Navarro v. Ryan

Filing 93

ORDER declining the 72 R&R and this matter is remanded back to Magistrate Judge Metcalf for a determination as set forth. See document for complete details. Signed by Judge G Murray Snow on 11/22/2016. (ATD)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Robert Raymond Navarro,
Petitioner,

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ORDER

v.

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No. CV-12-01899-PHX-GMS

Charles L. Ryan,

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Respondent.

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Pending before the Court are Petitioner Robert Raymond Navarro’s Amended

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Petition for Writ of Habeas Corpus (Doc. 7) and United States Magistrate Judge James F.

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Metcalf’s Report and Recommendation (“R&R”), which recommends that the motion be

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denied. (Doc. 72.) Petitioner Navarro filed timely objections to the R&R. (Doc. 78.)

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See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72; United States v. Reyna–Tapia, 328 F.3d 1114,

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1121 (9th Cir. 2003).

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Petitioner’s first objection to the R&R is that it applies the wrong standard for

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determining whether Petitioner’s claim should be dismissed. The R&R recommends that,

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to avoid the complicated considerations of cause and prejudice for default pursuant to

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Martinez v. Ryan, 132 S. Ct. 1309 (2012), the petition be dismissed pursuant to 28 U.S.C.

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§ 2254(b)(2), which is a merits dismissal. (Doc. 72 at 21–22.) A dismissal on the merits

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under § 2254(b)(2) is proper only in those cases in which the petition is, “on [its] face and

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without regard to any facts that could be developed below, clearly not meritorious.”

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Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002).

Therefore, while “the

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procedural-bar issue . . . ordinarily should be” resolved before addressing the merits,

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there is no sense in resolving the complicated question of procedural default “if the

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ultimate dismissal of the petition is a foregone conclusion.” Id. at 1232 (quoting Lambrix

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v. Singletary, 520 U.S. 518, 525 (1997)). The Ninth Circuit has since clarified that “a

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federal court may deny an unexhausted petition on the merits only when it is perfectly

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clear that the applicant does not raise even a colorable federal claim.” Cassett v. Stewart,

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406 F.3d 614, 623–2 (9th Cir. 2005) (emphasis added).

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As the above cases demonstrate, the focus of the inquiry into the merits is on the

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allegations of the petition. “To allege a colorable claim, [a petitioner] must allege facts

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that, if true, would entitle him to relief.” West v. Ryan, 608 F.3d 477, 485 (9th Cir. 2010)

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(citing Schriro v. Landrigan, 550 U.S. 465, 474 (2007)). Sometimes of course, a petition

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can allege facts that require the expansion of the record. “‘In deciding whether to grant

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an evidentiary hearing, a federal court must consider whether such a hearing could enable

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an applicant to prove the petition’s factual allegations’ and whether those allegations, if

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true, would entitle him to relief.” Id. (quoting Landrigan, 550 U.S. at 474).

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The R&R apparently deems this last step unnecessary in light of Magistrate Judge

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Metcalf’s previous determination that even if the factual record could be supplemented to

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consider whether there was cause and prejudice sufficient to cure a procedural default

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pursuant to Martinez, the AEDPA, specifically 28 U.S.C. § 2254(e)(2), would prohibit

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the consideration of such evidence for purposes of determining whether there were

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grounds for relief under the petition. Thus, rather than reviewing the allegations of the

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Petition to determine whether they are colorable, the R&R recommends a determination

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on the merits that focuses on the evidence in the currently existing state court record.

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(Doc. 72 at 23.) This method necessarily requires the Petitioner to meet his burden of

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proof on his claims at this stage based on that record. (Id.) (“Finally it is important to

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note that because the undersigned has proceeded to the actual merits . . . the undersigned

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does not apply the lower “some merit” standard applicable under Martinez. Instead,

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Petitioner must meet his burdens of proof of establishing his claims.”) (emphasis added).

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While the Court is grateful for the explanation in Magistrate Judge Metcalf’s R&R

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and his previous orders, this Court’s reading of those precedents is not in line with

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Magistrate Judge Metcalf’s. As the R&R acknowledges, the Ninth Circuit has rejected

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without equivocation the proposition that Pinholster or § 2254(e)(2) prevent a court in

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appropriate circumstances from considering new evidence to determine whether there is

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cause and prejudice sufficient to excuse a state court default. Dickens v. Ryan, 740 F.3d

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1302, 1321 (9th Cir. 2014) (holding that in appropriate circumstances a PCR petitioner

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claiming ineffective assistance may present evidence to demonstrate cause, prejudice and

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substantial prejudice); See also Woods v. Sinclair, 764 F.3d 1109, 1138 n.16 (9th Cir.

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2014) (“We leave for the district court to resolve whether an evidentiary hearing should

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be held in connection with Woods’s Martinez claims. To the extent that the State argues

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that Pinholster and § 2254(e)(2) categorically bar Woods from obtaining such a hearing

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or from presenting extra-record evidence to establish cause and prejudice for the

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procedural default, we reject this argument.”)

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In addition to noting the right to present such evidence in a cause hearing,

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however, Dickens further noted that “if [petitioner] can show cause and prejudice to

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excuse a procedural default, AEDPA no longer applies and a federal court may hear this

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new claim de novo.” Dickens, 740 F.3d at 1321 (citing Pirtle v. Morgan, 313 F.3d 1160,

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1167 (9th Cir. 2002) (holding that “when it is clear that a state court has not reached the

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merits of a properly raised issue, we must review it de novo”)). In light of this holding, if

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Petitioner Navarro were to introduce new evidence that successfully established cause

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and prejudice, he would also necessarily establish the inapplicability of AEDPA as well

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as this Court’s affirmative obligation to review the claim de novo.

