Barrientes v. Ryan et al

Filing 17

ORDER that Petitioner's petition for writ of habeas corpus is denied. A certificate of appealability and leave to proceed in forma pauperis on appeal are denied because Petitioner has not made a substantial showing of the denial of a constitutional right. The Clerk shall terminate this action. Signed by Judge David G Campbell on 6/2/15. (KGM)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Jeremy Keith Barrientes,
Petitioner,

10
11

ORDER

v.

12

No. CV-15-00014-PHX-DGC

Charles L. Ryan, et al.,

13

Respondents.

14
15
16

Petitioner objects to the Magistrate Judge’s Report and Recommendation

17

(“R&R”). Doc. 13. The R&R suggests that this Court deny the pro se petition for writ of

18

habeas corpus brought pursuant to 28 U.S.C. § 2254.

19

Magistrate Judge found that Petitioner failed to exhaust his state court remedies under the

20

Anti-Terrorism and Effective Death Penalty Act (“AEDPA”). The matter is fully briefed,

21

and no party has requested oral argument. For the reasons that follow, the Court will

22

deny the petition for habeas relief.

23

I.

Doc. 12.

Specifically, the

Background.

24

On August 11, 2010, a grand jury indicted Petitioner on kidnapping, first-degree

25

burglary, theft of a means of transportation, trafficking in stolen property, two counts of

26

misconduct involving weapons, and three counts of armed robbery. Doc. 12 at 2. At the

27

time, Petitioner was on probation, and the state moved to revoke the probation after the

28

indictment was issued. Id.

1

After he was found competent to stand trial, Petitioner pled guilty on February 18,

2

2011, to two counts of armed robbery and one count of misconduct involving weapons.

3

Id. The remaining counts were dismissed, and Petitioner was sentenced to concurrent

4

sentences of 21 years on the two armed robbery counts and a concurrent sentence of 2.5

5

years on misconduct involving weapons. Id. Petitioner received a 5-year sentence for

6

violating his probation, to be served concurrently with the other sentences. Id.

7

On March 25, 2011, Petitioner filed a motion for post-conviction relief under

8

Arizona Rule 32 challenging his guilty plea and the revocation of his probation. Id. at 2-

9

3. Petitioner’s court-appointed counsel filed a notice that he could raise no colorable

10

claims on Petitioner’s behalf. Id. at 3. Petitioner then filed a pro se motion, and the state

11

conceded that Petitioner was entitled to be resentenced. Id. In his motion, Petitioner

12

raised seven other claims: (1) his right to a speedy trial was violated; (2) the court’s

13

finding that he was competent to stand trial violated due process; (3) he was threatened

14

and coerced by the prosecutor into pleading guilty; (4) the court modified the plea

15

agreement; (5) his plea was not made knowingly, intelligently, and voluntarily; (6) the

16

court failed to set forth the aggravating factors when imposing his sentence; and

17

(7) Maricopa County jail subjected him to mental torture. Id.

18

On October 16, 2012, the state court partially granted Petitioner’s motion for post-

19

conviction relief, ordered that he be resentenced, and denied his other claims. Id. The

20

court found that because Petitioner pled guilty, he had waived all non-jurisdictional

21

defects and defects occurring prior to the plea, as well as all claims of ineffective

22

assistance of counsel not relating to his plea. Id. As a result, Petitioner was precluded

23

from raising his speedy trial claim, his competency claim, the mental torture claim, and

24

his claim that the court failed to properly consider his pro per motions. Id. at 4. The

25

court also found that Petitioner’s claims that he did not understand his potential sentence

26

and was coerced into pleading guilty were meritless. Id.

27

On November 5, 2012, Petitioner appealed the trial court’s decision to the Arizona

28

Court of Appeals, which granted review and denied relief on February 25, 2014.

-2-

1

Doc. 10-5 at 35-58; 101-04, see also State v. Barrientes, Docket No. 1-CA-CR-12-0677-

2

PRPC (Ariz. Ct. App. Nov. 5, 2012). The Court of Appeals also denied Petitioner’s

3

motion for special action jurisdiction. Doc. 10-5 at 124, 132.

