Holmes v. Ryan et al
Filing
16
ORDER ADOPTING REPORT AND RECOMMENDATION. IT IS ORDERED that Magistrate Judge Metcalf's R&R (Doc. 13 ) is accepted and adopted. Petitioner's Objections (Doc. 14 ) are overruled. IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1 ) is denied and dismissed with prejudice. IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied. IT IS FURTHER ORDERED that the Clerk of Court shall terminate this action and enter judgment accordingly. (See document for further details). Signed by Judge Diane J Humetewa on 5/8/17. (SLQ)
1
NOT FOR PUBLICATION
2
3
4
5
6
IN THE UNITED STATES DISTRICT COURT
7
FOR THE DISTRICT OF ARIZONA
8
9
Soccretes Joieshawn Holmes,
Petitioner,
10
11
ORDER
v.
12
No. CV-13-02256-PHX-DJH
Charles L. Ryan, et al.,
13
Respondents.
14
15
16
This matter is before the Court on Petitioner’s Petition for Writ of Habeas Corpus
17
pursuant to 28 U.S.C. § 2254 (Doc. 1) and the Report and Recommendation (“R&R”)
18
(Doc. 13) issued by United States Magistrate Judge James F. Metcalf. The Petition
19
alleges a single ground for relief – ineffective assistance of counsel (“IAC”) during plea
20
negotiations based upon Missouri v. Frye, 566 U.S. 133 (2012), and Lafler v. Cooper,
21
566 U.S. 156 (2012). After a thorough and comprehensive analysis, Magistrate Judge
22
Metcalf found that “Petitioner ultimately procedurally defaulted on th[e] [foregoing]
23
claim by failing to seek review by the Arizona Court of Appeals[.]”1 (Doc. 13 at 13:20-
24
21). “Instead, Petitioner bypassed the . . . Court of Appeals, and filed a Petition for
25
Review by the Arizona Supreme Court.”2 (Id. at 14:4-5) (citation omitted). Lastly, with
26
27
28
1
Appeals.
2
For brevity, hereinafter this Court shall be referred to as the Court of
For brevity hereinafter this Court shall be referred to as the Supreme Court.
1
respect to procedural default, the Magistrate Judge found that Petitioner could not “return
2
to the Arizona Court of Appeals to seek review[]” because such review would not be
3
timely under Arizona Rule of Criminal Procedure 32.9(c), which “requires that a petition
4
for review of the denial of a petition for post-conviction relief be filed ‘[w]ithin 30 days
5
after the final decision of the trial court.’” (Id. at 14:23-26).
6
Given that finding of procedural default, the Magistrate Judge necessarily
7
considered whether Petitioner had shown the requisite cause and prejudice to excuse such
8
default. The Magistrate Judge concluded that Petitioner did not establish cause for his
9
procedural default because he did not assert such cause in his reply or in his Petition.
In
10
light of that no cause finding, there was no need, as the Magistrate Judge accurately
11
stated, to “examine the merits of Petitioner's claims or the purported ‘prejudice’ to find an
12
absence of cause and prejudice.” (Doc. 13 at 15:24-25) (citing Engle v. Isaac, 456 U.S.
13
107, 134 n. 43 (1982)). Finally, addressing actual innocence as cause, because Petitioner
14
did not “assert any basis for a finding that no reasonable juror would have found him
15
guilty[,]” the Magistrate Judge concluded that Petitioner’s “procedurally defaulted claims
16
must be dismissed with prejudice.” (Id. at 16:20-22).
17
recommended dismissal of this Petition with prejudice and denial of a Certificate of
18
Appealability.
The Magistrate Judge thus
19
Pro se petitioner Holmes timely filed objections thereto (Doc. 14). No response
20
was filed. On March 10, 2017, Petitioner filed what the Court deems to be further
21
objections (Doc. 15).3 For the reasons set forth herein, the Court finds Petitioner’s
22
3
23
24
25
26
27
28
These objections are not timely. Nonetheless, the Court will briefly address
them. Petitioner is claiming, for the first time, that Magistrate Judge Metcalf “abuse[d]
his discretion” by filing the R & R three days after this case had been reassigned to this
District Court Judge. (Doc. 15 at 1). Petitioner believes that the foregoing violated his
constitutional rights. (Id. at 2).
Petitioner misunderstands the process for the assignment in this District of
a section 2254 Petition such as his. LRCiv 72.1(c) mandates that such a petition, among
others, “to which a District Judge has been assigned shall also be referred by the Clerk of
the Court to a Magistrate Judge according to Local Rules of Civil Procedure, Rule 3.7(e).
That Rule, in turn, provides in relevant part that “[t]he Clerk of the Court must randomly
assign . . . habeas corpus petitions to a District Judge and randomly refer them to a
Magistrate Judge.” LRCiv 3.7(e) (emphasis added). When his Petition was filed, in
-2-
1
objections to be without merit. The Court thus adopts and accepts the R & R, denies the
2
Petition and dismisses it with prejudice.
