Mata-Camacho v. Van Winkle et al

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATION, Magistrate Judge Burns' Report and Recommendation 13 is accepted; Israel Mata-Camacho's Petition for Writ of Habeas Corpus 1 is denied and dismissed with prejudice; in the event Petitioner files an appeal, the Court declines to issue a Certificate of Appealability because reasonable jurists would not find the Court's procedural ruling debatable and because Petitioner has not made a substantial showing of the denial of a constitutional right. Signed by Judge G Murray Snow on 8/14/14. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Israel Mata-Camacho,
Petitioner,

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ORDER

v.

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No. CV-13-00961-PHX-GMS

Jeffrey Van Winkle, et al.,

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Respondents.

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Pending before the Court is Petitioner Israel Mata-Camacho’s Petition for Writ of

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Habeas Corpus. (Doc. 1.) Magistrate Judge Michelle H. Burns issued a Report and

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Recommendation (“R&R”) in which she recommended that the Court deny the Petition

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with prejudice. (Doc. 13.) Petitioner filed an objection to the R&R. (Doc. 14.) Because

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an objection has been filed, the Court will review the Petition de novo. See United States

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v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc.) For the following

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reasons, the Court accepts the R&R and denies the Petition.

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BACKGROUND

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Petitioner was convicted by a jury in Pinal County Superior Court (case number

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CRE 2007–01457) of two counts of molestation of a child under the age of 15 and sexual

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conduct with a minor under the age of 15. (Doc. 9 Ex. A.) Petitioner was sentenced on

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March 18, 2009 to two terms of 17 years and one term of 35 years, to be served

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consecutively. (Id.) Petitioner appealed his sentence to the Arizona Court of Appeals on

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the basis of alleged coercion of a juror into rendering a guilty verdict. (Doc. 9 Ex. C.)

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The Arizona Court of Appeals affirmed Petitioner’s convictions and sentences. (Doc. 9

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Ex. D.) Petitioner did not file a motion for reconsideration or petition for review by the

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Arizona Supreme Court. (Doc. 9 Ex. E.)

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Petitioner initiated pro se post-conviction relief proceedings after his direct appeal,

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pursuant to Rule 32 of Arizona Rules of Criminal Procedure. (Doc. 9 Ex. F.) Petitioner

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claimed that his counsel at trial was ineffective in 11 areas. (Doc. 9 Ex. I.) Harriette P.

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Levitt, counsel for Petitioner, filed a notice with the Pinal County Superior Court stating

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that she reviewed the record and “can find no colorable claims pursuant to Rule 32” for

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Petitioner, and urged that Petitioner be allowed to filed his Rule 32 petition pro se. (Doc.

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9 Ex. G.) Petitioner’s Rule 32 arguments concerned the expert witness testimony of

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Wendy Dutton and the testimony of the sexual abuse nurse examiner who examined the

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victim.

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County Superior Court issued an order evaluating and denying Petitioner’s Rule 32 post-

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conviction relief. (Id.) Petitioner then requested a review of his Rule 32 post-conviction

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request from the Arizona Court of Appeals. (Doc. 9 Ex. K.) The Court of Appeals

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denied Petitioner’s petition for review because it “contains no description of the issues

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decided by the trial court, facts material to the consideration of those issues, or reasons

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why the petition should be granted.” (Doc. 9 Ex. L at 2.)

(Doc. 9 Ex. J.) On December 8, 2011, Judge Robert C. Brown of the Pinal

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Petitioner filed a Petition for Writ of Habeas Corpus on May 9, 2013. (Doc. 1.)

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Petitioner cites four grounds for relief in his Petition: (1) Petitioner was denied an

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impartial judge, in violation of his due process rights; (2) Petitioner’s Sixth Amendment

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due process rights were violated when a probation officer read notes from a juror’s

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notebook while the jury was out of the room, and the trial judge failed to declare a

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mistrial; (3) Petitioner’s Sixth Amendment due process rights were violated when the

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bailiff took notes out of a juror’s notebook; and (4) The trial judge issued an impasse

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instruction which had the effect of coercing a juror to agree with other jurors and enter a

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verdict of guilty. (Id.)

