Braxton v. Arizona, State of

Filing 35

ORDER - Adopting Magistrate Judge Bade's 33 R&R in its entirety and incorporating same into this Order. IT IS FURTHER ORDERED denying the 22 Second Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 and dismissin g this matter with prejudice. IT IS FURTHER ORDERED denying a Certificate of Appealability and leave to proceed in forma pauperis on appeal in this matter because the dismissal of the instant Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable. Signed by Judge John J Tuchi on 08/31/2015. (ATD)

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NOT FOR PUBLICATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Chad Everett Braxton,
Petitioner,

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No. CV-13-01916-PHX-JJT
ORDER

v.
Arizona, State of, et al.,
Respondents.

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At issue is Petitioner Chad Everett Braxton’s Second Amended Petition for Writ

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of Habeas Corpus (Doc. 22), filed October 10, 2014, to which Respondent filed its

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Response on February 27, 2015 (Doc. 30), and Petitioner filed a Reply on March 27,

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2015 (Doc. 31). Magistrate Judge Bridget S. Bade issued a Report and Recommendation

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(“R&R”) in the matter on June 4, 2015 (Doc. 33), to which Petitioner filed objections

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styled as a Response to Report and Recommendation on June 15, 2015 (Doc. 34). For

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the reasons set forth in the R&R, this Court will deny the Petition.

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Judge Bade comprehensively and correctly analyzed the issues involved in the

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Second Amended Petition, and this Court will adopt the recommendations set forth in the

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R&R as well as the reasoning supporting those recommendations. For that reason, it will

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not restate those issues or their resolution here in detail. Judge Bade correctly concluded

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that Petitioner presented none of the four issues he raises in his Second Amended Petition

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on direct appeal in the state court; nor did he raise any of the four issues in any state post-

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conviction relief proceeding. Moreover, Judge Bade concluded it is too late to go back to

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the state court and raise the issues now in either proceeding, as such an action would now

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be procedurally barred as untimely.

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procedurally defaulted. Once claims reach such a posture, a federal court may review the

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merits of those claims only if Petitioner can show both cause and prejudice, and, as set

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forth in detail in the R&R, Petitioner fails to make either showing under the relevant test.

All four claims are thus unexhausted yet

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In his Response to the R&R, Petitioner raised no new argument; he simply

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repeated the arguments in his Second Amended Petition and his Reply. Thus, Judge

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Bade’s R&R has already adequately and thoroughly addressed each of Petitioners

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arguments in his Response, and this Court will not review them in detail here again. In

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summary, Judge Bade correctly concluded that a mistake by Petitioner in sending his

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supplemental appellate brief to the wrong address did not constitute “cause” within the

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meaning of Teague v. Lane, 489 U.S. 288, 298 (1989). Petitioner’s own actions cannot

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constitute an “objective factor external to the defense” that impeded his efforts to comply

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with Arizona’s procedural rules. See id. And as Judge Bade also noted, nor can the

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Arizona Attorney General’s failure to step in and help Petitioner by rerouting his brief to

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the correct recipient constitute cause. There simply is no “cause” within the meaning of

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Teague, and the analysis could stop there, although Judge Bade correctly went on to

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justify her recommendation that this Court also find no showing of prejudice either.
IT IS ORDERED adopting Magistrate Judge Bade’s R&R in its entirety and

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incorporating same into this Order (Doc. 33).

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IT IS FURTHER ORDERED denying the Second Amended Petition for Writ of

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Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 22) and dismissing this matter with

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prejudice.

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IT IS FURTHER ORDERED denying a Certificate of Appealability and leave to

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proceed in forma pauperis on appeal in this matter because the dismissal of the instant

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Petition is justified by a plain procedural bar and jurists of reason would not find the

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procedural ruling debatable.

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Dated this 31st day of August, 2015.

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Honorable John J. Tuchi
United States District Judge

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