3
I. Background
4
The R& R provides a detailed recitation of the lengthy and at times somewhat
5
convoluted procedural history of this action, which includes four post-conviction relief
6
(“PCR”) proceedings and a Petition for Review to the Supreme Court. There is no need
7
to repeat that history here, except to clarify one statement in the R & R.
8
The R & R states, “On April 22, 2013, Petitioner filed in the Arizona Court of
9
Appeals a ‘Motion for Extension of Time to file Petition for Review by Supreme Court’ .
10
. . and a ‘Petition for Review by Supreme Court’[.]” (Doc. 13 at 5:8-10) (emphasis
11
added). In that Petition, as here, Petitioner sought application of the Supreme Court’s
12
decisions in Frye and Lafler. In any event, actually these two documents were filed in
13
the Supreme Court – not the Court of Appeals.4
This inadvertent misstatement does not
14
15
16
17
18
19
20
21
22
accordance with those Rules, the Clerk of the Court assigned this case to District Court
Judge Susan R. Bolton and referred it to then Magistrate Judge Steven P. Logan. (Doc.
3).
After granting Petitioner’s Application to Proceed In Forma Pauperis, Judge
Bolton referred this matter to then “Magistrate Judge Steven P. Logan pursuant to Rules
72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a report
and recommendation.” (Doc. 4 at 4:1-3). After the Petition was fully briefed, but before
the issuance of the R & R, then Magistrate Judge Logan was appointed to fill one of
several District Court Judge vacancies. Thereafter, Magistrate Judge Metcalf was
reassigned as the referral Magistrate Judge. (Doc. 11). Several months later, when the
newly appointed District Court Judges had all taken their oaths of office, the Clerk of the
Court randomly selected a number of cases for reassignment to the then recently
appointed District Court Judges. This case was among those reassigned from Judge
Bolton to this Court. As can be seen, the assignments and reassignments in this case
were all procedurally and administratively proper and in no way violated any of
Plaintiff’s constitutional rights.
4
23
24
25
26
27
28
Admittedly, both the handwritten Motion and Petition include at the top the
phrase, “In The Court of Appeals State of Arizona Division One[.]” (Doc. 10-4 at 144
and 149). Also handwritten on both documents (presumably by Petitioner or someone
acting at his behest), is the Court of Appeals case number for Petitioner’s second PCR
proceeding, “No. 1-CA-CR-0268 PRPC[,]” wherein he did not raise an IAC based upon
Frye and Lafler. (Id.) There is no indication thereon or elsewhere in the record,
however, that either the Motion or the Petition actually was filed in the Arizona Court of
Appeals. Rather, as shown on the face of both documents and the Arizona Supreme
Court’s docket, the Petition and Motion were filed in that Court on April 22, 2013. (Id. at
144; 149; and 167). Thereafter, on April 30, 2013, the Supreme Court “granted the
motion to extend[,]” and deemed the Petition to be “filed as of April 22, 2013.” (Id. at
163). On August 20, 2013the Arizona Supreme Court denied the Petition for Review.
(Id. at 165).
-3-
1
in any way change or diminish Magistrate Judge Metcalf’s sound reasoning. This is
2
because the R & R goes on to accurately explain, and the record establishes, that the
3
Motion for an Extension and the Petition for Review in the fourth PCR proceeding were
4
filed in the Supreme Court and that amounts to a procedural bar.
5
II. Standard of Review
6
“The Federal Magistrate Judge Act ‘distinguishes between nondispositive matters
7
under 28 U.S.C. § 636(b)(1)(A) and dispositive matters heard pursuant to 28 U.S.C. §
8
636(b)(1)(B)’ with respect to, inter alia, the standard of review.” Velazquez v. United
9
States, 2014 WL 2738524, at *6 (D.Ariz. June 17, 2014) (quoting United States v.
10
Abonce–Barrera, 257 F.3d 959, 968 (9th Cir. 2001)).
11
motions are subject to review under the clearly erroneous or contrary to law standard, 28
12
U.S.C. § 636(b)(1)(A); and Fed.R.Civ.P. 72(a), whereas dispositive motions are subject
13
to de novo review. 28 U.S.C. § 636(b)(1); and Fed.R.Civ.P. 72(b)(3).” Id. (internal
14
quotation marks and citation omitted).