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circumstance the AEDPA would not apply, and therefore § 2254(e)(2) would not bar the

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Court from hearing new evidence developed in a cause and prejudice hearing that might

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provide grounds for relief in its new habeas claims.

In such a

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In his previous ruling, Magistrate Judge Metcalf discusses Judge Callahan’s

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dissent in Dickens’ as well as several other cases to justify his determination that § 2254

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would bar federal courts from considering whether evidence developed in a cause hearing

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would establish grounds for relief under AEDPA. (Doc. 69 at 10–12.) In this respect,

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Judge Callahan’s dissent suggests that petitioners should be required to file an

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unsuccessful successive state court PCR petition before they can qualify for a Martinez

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cause hearing. Dickens, 740 F.3d at 1327 (Callahan, C.J. dissenting in part). Judge

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Callahan’s dissent does not challenge Dickens’ conclusion that if cause and prejudice is

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established, the federal courts must review habeas claims for which default is excused de

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novo. Id. As thought-provoking as Judge Callahan’s argument is that Petitioners should

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be obliged to file an unsuccessful successive petition in state court alleging ineffective

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assistance before qualifying for a Martinez hearing, her dissent is still a dissent. Dickens

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is the law of the Ninth Circuit, and Dickens establishes that if cause and prejudice are

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satisfied, the restrictions of AEDPA no longer apply.

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As a result, this Court concludes that Petitioner Navarro is not absolutely

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precluded from developing evidence in a cause hearing that also may be used as grounds

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for relief if cause and prejudice are sufficiently established. The R&R does determine

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that none of Mr. Navarro’s claims are colorable, but only does so after having determined

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that, in this context, no evidence could be used as a basis for relief on the underlying trial

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ineffectiveness claim. For the reasons explained above, the Court does not accept that

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conclusion as a matter of law. Further, accepting the R&R as it now stands would

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prevent a judge from evaluating whether there are sufficient allegations in the petition to

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state a claim and whether the supplementation of the evidentiary record “could enable an

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applicant to prove the petition’s factual allegations’ and whether those allegations, if true,

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would entitle him to relief.” West, 608 F.3d at 485 (internal quotations omitted).

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Nevertheless, the R&R does, at considerable length, analyze each of the

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Petitioner’s claims and finds each of them meritless based on the existing state court

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record. While the Court does not accept the presumptions and standard applied in

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making this determination, and thus does not accept any of the conclusions arrived at by

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the R&R in this regard, the Court does not suppose that the matters stated by the R&R in

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its review are necessarily irrelevant to the question of whether Mr. Navarro’s petition

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states colorable claims, and whether additional specified discovery might help him

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establish those claims. It is possible that even applying the appropriate standard, the

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Magistrate Judge might still find that some or all of the claims in the petition are not

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colorable.

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determination.

This matter is remanded to Magistrate Judge Metcalf to make that

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Of course, should Magistrate Judge Metcalf determine that some or all of the

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claims are colorable, he will need to determine, pursuant to Martinez, whether Petitioner

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Navarro can establish cause and prejudice to excuse his default. In doing so, Magistrate

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Judge Metcalf will need to consider whether it is appropriate to allow the

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supplementation of the factual record. Martinez itself refutes the notion that just because

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a Martinez motion is brought, record supplementation is required:

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The holding here ought not to put a significant strain on state resources.
When faced with the question whether there is cause for an apparent
default, a State may answer that the ineffective-assistance of-trial-counsel
claim is insubstantial, i.e., it does not have any merit or that it is wholly
without factual support or that the attorney in the initial-review collateral
proceeding did not perform below constitutional standards.
Martinez, 132 St. Ct. at 1319.

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Should Magistrate Judge Metcalf determine that some record supplementation is

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appropriate, that is far from giving Petitioner license to go fishing. As Rules 6 through 8

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of the Rules Governing Section 2254 make clear, a judge is intimately involved in

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determining any additional discovery which may be granted.

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Section § 2254, R. 6–8. Such discovery may be granted only on good cause and may be

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appropriately limited and regulated by the Judge. Id. at R. 6. Further, it is the Judge who

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directs the supplementation of the record and in what respect. Id. at R. 7(a). It is also the

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Judge that determines whether a hearing is ultimately necessary. Id. at R. 8(a). Thus

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presumably, the Petitioner will have to identify with some specificity the evidence with

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See Rules Governing

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which he seeks to supplement the record, and demonstrate how that might serve to

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establish Petitioner’s claims before such requests are granted.

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The Court therefore remands to Magistrate Judge Metcalf for an individualized

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claim determination of the extent, if any, to which Navarro’s Petition states a claim. If

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Navarro does in fact state a claim, then the Magistrate Judge should also determine the

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extent, if any, to which Plaintiff should be allowed to seek to supplement the record, and

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if such supplementation is allowed, if Petitioner establishes cause and prejudice on any of

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his claims and if, ultimately, he establishes any grounds on which Magistrate Judge

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Metcalf would recommend that he receive relief.

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remanded back to Magistrate Judge Metcalf for a determination as set forth above.

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IT IS HEREBY ORDERED declining the R&R (Doc. 72) and this matter is

Dated this 22nd day of November, 2016.

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Honorable G. Murray Snow
United States District Judge

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