Ellsworth v. Arizona, State of et al

Filing 25

ORDER ADOPTING 19 Magistrate Judge's Report and Recommendation. The First Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 5 ) is denied and dismissed with prejudice. That a Certificate of Appealability is denied because the dismissal of the First Amended Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable. Clerk shall terminate this action.Signed by Judge Steven P Logan on 9/24/15. (EJA)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Christopher Lynn Ellsworth, 9 10 Petitioner, vs. 11 12 State of Arizona, et al., Respondents. 13 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV-13-02106-PHX-SPL ORDER 15 Before the Court is Petitioner Christopher Lynn Ellsworth’s First Amended 16 Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 5). The 17 Honorable James F. Metcalf, United States Magistrate Judge, has issued a Report and 18 Recommendation (“R&R”) (Doc. 19), recommending that the petition be denied. 19 Petitioner has filed an Objection to the R&R. (Doc. 22.) For the reasons that follow, the 20 Court accepts and adopts the R&R, and denies the petition. 21 I. Background 22 In July 2012, Petitioner was arrested in a hotel room located in Arizona.1 In the 23 room, police officers found 19.5 grams of methamphetamine, drug paraphernalia, and 24 more than $25,000 in cash. (Doc. 5-1.) On September 21, 2012, a complaint was filed in 25 the San Carlos Apache Tribal Court, Case No. CR2012-2526, charging Petitioner with 26 racketeering, unlawful drug use, possession of drug paraphernalia, and endangerment. 27 1 28 Specifically, Petitioner asserts that the hotel room was located on the San Carlos Apache Tribe Reservation. 1 (Doc. 5-2.) Petitioner entered into a plea agreement in which he pleaded guilty to one 2 count of Racketeering-Unlawful Use of Dangerous Drugs and a fine, in exchange for 3 dismissal of the remaining charges and a sentencing recommendation for no jail or 4 probation. (Doc. 5-2.) Petitioner also entered into a settlement agreement, agreeing to 5 forfeiture of certain confiscated funds, with the balance and other property to be returned 6 to him or to his counsel. (Doc. 5-3.) The tribal court accepted the plea agreement, 7 directed the payment of the fine, and ordered return of the balance of the funds to defense 8 counsel, under the condition that it “may be used as and in evidence the same as the 9 original currency against Defendant Ellsworth by the state of Arizona or any Federal 10 Court in any other criminal proceedings.” (Docs. 5-2; 5-3.) 11 Prior to the conclusion of his tribal court proceedings, on August 8, 2012, 12 Petitioner was indicted in Gila County Superior Court, Case No. CR2012-371, on charges 13 of possession of dangerous drugs for sale, possession of paraphernalia, and use of 14 dangerous drugs. (Doc. 5-4.) 15 Following sentencing in tribal court, Petitioner filed a motion to dismiss in state 16 court arguing that his state court prosecution was barred by his right against double 17 jeopardy under state and federal law. (Doc. 5-1.) The state court denied the motion. (Doc. 18 5-8.) Petitioner filed a Petition for Special Action on January 29, 2013 with the Arizona 19 Court of Appeals, seeking interlocutory review on his claim that his prosecution was 20 barred by the Double Jeopardy Clause. (Doc. 5-5.) On February 20, 2013, the Arizona 21 Court of Appeals summarily declined to accept jurisdiction. (Doc. 5-5.) Petitioner then 22 sought review of that order by the Arizona Supreme Court, which was summarily denied. 23 (Doc. 5-5.) 24 Petitioner ultimately proceeded to trial, and was convicted of a lesser included 25 offense of possession of dangerous drugs, as well as the paraphernalia and drug use 26 charges. (Doc. 5-8.) On March 11, 2013, Petitioner was sentenced to concurrent terms of 27 imprisonment totaling 4.5 years. (Doc. 5-8.) Petitioner did not file a direct appeal or a 28 2 1 petition for post-conviction relief.2 2 Petitioner filed a federal habeas petition on October 15, 2013, commencing the 3 instant action. (Doc. 1.) On November 18, 2013, Petitioner filed a First Amended Petition 4 for Writ of Habeas Corpus (Doc. 5), raising one claim for relief. Petitioner claims that his 5 state prosecution was barred by the Double Jeopardy Clause because he had previously 6 been convicted in San Carlos Apache Tribal Court for the same offenses. The petition 7 was fully briefed, and the Magistrate Judge issued an R&R recommending that the 8 petition be denied because Petitioner’s claims are procedurally barred from review. 9 II. Standard of Review 10 The Court may accept, reject, or modify, in whole or in part, the findings or 11 recommendations made by a magistrate judge. See 28 U.S.C. § 636(b)(1). The Court 12 must undertake a de novo review of those portions of the R&R to which specific 13 objections are made. See id.; Fed. R. Civ. P. 72(b)(3); United States v. Reyna–Tapia, 328 14 F.3d 1114, 1121 (9th Cir. 2003). However, a petitioner is not entitled as of right to de 15 novo review of evidence and arguments raised for the first time in an objection to the 16 R&R, and whether the Court considers the new facts and arguments presented is 17 discretionary. United States v. Howell, 231 F.3d 615, 621-622 (9th Cir. 2000). 