“Generally, non-dispositive
15
“Dispositive matters specifically embraced by [28 U.S.C.] § 636(b)(1)(B) include
16
applications for posttrial relief made by individuals convicted of criminal offenses[,]”
17
such as Petitioner. Velazquez, 2014 WL 2738524, at *6 (internal quotation marks and
18
citations omitted). “Thus, the governing standard of review here is de novo.” Id. Under
19
this standard, “[a]lthough a de novo hearing is not necessary, the district court must arrive
20
at its own independent conclusion about those portions of the magistrate judge's findings
21
or recommendations to which a party objects." Id. at *7 (internal quotation marks and
22
citations omitted); see also Fed.R.Civ.P. 72(b)(3) (“The district judge must determine de
23
novo any part of the magistrate judge's disposition that has been properly objected to.”);
24
28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo determination of those
25
portions of the report or specified proposed findings or recommendations to which
26
objection is made.”) With the foregoing firmly in mind, the Court turns to Petitioner’s
27
specific objections to the R & R.
28
....
-4-
1
III. Analysis
2
A. Procedural Default
3
Carefully sorting through Petitioner’s various PCR petitions, the Magistrate Judge
4
“liberally construe[d] the Petition as asserting exhaustion of Petitioner’s state remedies in
5
his fourth PCR proceeding and that petition for review to the Arizona Supreme Court.”
6
(Doc. 13 at 6:24-26). Petitioner does not object to this construction and the Court finds it
7
to be fair and reasonable. What Petitioner does object to though is the Magistrate Judge’s
8
procedural default finding.
9
procedurally defaulted as to his fourth PCR petition, by not seeking review in the Court
10
In particular, Petitioner objects to the finding that he
of Appeals and instead seeking Supreme Court review.
11
In making this objection, Petitioner states that the Supreme Court’s orders granting
12
him an extension of time in which to file his Petition for Review, and later denying that
13
Petition, “both identify this Petition for Review to the . . . Supreme Court []as first being
14
in the . . . Court of Appeals as 1 CA-CR 11-0268 PRPC.” (Doc. 14 at 3) (emphasis
15
added). The fact that those Supreme Court orders include the Court of Appeals case
16
number from Petitioner’s second PCR petition, does not establish, as Petitioner urges,
17
that he filed and sought review of his fourth such petition in the Court of Appeals prior to
18
seeking Supreme Court review.
19
Petitioner further claims that “supporting documentation will prove that while the
20
[Court of Appeals] number was first used in” his second Petition filed in the Court of
21
Appeals in 2001, “for some reason[,] [that same number] was used again in this action.”
22
(Doc. 14 at 3) (emphasis added). If Petitioner had any such supporting documentation, it
23
was his obligation to provide it as part of his Petition. He did not. Regardless, logically
24
it would appear that the Supreme Court’s orders simply reflected the Court of Appeals
25
case number from Petitioner’s second PCR Petition, as that case number was
26
handwritten on the Petition and Motion, both of which Petitioner or someone at his
27
behest drafted. Given that Petitioner filed his third and fourth Petitions for Review while
28
his second still was pending, it is not surprising that he, or someone assisting him,
-5-
1
became confused as to which Petition had been filed in which Court and when.
2
In discussing Petitioner’s filing of a Petition for Review in the Supreme Court in
3
his fourth PCR proceeding, the Magistrate Judge noted that that Court’s “Docket reflects
4
that the . . . Court of Appeals reported that there was no record to be provided in the
5
matter.” (Doc. 13 at 5:16-18) (citation omitted).
6
March 21, 2013 order striking his motion for consideration (Doc. 10-3 at 121), Petitioner
7
challenges the statement that there was no record to be provided in his fourth proceeding.
8
That order, however, pertained to Petitioner’s second PCR Petition, not his fourth.
9
Further, the Court of Appeals docket as to Petitioner’s second PCR Petition, indicates
10
that pursuant to the Supreme Court’s request, a partial record was forwarded to the
11
Supreme Court in that case.
12
confusion as to which Petition was before the Supreme Court, the second or fourth, that
13
does not change the fact that Petitioner’s IAC during the plea process based upon Frye
14
and Lafler was not presented to the Court of Appeals. Indeed, as the Magistrate soundly
15
reasoned, and as set forth below, Petitioner’s failure to present that particular IAC to the
16
Court of Appeals barred his ability to seek federal habeas review of such claim.
Relying upon the Court of Appeals
(Doc. 10-4 at 30). Even if perhaps there was some
17
Attempting to show that despite the Magistrate Judge’s contrary finding, Petitioner
18
sought Court of Appeals review of his fourth PCR, Petitioner again directs the Court’s to
19
the Court of Appeals March 21, 2013 order, wherein that Court struck Petitioner’s motion
20
for reconsideration of that Court’s February 27, 2013 order denying review of his second
21
PCR – not his fourth. (Doc. 10-4 at 159). Thus, this particular order does nothing to
22
advance Petitioner’s argument that the Magistrate Judge erroneously found that Petitioner
23
procedurally defaulted as to his fourth PCR by not first seeking review in the Court of
24
Appeals.
