Clarke #227669 v. Ryan

Filing 22

ORDER ADOPTING REPORT AND RECOMMENDATION: IT IS ORDERED accepting, adopting and incorporating by reference Magistrate Judge Bade's Report and Recommendation in this matter and the analysis contained therein (Doc. 18 ). IT IS FURTHER ORDERED d enying the Petition for a writ of habeas corpus (Doc. 5 ) for the reasons set forth above and in more detail in the incorporated Report and Recommendation. IT IS FURTHER ORDERED denying a Certificate of Appealability because Petitioner has not made a substantial showing of the denial of a constitutional right. Signed by Judge John J Tuchi on 6/30/15. (KGM)

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NOT FOR PUBLICATION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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Bruce W Clarke,

No. CV-14-01810-PHX-JJT
Petitioner,

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v.

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ORDER

Charles L Ryan, et al.,

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Respondents.

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THIS MATTER is before the Court upon Magistrate Judge Bridget S. Bade’s

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Report and Recommendation (Doc. 18), to which Petitioner timely filed Objections

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(Doc. 22). The Court has considered the Petition for Writ of Habeas Corpus (Doc. 5), the

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Response thereto (Doc. 14), Petitioner’s Reply in support (Doc. 15), the R&R and the

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Objections. For the reasons stated in the R&R, the Court will deny the Petition. The

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Court concludes that Magistrate Judge Bade correctly identified the relevant law with

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respect to each of Petitioner’s purported challenges, exhaustively analyzing each of those

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challenges in light of that law. The Court therefore adopts in whole the reasoning of the

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R&R as its justification for denying the Petition. Petitioner raises three objections to the

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R&R, all of which the Court finds unavailing, as set forth below.

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Petitioner’s Claim One (a), as Judge Bade denominates it, asserts the indictment

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was flawed and therefore that the trial court lacked jurisdiction over the criminal trial.

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Judge Bade is correct in concluding the claim is procedurally barred from federal habeas

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corpus review. Petitioner failed to challenge the indictment or the trial court’s jurisdiction

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either at trial or on direct appeal. Thus both the trial court in evaluating the petition for

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post-conviction relief and the Arizona Court of Appeals in reviewing the trial court’s

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denial of that relief correctly applied Arizona Rule of Criminal Procedure 32.2(a)(3)’s

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procedural bar. That procedural bar constitutes an adequate and independent state

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procedural ground to deny review of Petitioner’s first claim. Federal habeas review is

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procedurally barred and properly denied.

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Petitioner does not appear to directly argue against the above. Rather, he objects

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that when the Arizona Supreme Court denied his petition to review the Arizona Court of

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Appeals’ denial of post-conviction relief, it violated the Due Process and Equal

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Protection Clauses of the Constitution. Judge Bade identified this challenge as Claim One

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(b) and noted that Petitioner did not present this claim to the state courts, which renders it

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unexhausted. Judge Bade correctly noted that, rather than dismissing the petition for

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containing a mix of exhausted and unexhausted claims, the Court can evaluate the

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unexhausted claim on the merits and deny it if it has no merit, pursuant to 28 U.S.C.

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Section 2254(b)(2). Upon evaluation of Claim One (b) on the merits, it fails. The Equal

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Protection claim Petitioner advances fails as conclusory and unsupported, as Judge Bade

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set forth. Similarly, Petitioner’s Due Process claim is unsupported in law. Petitioner

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asserts that the Arizona Supreme Court was required to consider the merits of his claims

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because they challenged the trial court’s jurisdiction over his criminal trial based on an

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allegedly flawed indictment. Contrary to Petitioner’s claims, the Arizona Supreme Court

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was not so required. As set forth in great detail in the R&R, Arizona law provides that

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review by the Arizona Supreme Court is discretionary except in capital cases, which this

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is not. None of the cases Petitioner cites changes that legal conclusion; nor do those cases

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establish the proposition that Petitioner had a liberty interest in the Arizona Supreme

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Court granting his petition for review of denial of post-conviction relief.

