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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Christopher Lynn Ellsworth,

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Petitioner,
vs.

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State of Arizona, et al.,
Respondents.

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No. CV-13-02106-PHX-SPL
ORDER

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Before the Court is Petitioner Christopher Lynn Ellsworth’s First Amended

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Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 5). The

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Honorable James F. Metcalf, United States Magistrate Judge, has issued a Report and

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Recommendation (“R&R”) (Doc. 19), recommending that the petition be denied.

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Petitioner has filed an Objection to the R&R. (Doc. 22.) For the reasons that follow, the

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Court accepts and adopts the R&R, and denies the petition.

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I.

Background

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In July 2012, Petitioner was arrested in a hotel room located in Arizona.1 In the

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room, police officers found 19.5 grams of methamphetamine, drug paraphernalia, and

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more than $25,000 in cash. (Doc. 5-1.) On September 21, 2012, a complaint was filed in

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the San Carlos Apache Tribal Court, Case No. CR2012-2526, charging Petitioner with

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racketeering, unlawful drug use, possession of drug paraphernalia, and endangerment.

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Specifically, Petitioner asserts that the hotel room was located on the San Carlos
Apache Tribe Reservation.

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(Doc. 5-2.) Petitioner entered into a plea agreement in which he pleaded guilty to one

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count of Racketeering-Unlawful Use of Dangerous Drugs and a fine, in exchange for

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dismissal of the remaining charges and a sentencing recommendation for no jail or

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probation. (Doc. 5-2.) Petitioner also entered into a settlement agreement, agreeing to

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forfeiture of certain confiscated funds, with the balance and other property to be returned

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to him or to his counsel. (Doc. 5-3.) The tribal court accepted the plea agreement,

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directed the payment of the fine, and ordered return of the balance of the funds to defense

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counsel, under the condition that it “may be used as and in evidence the same as the

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original currency against Defendant Ellsworth by the state of Arizona or any Federal

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Court in any other criminal proceedings.” (Docs. 5-2; 5-3.)

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Prior to the conclusion of his tribal court proceedings, on August 8, 2012,

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Petitioner was indicted in Gila County Superior Court, Case No. CR2012-371, on charges

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of possession of dangerous drugs for sale, possession of paraphernalia, and use of

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dangerous drugs. (Doc. 5-4.)

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Following sentencing in tribal court, Petitioner filed a motion to dismiss in state

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court arguing that his state court prosecution was barred by his right against double

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jeopardy under state and federal law. (Doc. 5-1.) The state court denied the motion. (Doc.

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5-8.) Petitioner filed a Petition for Special Action on January 29, 2013 with the Arizona

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Court of Appeals, seeking interlocutory review on his claim that his prosecution was

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barred by the Double Jeopardy Clause. (Doc. 5-5.) On February 20, 2013, the Arizona

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Court of Appeals summarily declined to accept jurisdiction. (Doc. 5-5.) Petitioner then

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sought review of that order by the Arizona Supreme Court, which was summarily denied.

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(Doc. 5-5.)

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Petitioner ultimately proceeded to trial, and was convicted of a lesser included

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offense of possession of dangerous drugs, as well as the paraphernalia and drug use

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charges. (Doc. 5-8.) On March 11, 2013, Petitioner was sentenced to concurrent terms of

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imprisonment totaling 4.5 years. (Doc. 5-8.) Petitioner did not file a direct appeal or a

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petition for post-conviction relief.2

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Petitioner filed a federal habeas petition on October 15, 2013, commencing the

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instant action. (Doc. 1.) On November 18, 2013, Petitioner filed a First Amended Petition

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for Writ of Habeas Corpus (Doc. 5), raising one claim for relief. Petitioner claims that his

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state prosecution was barred by the Double Jeopardy Clause because he had previously

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been convicted in San Carlos Apache Tribal Court for the same offenses. The petition

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was fully briefed, and the Magistrate Judge issued an R&R recommending that the

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petition be denied because Petitioner’s claims are procedurally barred from review.

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II.

Standard of Review

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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. See 28 U.S.C. § 636(b)(1). The Court

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must undertake a de novo review of those portions of the R&R to which specific

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objections are made. See id.; Fed. R. Civ. P. 72(b)(3); United States v. Reyna–Tapia, 328

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F.3d 1114, 1121 (9th Cir. 2003). However, a petitioner is not entitled as of right to de

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novo review of evidence and arguments raised for the first time in an objection to the

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R&R, and whether the Court considers the new facts and arguments presented is

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discretionary. United States v. Howell, 231 F.3d 615, 621-622 (9th Cir. 2000).