25
Petitioner’s objections to the finding of procedural default are even more
26
unpersuasive when the Court considers the Magistrate Judge’s sound legal analysis, to
27
which Petitioner did not object. "Presentation at the supreme court level, but not at the
28
intermediate appellate court level was inadequate[,]" the Magistrate Judge found, because
-6-
1
"'a petitioner must properly raise [his claim] on every level of direct review.'" (Doc. 13 at
2
14:7-9 (quoting Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004)) (emphasis added).
3
The Magistrate Judge further found that "Petitioner’s Petition for Review to the Arizona
4
Supreme Court was neither a fair presentation to that court, nor was it sufficient to
5
exhaust an entire round of Arizona’s post[-]conviction relief process[]" as to the IAC
6
during plea proceedings based upon Frye and Lafler. (Id. at 14:20-22). The basis for this
7
finding is the well-established principle, relied upon by the Magistrate Judge, that
8
“’[s]ubmitting a new claim to the state's highest court in a procedural context in which its
9
merits will not be considered absent special circumstances does not constitute fair
10
presentation.’" (Id. at 14:17-19) (quoting Roettegen v. Copeland, 33 F.3d 36, 38 (9th Cir.
11
1994) (citing Castille v. Peoples, 489 U.S. 346, 351 (1989)). In short, upon de novo
12
review, the Court agrees with the Magistrate Judge and finds that Petitioner procedurally
13
defaulted his state remedies on the single ground raised in his Petition, that is, his IAC
14
based upon the plea proceedings.
15
B. Failure to Transfer Petition for Review
16
Switching gears, Petitioner is willing to assume for the sake of argument that he
17
did procedurally default by "filing his petition for review in the Arizona Supreme Court
18
instead of the Arizona Court of Appeals[.]" (Doc. 14 at 5). Nevertheless, Petitioner
19
contends that "Arizona law required that the petition for review by given to the Arizona
20
Court of Appeals[.]" (Id.) And because that was not done, Petitioner maintains that the
21
"Arizona Supreme Court took action which it had no authority to do and impeded [his]
22
opportunity to procedurally exhaust his State remedies." (Id.)
23
In making this argument, Petitioner is relying upon A.R.S. §§ 12-120.22(B) and
24
12-120.23. The former states, “No case, appeal or petition for a writ brought in the
25
supreme court or court of appeals shall be dismissed for the reason only that it was not
26
brought in the proper court or division, but it shall be transferred to the proper court of
27
division.” A.R.S. § 12-120.22(B). This statute is inapplicable because the Supreme
28
Court did not dismiss the Petition for Review because it was not brought in the “proper
-7-
1
court or division[.]” See id. Rather, the Supreme Court denied that Petition without
2
comment.
3
obligation to transfer that Petition to the Court of Appeals, as Petitioner claims.
(Doc. 10-4 at 165).
The Supreme Court was thus under no statutory
4
Section 12-120.23 is inapplicable as well. That statute reads as follows: The
5
supreme court may transfer to the court of appeals for decision a case or appeal pending
6
before the supreme court if the case or appeal is within the jurisdiction of the court of
7
appeals.” A.R.S. § 12-120.23 (emphasis added). Given the discretionary nature of this
8
statute, there is no merit to Petitioner’s contention that Arizona law “required” that the
9
Supreme Court transfer his Petition for Review to the Court of Appeals. (See Doc. 14 at
10
6). Consequently, Petitioner’s objections to the R&R based upon the foregoing statutes
11
are not valid. Moreover, even if these statutes could somehow be read as applying here,
12
as the Magistrate Judge correctly found, albeit in a different context, “Petitioner[] cannot
13
now return to the . . . Court of Appeals to seek review.” (Doc. 13 at 14:23-24).
14
simply far too late in the day for that given that “Arizona Rule of Criminal Procedure
15
32.9(c) requires that a petition for review of the denial of a petition for post-conviction
16
relief be filed ‘[w]ithin 30 days after the final decision of the trial court.’” (Id. at 14:24-
17
26).
18
It is
The Court has reviewed the remainder of Plaintiff’s objections and finds them to
19
be without merit.
20
IV. Conclusion
21
22
23
24
25
26
After performing its own de novo review, the Court has independently concluded
that the Magistrate Judge’s R & R is legally sound. Thus, based upon on the foregoing,
IT IS ORDERED that Magistrate Judge Metcalf's R&R (Doc. 13) is accepted
and adopted. Petitioner's Objections (Doc. 14) are overruled.
IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 (Doc. 1) is denied and dismissed with prejudice.
27
IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing
28
Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis
-8-
1
2
3
4
on appeal are denied.
IT IS FURTHER ORDERED that the Clerk of Court shall terminate this action
and enter judgment accordingly.
Dated this 8th day of May, 2017.
5
6
7
Honorable Diane J. Humetewa
United States District Judge
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-9-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?