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)

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1 NOT FOR PUBLICATION 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Soccretes Joieshawn Holmes, Petitioner, 10 11 ORDER v. 12 No.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-

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