18 III. Discussion 19 Petitioner has objected to the R&R’s finding that his claim is procedurally 20 defaulted and barred from review. Petitioner’s arguments culminate into one primary 21 point: he contends that because the state court lacked jurisdiction to convict him, his 22 conviction was invalid from the onset and he was therefore not required to comply with 23 the state rules to exhaust his claims. This argument is without merit. 24 Here, Petitioner is seeking federal habeas relief from this Court under 28 U.S.C. § 25 2254. While Petitioner argues that he should not have been required to exhaust state 26 remedies because his conviction was inherently unfair or unconstitutional in the first 27 2 28 Although Petitioner indicates in his petition that he filed a direct appeal, the reference refers to the interlocutory special action petition. (Doc. 5 at 2-4.) 3 1 instance, that theory does not void ab initio the requirements that must be satisfied in 2 order to obtain federal habeas review and relief. 3 A federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, which 4 affords relief to a person in custody pursuant to the judgment of a state court in violation 5 of the Constitution and laws of the United States, is governed by the Antiterrorism and 6 Effective Death Penalty Act of 1996 (“AEDPA”).3 28 U.S.C. § 2244. Under the AEDPA, 7 a federal court may not grant habeas relief if the petitioner has failed to exhaust his claim 8 in state court. 28 U.S.C. § 2254(b)(1) & (c); O’Sullivan v. Boerckel, 526 U.S. 838, 839 9 (1999). “[A] petitioner fairly and fully presents a claim to the state court for purposes of 10 satisfying the exhaustion requirement if he presents the claim: (1) to the proper forum, (2) 11 through the proper vehicle, and (3) by providing the proper factual and legal basis for the 12 claim.” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005) (internal citations 13 omitted). A petitioner must present his claims to the state’s highest court in a 14 procedurally appropriate manner. O’Sullivan, 526 U.S. at 848. A petitioner “must give 15 the state courts one full opportunity to resolve any constitutional issues by invoking one 16 complete round of the State’s established appellate review process.” Id. at 845. “[C]laims 17 of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona 18 Court of Appeals has ruled on them” either on direct appeal or through appropriate post- 19 conviction relief. Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Roettgen v. 20 Copeland, 33 F.3d 36, 38 (9th Cir. 1994). If a petitioner fails to invoke the required 21 procedure, exhaustion is not satisfied even if the petitioner raises the claim through an 22 alternative procedure. See e.g., Roettgen, 33 F.3d at 38. 23 As the Magistrate Judge correctly found, Petitioner did not exhaust his claim, and 24 the claim is therefore procedurally barred from review by this Court. While a petition for 25 special action is the appropriate vehicle to obtain judicial appellate review of an 26 interlocutory double jeopardy claim, see State v. Moody, 94 P.3d 1119, 1133 (Ariz. 2004) 27 3 28 The AEDPA applies to cases that were filed after its effective date, April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). 4 1 (citing Nalbandian v. Superior Court In and For County of Maricopa, 786 P.2d 977, 981 2 (Ariz. Ct. App. 1989)), the Arizona Court of Appeals did not review the claim on its 3 merits and declined to exercise jurisdiction over the petition. Therefore, the special action 4 petition did not serve to fairly present Petitioner's claims for purposes of the exhaustion 5 requirement. See Castille v. Peoples, 489 U.S. 346, 351 (1989); Roettgen, supra. 6 Petitioner also did not present his claim on direct appeal or in post-conviction relief 7 proceedings following his conviction, and the availability of interlocutory special action 8 review did not preclude him from presenting his double jeopardy claim in those forums at 9 that time. See State v. Felix, 149 P.3d 488, 490 (Ariz. Ct. App. 2006). Cf. 28 U.S.C. § 10 2254(b)(1)(B) (an exception to the exhaustion requirement exists where there is an 11 absence of an available state corrective process or circumstances exist that render the 12 process ineffective). 13 While Petitioner challenges jurisdictional jurisprudence and the fairness of the 14 system, he does not assert any basis to establish cause for the procedural default of his 15 claims, nor does he maintain a claim of actual innocence. See Coleman v. Thompson, 501 16 U.S. 722, 731 (1991) (discussing “cause” and “prejudice”); Schlup v. Delo, 513 U.S. 298, 17 327 (1995) (discussing “fundamental miscarriage of justice”). Therefore, finding his 18 claim is procedurally barred from review, the Court will adopt the R&R recommending 19 that the petition be denied. Accordingly, 20 IT IS ORDERED: 21 1. 22 accepted and adopted by the Court; 2. 23 24 That Magistrate Judge’s Report and Recommendation (Docs. 19) is That the First Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 5) is denied and dismissed with prejudice; 3. 25 That a Certificate of Appealability is denied because the dismissal of the 26 First Amended Petition is justified by a plain procedural bar and jurists of reason would 27 not find the procedural ruling debatable; and 28 /// 5 1 4. That the Clerk of Court shall terminate this action. 2 Dated this 24th day of September, 2015. 3 4 Honorable Steven P. Logan United States District Judge 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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