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III.

Discussion

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Petitioner has objected to the R&R’s finding that his claim is procedurally

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defaulted and barred from review. Petitioner’s arguments culminate into one primary

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point: he contends that because the state court lacked jurisdiction to convict him, his

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conviction was invalid from the onset and he was therefore not required to comply with

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the state rules to exhaust his claims. This argument is without merit.

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Here, Petitioner is seeking federal habeas relief from this Court under 28 U.S.C. §

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2254. While Petitioner argues that he should not have been required to exhaust state

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remedies because his conviction was inherently unfair or unconstitutional in the first

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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.)
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instance, that theory does not void ab initio the requirements that must be satisfied in

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order to obtain federal habeas review and relief.

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A federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, which

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affords relief to a person in custody pursuant to the judgment of a state court in violation

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of the Constitution and laws of the United States, is governed by the Antiterrorism and

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Effective Death Penalty Act of 1996 (“AEDPA”).3 28 U.S.C. § 2244. Under the AEDPA,

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a federal court may not grant habeas relief if the petitioner has failed to exhaust his claim

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in state court. 28 U.S.C. § 2254(b)(1) & (c); O’Sullivan v. Boerckel, 526 U.S. 838, 839

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(1999). “[A] petitioner fairly and fully presents a claim to the state court for purposes of

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satisfying the exhaustion requirement if he presents the claim: (1) to the proper forum, (2)

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through the proper vehicle, and (3) by providing the proper factual and legal basis for the

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claim.” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005) (internal citations

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omitted). A petitioner must present his claims to the state’s highest court in a

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procedurally appropriate manner. O’Sullivan, 526 U.S. at 848. A petitioner “must give

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the state courts one full opportunity to resolve any constitutional issues by invoking one

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complete round of the State’s established appellate review process.” Id. at 845. “[C]laims

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of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona

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Court of Appeals has ruled on them” either on direct appeal or through appropriate post-

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conviction relief. Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Roettgen v.

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Copeland, 33 F.3d 36, 38 (9th Cir. 1994). If a petitioner fails to invoke the required

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procedure, exhaustion is not satisfied even if the petitioner raises the claim through an

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alternative procedure. See e.g., Roettgen, 33 F.3d at 38.

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As the Magistrate Judge correctly found, Petitioner did not exhaust his claim, and

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the claim is therefore procedurally barred from review by this Court. While a petition for

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special action is the appropriate vehicle to obtain judicial appellate review of an

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interlocutory double jeopardy claim, see State v. Moody, 94 P.3d 1119, 1133 (Ariz. 2004)

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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).

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(citing Nalbandian v. Superior Court In and For County of Maricopa, 786 P.2d 977, 981

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(Ariz. Ct. App. 1989)), the Arizona Court of Appeals did not review the claim on its

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merits and declined to exercise jurisdiction over the petition. Therefore, the special action

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petition did not serve to fairly present Petitioner's claims for purposes of the exhaustion

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requirement. See Castille v. Peoples, 489 U.S. 346, 351 (1989); Roettgen, supra.

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Petitioner also did not present his claim on direct appeal or in post-conviction relief

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proceedings following his conviction, and the availability of interlocutory special action

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review did not preclude him from presenting his double jeopardy claim in those forums at

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that time. See State v. Felix, 149 P.3d 488, 490 (Ariz. Ct. App. 2006). Cf. 28 U.S.C. §

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2254(b)(1)(B) (an exception to the exhaustion requirement exists where there is an

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absence of an available state corrective process or circumstances exist that render the

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process ineffective).

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While Petitioner challenges jurisdictional jurisprudence and the fairness of the

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system, he does not assert any basis to establish cause for the procedural default of his

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claims, nor does he maintain a claim of actual innocence. See Coleman v. Thompson, 501

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U.S. 722, 731 (1991) (discussing “cause” and “prejudice”); Schlup v. Delo, 513 U.S. 298,

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327 (1995) (discussing “fundamental miscarriage of justice”). Therefore, finding his

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claim is procedurally barred from review, the Court will adopt the R&R recommending

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that the petition be denied. Accordingly,

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IT IS ORDERED:

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1.

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accepted and adopted by the Court;
2.

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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.

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That a Certificate of Appealability is denied because the dismissal of the

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First Amended Petition is justified by a plain procedural bar and jurists of reason would

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not find the procedural ruling debatable; and

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That the Clerk of Court shall terminate this action.

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Dated this 24th day of September, 2015.

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Honorable Steven P. Logan
United States District Judge

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