4

On November 12, 2012, Petitioner was resentenced to the same terms previously

5

imposed. Doc. 12 at 4. Petitioner then filed a second petition for post-conviction relief

6

in September 2013 (Doc. 10-3 at 46-90, Doc. 10-4), which was denied by the trial court

7

in January 2014 (Doc. 10-5 at 32-33). The Arizona Court of Appeals docket indicates

8

that Petitioner has appealed the denial of his second petition, but the matter is still

9

pending. See State v. Barrientes, Docket No. 1-CA-CR-14-0069-PRPC (Ariz. Ct. App.

10

Jan. 27, 2014).

11

There has been considerable confusion in this case about when and whether

12

Petitioner appealed the denials of his two Rule 32 petitions and when the Arizona Court

13

of Appeals ruled on them. The Magistrate Judge concluded that Petitioner did not appeal

14

the denial of his first petition. Doc. 12 at 4. Respondents contend that Petitioner filed an

15

appeal of the first petition, but assert that “the Court of Appeals did not do anything with

16

the case” because it was improperly appealed. Doc. 14 at 3. The Court’s review of the

17

record suggests that both are incorrect.

18

Petitioner did appeal the denial of his first Rule 32 motion. The appeal was filed

19

on November 5, 2012, as shown at Doc. 10-1 at 4. The appeal was assigned case number

20

1-CA-CR-12-0677-PRPC. See State v. Barrientes, Docket No. 1-CA-CR-12-0677-PRPC

21

(Ariz. Ct. App. Nov. 5, 2012). The Arizona Court of Appeals decided this appeal on

22

February 25, 2014, and found that Petitioner had failed to present the petition in the form

23

required by Arizona law. Doc. 10-5 at 101-04. The fact that this decision concerned the

24

first petition and not the second is clear from at least two facts: the decision bore the

25

number of the first appeal (1-CA-CR-12-0677-PRPC), and noted that “[t]he trial court

26

granted relief on a sentencing issue and resentenced Barrientes to the same sentence in

27

both cases,” a clear reference to the first petition. Id. at 101-02.

28

Petitioner appealed the trial court’s denial of his second Rule 32 petition on

-3-

1

January 27, 2014, and it was assigned appeal number 1-CA-CR-14-0069-PRPC. See

2

State v. Barrientes, Docket No. 1-CA-CR-14-0069-PRPC (Ariz. Ct. App. Jan. 27, 2014).

3

A review of the docket of the Arizona Court of Appeals shows that no decision has been

4

made on this appeal. Id.

5

II.

6

Analysis.
The Court may accept, reject, or modify, in whole or in part, the findings or

7

recommendations made by a magistrate judge in a habeas case.

8

§ 636(b)(1). The Court must undertake a de novo review of those portions of the R&R to

9

which specific objections are made. See id.; Fed. R. Civ. P. 72(b)(3); United States v.

10

Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Petitioner’s sole objection is that the

11

Magistrate Judge incorrectly found that he failed to appeal the state court’s denial of his

12

first petition. Doc. 13. He argues that he properly exhausted his claims.1

See 28 U.S.C.

13

The AEDPA prohibits a federal court from reviewing a petition for writ of habeas

14

corpus filed “on behalf of a person in custody pursuant to the judgment of a State court”

15

unless the petitioner has “exhausted the remedies available in the court of the State[.]” 28

16

U.S.C. § 2254(b)(1)(A); see O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) (“Before a

17

federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his

18

remedies in state court.”); Kyzar v. Ryan, 780 F.3d 940, 946 (9th Cir. 2015) (same).

19

“[T]he exhaustion doctrine is designed to give the state courts a full and fair opportunity

20

to resolve federal constitutional claims before those claims are presented to the federal

21

courts.” O’Sullivan, 526 U.S. at 845.

