court that she found no colorable claims. Id. On December 5,

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2011, Petitioner filed a pro per PCR petition. Id. at 2-3.

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On June 18, 2012, before the trial court ruled on the PCR petition, Petitioner filed

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a Special Action in the Arizona Court of Appeals. Id. at 3. On June 26, 2012, Petitioner

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filed an “Amicus Curiae Procedure for Special Actions Rule 7.(f)(g)” (hereinafter

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“Amicus”) in the Arizona Court of Appeals, which supplemented the claims advanced in

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his Special Action. Id. On June 28, 2012, the Arizona Court of Appeals declined to

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accept jurisdiction of Petitioner’s Special Action. Id.

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On July 12, 2012, the trial court dismissed Petitioner’s PCR petition. Id. The

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record does not indicate that Petitioner sought review of the trial court’s decision in the

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Arizona Court of Appeals. Id.

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Petitioner’s writ of habeas corpus raises four grounds for relief. Doc. 1. The R&R

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concludes that the claims are procedurally defaulted and that Petitioner has failed to

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establish a basis to overcome the procedural bar. Doc. 17 at 9-10.

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II.

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Discussion.
The Court may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by a magistrate judge in a habeas case.

See 28 U.S.C.

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§ 636(b)(1). The Court must undertake a de novo review of those portions of the

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R&R to which specific objections are made. See id.; Fed. R. Civ. P. 72(b)(3); United

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States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Petitioner makes two

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objections: (1) the Special Action exhausted his claims (Doc. 28 at 3); and (2) discovery

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would prove that he is “Not Guilty” (id. at 4).

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A.

Exhaustion.

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The R&R finds that Petitioner’s claims are unexhausted and procedurally

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defaulted because Petitioner did not properly present them to the Arizona Court of

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Appeals. Doc. 17 at 8-9. Petitioner argues that because the trial court failed to timely

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rule on his PCR petition, his Special Action satisfies the exhaustion requirement.

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Doc. 28 at 2. “Claims are not fairly presented if they are raised in a procedural context in

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which the merits will not be considered absent special circumstances.” Kajander v.

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Shroeder, No. CV-08-1172-PHX-GMS (GEE), 2009 WL 775395, *2 (D. Ariz. Mar. 20,
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2009) (quotation marks and citations omitted). Because acceptance of jurisdiction of a

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Special Action is highly discretionary, the filing of a Special Action is not a mechanism

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to fairly present claims for exhaustion purposes. Kajander, 2009 WL 775395 at *3; see

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also Little v. Schriro, No. CV-06-2591-PHX-FJM, 2008 WL 2115230, *12 (D. Ariz. May

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19, 2008); Craig v. Schriro, CV-06-0626-PHX-PGR, 2006 WL 2872219, *10 (D. Ariz.

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Oct.5, 2006); Rodriquez v. Klein, No. CV-05-3852-PHX-NVW, 2006 WL 1806020, *4

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(D. Ariz. June 28, 2006).

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The timing of the trial court’s ruling on Petitioner’s PCR petition does not change

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the exhaustion analysis. Petitioner argues that the trial court did not review his PCR

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petition according to the timeframe set in Arizona Rule of Criminal Procedure 32.6

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(Doc. 28 at 2), but Petitioner failed to file a Petition for Review, and thus Petitioner failed

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to properly present that claim for federal habeas exhaustion purposes. The Court denies

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Petitioner’s objection to the R&R’s finding that Petitioner’s claims are unexhausted and

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procedurally defaulted.

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B.

Discovery.

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A procedurally defaulted claim will not be barred from federal review if the

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petitioner can demonstrate that a miscarriage of justice would result.

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Thompson, 501 U.S. 722, 750 (1991). A “fundamental miscarriage of justice” occurs

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when “a constitutional violation has probably resulted in the conviction of one who is

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actually innocent.” Schlup v. Delo, 513 U.S. 298, 327 (1995) (quotation marks and

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citations omitted). “To be credible, such a claim requires petitioner to support his

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allegations of constitutional error with new reliable evidence – whether it be exculpatory

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scientific evidence, trustworthy eyewitness actions, or critical physical evidence – that

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was not presented at trial.” Schlup, 513 U.S. at 324. Although Petitioner argues that

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additional discovery would prove he is “Not Guilty” (Doc. 28 at 4), Petitioner does not

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identify credible evidence that, if obtained through discovery, would establish his actual

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innocence. The Court agrees with the R&R that Petitioner has not established that a

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fundamental miscarriage of justice would result if the Court denies his claims.
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Coleman v.

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IT IS ORDERED:

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1.

Magistrate Judge Michelle H. Burns R&R (Doc. 17) is accepted.

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2.

Petitioner’s petition for writ of habeas corpus (Doc. 1) is denied.

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3.

A certificate of appealability and leave to proceed in forma pauperis on

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appeal are denied because Petitioner has not made a substantial showing of

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the denial of a constitutional right as required by 28 U.S.C. § 2253(c)(2).

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4.

The Clerk of Court is directed to terminate this action.

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Dated this 17th day of May, 2013.

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