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The case was referred to Magistrate Judge Steven P. Logan (Doc. 2) and later to

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Magistrate Judge Michelle H. Burns (Doc. 12). After the Answer filed by Respondents

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(Doc. 9), Judge Burns issued the R&R on June 14, 2013 recommending that the Court

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deny the Petition with prejudice. (Doc. 13.) Petitioner filed an Objection to the R&R on

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June 26, 2013, stating that “his U.S. and Arizona constitutional rights have been violated

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by the action of the Maricopa County Superior Court system,” and asking for an

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evidentiary hearing. (Doc. 13 at 1.) Petitioner did not state any particular objections to

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the R&R or any specific ways that his constitutional rights were violated. Nevertheless,

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the Court will review the Petition de novo.
DISCUSSION

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The writ of habeas corpus affords relief to persons in custody in violation of the

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Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(c)(3) (2006).

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Review of Petitions for Habeas Corpus is governed by the Antiterrorism and Effective

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Death Penalty Act of 1996 (“AEDPA”). Id.; U.S.C. § 2244 et seq. A state prisoner must

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exhaust his remedies in state court before petitioning for a writ of habeas corpus in

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federal court. See 28 U.S.C. § 2254(b)(1) and (c); Duncan v. Henry, 513 U.S. 364, 365–

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66 (1995); McQueary v. Blodgett, 924 F.2d 829, 833 (9th Cir. 1991). To properly

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exhaust state remedies, a petitioner must fairly present his claims to the state’s highest

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court in a procedurally appropriate manner. See O’Sullivan v. Boerckel, 526 U.S. 838,

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839–46 (1999). In Arizona, a petitioner must fairly present his claims to the Arizona

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Court of Appeals by properly pursuing them through the state’s direct appeal process or

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through appropriate post-conviction relief. See Swoopes v. Sublett, 196 F.3d 1008, 1010

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(9th Cir. 1999); Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). Proper exhaustion

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requires a petitioner to have “fairly presented” to the state courts the exact federal claim

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he raises on habeas by describing the operative facts and federal legal theory upon which

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the claim is based. See, e.g., Picard v. Connor, 404 U.S. 270, 275–78 (1971).

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I.

Grounds One, Two, and Three

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In Grounds One, Two, and Three, Petitioner admits that he did not raise the issue

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to the Arizona Court of Appeals. (Doc. 1 at 6–8.) Raising the issue to the state’s highest

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court is required for exhaustion in order to qualify for federal habeas relief. O’Sullivan,

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526 U.S. at 839–46. Additionally, Arizona state courts would now bar consideration of

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these issues, making a return to state court futile.1 Teague v. Lane, 489 U.S. 288, 297–99

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(1989); see also Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991) (“[I]f the petitioner

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failed to exhaust state remedies and the court to which the petitioner would be required to

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present his claims in order to meet the exhaustion requirement would now find the claims

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procedurally barred . . . there is a procedural default for purposes of federal habeas.”).

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Plaintiff states several reasons for not raising the issues on appeal, however, none

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of these reasons establish cause to excuse the failure to exhaust. A federal court will not

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consider the merits of a procedurally defaulted claim unless a petitioner can demonstrate

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that a miscarriage of justice would result, or establish cause for his noncompliance and

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actual prejudice. See Schlup v. Delo, 513 U.S. 298, 321 (1995); Coleman, 501 U.S. at

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750-51. Pursuant to the “cause and prejudice” test, a petitioner must point to some

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external cause that prevented him from following the procedural rules of the state court

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and fairly presenting his claim.

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A showing of cause must ordinarily turn on whether the
prisoner can show that some objective factor external to the
defense impeded [the prisoner’s] efforts to comply with the
State’s procedural rule.
Thus, cause is an external
impediment such as government interference or reasonable
unavailability of a claim’s factual basis.