22

If the state court denies relief for “noncompliance with a state procedural rule, the

23

federal claim is procedurally defaulted and a federal court cannot grant relief unless

24

petitioner shows cause for the default and prejudice resulting from the alleged

25

constitutional violation.” Smith v. Or. Bd. of Parole & Post-Prison Supervision, 736 F.3d

26
27
28

1

To the extent Petitioner challenges the entirety of the R&R in his one-paragraph
objection, the Court declines to address the challenge. General objections have the same
effect as a failure to object, and create no right to de novo review. Warling v. Ryan, No.
CV-12-1396-PHX-DGC, 2013 WL 5276367, at *2 (D. Ariz. Sept. 19, 2013).
-4-

1

857, 862 (9th Cir. 2013) (citing Wainwright v. Sykes, 433 U.S. 72, 90-91 (1977)). In this

2

case, Petitioner procedurally defaulted the claims in his first petition and does not assert

3

cause, prejudice, or actual innocence in his objection to the R&R.

4

“For the procedural default rule to apply, ‘the application of the state procedural

5

rule must provide an adequate and independent state law basis on which the state court

6

can deny relief.’” Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014) (quoting Bennett v.

7

Mueller, 322 F.3d 573, 580 (9th Cir. 2003)). A ground is independent if “the last state

8

court rendering a judgment in the case clearly and expressly states that its judgment rests

9

on a state procedural bar.” Harris v. Reed, 489 U.S. 255, 263 (1989). A ground is

10

adequate if it is clear, consistently applied, and well-established at the time of petitioner’s

11

purported default. Lambright v. Stewart, 241 F.3d 1201, 1203 (9th Cir. 2001).

12

The Arizona Court of Appeals found that Petitioner’s first petition failed to

13

comply with Rule 32 because Petitioner failed to “set forth specific claims, present

14

sufficient argument supported by legal authority, and include citation to the record.”

15

Doc. 10-5 at 102. Denial of relief rested solely on Petitioner’s failure to comply with

16

Rule 32. Id. The court noted that “[c]ompliance with Rule 32 is not a mere formality. A

17

petitioner must strictly comply with Rule 32 in order to be entitled to relief. [Petitioner]

18

has failed to comply with Rule 32.” Id. The Arizona Supreme Court likewise has stated:

19

“We have consistently required that parties ‘strictly comply’ with [Rule 32] to be entitled

20

to relief.” Canion v. Cole, 115 P.3d 1261, 1263 (Ariz. 2005). The Arizona Court of

21

Appeals’ decision thus rested on independent and adequate grounds sufficient to support

22

a finding for procedural default, and Petitioner may not assert his first-petition claims in

23

this Court. As noted, he does not assert cause, prejudice, or actual innocence in his

24

objection to the R&R.

25

Nor can Petitioner assert the claims in his second Rule 32 petition. The second

26

petition was denied by the trial court, but, as noted above, remains pending. Because the

27

Arizona Court of Appeals has not yet decided the second-petition issues, those issues are

28

unexhausted. See McMonagle v. Meyer, 766 F.3d 1151, 1157 (9th Cir. 2014) (“The

-5-

1

exhaustion requirement affords state courts a full opportunity to consider and correct any

2

constitutional or federal law challenges to a state judgment before a habeas defendant can

3

collaterally attack the judgment in federal court.”).

4

In summary, Petitioner has procedurally defaulted on the claims in his first

5

Rule 32 petition and has not yet exhausted the claims in his second petition. For these

6

reasons, the Court will accept the Magistrate Judge’s recommendation that the habeas

7

petition be denied, albeit for slightly different reasons than those set forth in the R&R.

8

IT IS ORDERED:

9

1.

Petitioner’s petition for writ of habeas corpus is denied.

10

2.

A certificate of appealability and leave to proceed in forma pauperis on

11

appeal are denied because Petitioner has not made a substantial showing of

12

the denial of a constitutional right as required by 28 U.S.C. § 2253(c)(2).

13

3.

14

Dated this 2nd day of June, 2015.

The Clerk shall terminate this action.

15
16
17
18
19
20
21
22
23
24
25
26
27
28

-6-