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In his objection, Petitioner cites an out-of-circuit opinion for the general

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proposition that “when dismissal of a pro se complaint is warranted, it should generally

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be without prejudice to afford plaintiff opportunity to file an amended complaint.” Good

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v. Allain, 823 F.2d 64,67 (5th Cir. 1987). This Court has no quarrel with the above

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general proposition. But it recognizes that the proposition is qualified such that when

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amendment would be futile because as a matter of law, the defect cannot be cured by

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amendment, there is no purpose in, and therefore no requirement for, allowing

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amendment. Intri–Plex Techs. v. Crest Group, Inc., 499 F.3d 1048, 1056 (9th

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Cir.2007)(dismissal without leave to amend is proper if it is clear that “the complaint

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could not be saved by any amendment.”)

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argues past the indisputable legal conclusion that, as stated above, Rule 32.2 presents an

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adequate and independent procedural bar to the claim he now wishes to make. That

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Such is the case here. Petitioner repeatedly

procedural bar makes any amendment regarding this claim futile.

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Petitioner’s next claim for relief, denominated Claim Two in the R&R, is that the

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trial court, in imposing duplicative and consecutive sentences, violated the Due Process

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and Equal Protection Clauses of the Constitution of the United States. This claim was not

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presented to the Arizona State courts either on direct appeal or on post-conviction review,

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and as such is unexhausted but procedurally barred. Rule 32 again provides that where a

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claim could have been raised at trial, on direct appeal, or in a prior post-conviction

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proceeding, but was not, it is untimely, and thus precluded from review.

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In his Objections, Petitioner again urges it was error for the Arizona Supreme

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Court to deny him the opportunity to return to the lower courts on this issue to exhaust

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this claim. The Court’s response to this objection is the same as to the last: Petitioner has

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no right to Supreme Court review in a noncapital matter.

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correctly concluded the claim is procedurally barred, and Petitioner has offered no basis

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to overcome the procedural bar, having failed to make a showing that there was any

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fundamental miscarriage of justice, cause, or prejudice.

Magistrate Judge Bade

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Finally, in Claim Three, Petitioner raises what appears to be an independent claim

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of a miscarriage of justice. Judge Bade correctly concluded that any such claim is

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procedurally barred in this instance, because Petitioner did not present it to the state

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courts on direct appeal or for post-conviction review. Moreover, to establish the existence

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of a fundamental miscarriage of justice, a petitioner must present new, reliable evidence

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that was not presented at trial, such as exculpatory scientific evidence, trustworthy

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eyewitness accounts, or critical physical evidence. The petitioner must then demonstrate

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that “it is more likely than not that no reasonable juror would have convicted him in light

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of the new evidence.” Schlup v. Delo, 513 U.S. 298, 327 (1995). Petitioner has produced

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none of the above. Nor has he demonstrated “cause” – a showing that some objective

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factor external to the defense impeded his efforts to comply with the state’s procedural

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rules – or “prejudice” – actual harm resulting from the constitutional violation or error.

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Once again, Petitioner attempts to rely on the Arizona Supreme Court’s denial of his

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motion to dismiss his petition to demonstrate cause and prejudice, claiming that this

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denial kept him from exhausting his claims. Petitioner’s argument fails. Again, this is a

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noncapital case, so to properly exhaust his claims, petitioner was not required to present

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them to the Arizona Supreme Court.

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IT IS ORDERED accepting, adopting and incorporating by reference Magistrate

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Judge Bade’s Report and Recommendation in this matter and the analysis contained

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therein (Doc. 18).

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IT IS FURTHER ORDERED denying the Petition for a writ of habeas corpus

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(Doc. 5) for the reasons set forth above and in more detail in the incorporated Report and

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Recommendation.

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IT IS FURTHER ORDERED denying a Certificate of Appealability because
Petitioner has not made a substantial showing of the denial of a constitutional right.
Dated this 30th day of June, 2015.

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Honorable John J. Tuchi
United States District Judge

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