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Robinson v. Ignacio, 360 F.3d 1044, 1052 (9th Cir. 2004) (citations and internal

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quotations omitted). Plaintiff states that he did not raise the issue in Ground One because

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“[m]y appellate attorney failed to disclose this issue, stating it wasn’t important.” (Doc. 1

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at 6.) Advice of counsel is not a factor external to the defense. There is no cause

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showing that Ground One should not be procedurally defaulted. Petitioner states that he

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failed to present Ground Two to the Court of Appeals because “[m]y defense attorney

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Arizona Rule of Criminal Procedure 32.2 presents a procedural bar for a claim
that was or could have been raised in the prior proceedings. Rule 32.4(a) presents a time
bar that would make a return to state court futile.
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again stated it wasn’t sufficient to file for a mistrial, and my appellate attorney didn’t

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even communicate with me to disclose this information.” (Id. at 7.) Likewise, this is not

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a factor external to the defense. There is no cause showing that Ground Two should not

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be procedurally defaulted. Similarly, Petitioner states that he did not raise Ground Three

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on appeal because “[t]he trial judge declared it was a harmless error, and the appellate

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defense attorney neglected to disclose, even though defendant brought this issue to his

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attention.” (Id. at 8.) Once again, this reason for not raising the issue on appeal is not a

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factor external to the defense. There is no cause showing that Ground Three should not

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be procedurally defaulted.

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Grounds One, Two, and Three are all procedurally defaulted for failure to exhaust

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the state appellate remedies for those issues. Petitioner has not stated a factor external to

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the defense that impeded Petitioner’s efforts to comply with the state procedural rule. As

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Petitioner has not demonstrated cause to excuse his procedural default, the Court need not

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consider whether he also suffered actual prejudice. Therefore the portion of the R&R

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denying Grounds One, Two and Three is accepted.

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II.

Ground Four

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Ground Four of the Petition asserts a claim of juror coercion and juror misconduct.

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(Doc. 1 at 9.) But Petitioner does not allege a federal basis for this claim, only an

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Arizona statute. There is no federal habeas relief for errors of state law. Estelle v.

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McGuire, 502 U.S. 62, 67 (1991). “The habeas statute unambiguously provides that a

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federal court may issue a writ of habeas corpus to a state prisoner ‘only on the ground

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that he is in custody in violation of the Constitution or laws or treaties of the United

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States.’” Wilson v. Corcoran, 131 S.Ct. 13, 15 (2010) (quoting 28 U.S.C. § 2254(a)). “A

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habeas petition must allege the petitioner’s detention violates the constitution, a federal

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statute, or a treaty.” Franzen v. Brinkman, 877 F.2d 26 (9th Cir. 1989). Ground Four of

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the Petition does not allege a federal basis for habeas relief and therefore must be

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dismissed. This portion of the R&R is accepted.

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CONCLUSION

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Petitioner’s Grounds One, Two, and Three are procedurally defaulted, and

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Petitioner has failed to provide a basis to excuse that default. Petitioner’s Ground Four

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fails to state a basis for federal habeas relief.

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IT IS THEREFORE ORDERED that Magistrate Judge Burns’ Report and
Recommendation (Doc. 13) is ACCEPTED.
IT IS FURTHER ORDERED that Israel Mata-Camacho’s Petition for Writ of
Habeas Corpus (Doc. 1) is DENIED and DISMISSED WITH PREJUDICE.

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IT IS FURTHER ORDERED that, pursuant to Rule 11(a) of the Rules

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Governing Section 2254 cases, in the event Petitioner files an appeal, the Court declines

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to issue a Certificate of Appealability because reasonable jurists would not find the

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Court’s procedural ruling debatable, see Slack v. McDaniel, 529 U.S. 473, 484 (2000),

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and because Petitioner has not made a substantial showing of the denial of a

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constitutional right.

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Dated this 14th day of August, 2014.

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