Johnson v. Arpaio et al

Filing 24

ORDER ADOPTING REPORT AND RECOMMENDATION: IT IS ORDERED the Report and Recommendation (Doc. 21 ) is ADOPTED. Petitioner's objections to Magistrate Judge Burns' Report and Recommendation (Doc. 23 ) are OVERRULED. Petitioner's moti on to strike the second and third grounds for relief (Doc. 16 ) is GRANTED. Petitioner's first ground for relief as stated in his Amended Petition for Writ of Habeas Corpus (Doc. 5 ) is DENIED and DISMISSED WITH PREJUDICE. A Certificate of Ap pealability and leave to proceed in forma pauperis on appeal is DENIED because the dismissal is justified by a plain procedural bars and jurists of reason would not find the procedural ruling debatable. Signed by Senior Judge Roslyn O Silver on 1/13/17. (KGM)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Michael Devaughn Johnson,
Petitioner,

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ORDER

v.

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No. CV-15-01499-PHX-ROS

Joseph M Arpaio, et al.,

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Respondents.

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Petitioner filed a Petition for Writ of Habeas Corpus on August 3, 2015. (Doc. 1.)

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Petitioner’s Amended Petition for Writ of Habeas Corpus raised three grounds for relief:

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(1) Petitioner was denied a fair trial when the number of jurors was reduced during trial

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in violation of his right to a fair jury trial; (2) Petitioner is actually innocent in light of

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newly discovered evidence; and (3) Petitioner was arrested without probable cause in

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violation of the Fourth Amendment. (Doc. 5 at 6-8.) Petitioner subsequently moved to

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voluntarily strike the second and third grounds for relief. (Doc. 16 at 1.)

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On August 18, 2016, Magistrate Judge Michelle H. Burns issued a Report and

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Recommendation (“R&R”) recommending this Court (1) grant Petitioner’s motion to

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strike the second and third grounds for relief (Doc. 16) in light of Petitioner’s

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submissions and the procedural status of these two grounds; (2) deny with prejudice

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Petitioner’s first ground for relief based on procedural default; and (3) deny a Certificate

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of Appealability and leave to proceed in forma pauperis on appeal. (Doc. 21 at 16.) On

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August 29, 2016, Petitioner objected to the Magistrate Judge’s R&R with regard to

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Petitioner’s first ground for relief. (Doc. 23.)

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A district judge “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). Where any party

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has filed timely objections to the R&R, the district court’s review of the part objected to

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must be de novo. Id. Here, Petitioner timely objected to the Magistrate Judge’s R&R

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with regard to Petitioner’s first ground for relief. (See Doc. 23.) After reviewing the

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record, the R&R, and the Petitioner’s objections, the Court will adopt the R&R and

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supplement the R&R with the following discussion related to Petitioner’s objections.

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I.

DISCUSSION.

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A state prisoner must exhaust his remedies in state court before petitioning for a

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writ of habeas corpus in federal court. 28 U.S.C. § 2254(b)(1), (c). Proper exhaustion

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requires a petitioner to have fairly presented to the state court the exact federal claim by

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describing the factual allegations and the federal legal theory upon which his habeas

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claim is based. See Picard v. Connor, 404 U.S. 270, 275-78 (1971); Duncan v. Henry,

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513 U.S. 364, 365-66 (1995) (“If state courts are to be given the opportunity to correct

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alleged violations of prisoner’s federal rights, they must surely be alerted to the fact that

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the prisoners are asserting claims under the United States Constitution.”). In the Ninth

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Circuit, “[i]f a petitioner fails to alert the state court to the fact that he is raising a federal

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constitutional claim, his federal claim is unexhausted regard[]less of its similarity to the

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issues raised in state court.” Casey v. Moore, 386 F.3d 896, 914 (9th Cir. 2004) (citing

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Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996)); see also Shumway v. Payne, 223

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F.3d 982, 987-88 (9th Cir. 2000) (finding petitioner failed to exhaust her federal claim

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even though she previously alleged state court claims that arose from the same factual

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basis upon which she later rested her federal claims because “mere similarity between a

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claim of state and federal error is insufficient to establish exhaustion”).

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A.

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After conducting a review of the record, the Magistrate Judge found Petitioner’s

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first ground for relief was not exhausted because “Petitioner failed to raise the claim

MAGISTRATE JUDGE’S RECOMMENDATION.

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alleged in Ground One as a federal constitutional claim on direct appeal – and the state

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courts did not address it as one.” (Doc. 21 at 13.) The R&R also concluded Petitioner

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failed to establish grounds to excuse the procedural default and never argued a

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fundamental miscarriage of justice. (Id. at 12-14.)

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B.

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Petitioner only objected to the Magistrate Judge’s exhaustion holding on two

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bases. (Doc. 23.) First, Petitioner believed raising a structural error claim for the

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reduction of his jury on direct appeal constituted presenting a federal error to the state

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courts. (Id. at 1.) Second, Petitioner argued he exhausted his claim when he presented to

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state court a state claim which is identical or functionally identical to a federal claim.

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(Id.) The Court will address each argument in turn.

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PETITIONER’S OBJECTIONS.

1.

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Petitioner’s Structural Error Claim Did Not Constitute
Presenting a Federal Structural Error to the State Courts.

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“To raise the federal legal theory for purposes of exhaustion, a petitioner must

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simply characterize a claim as federal in nature, by either referencing specific provisions

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of the Constitution or citing to federal or state case law analyzing the federal

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constitutional issue.” Castillo v. McFadden, 399 F.3d 993, 1005-06 (9th Cir. 2004)

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(internal citations omitted). Here, Petitioner’s direct appeal and his requests for post-

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conviction relief do not reference any federal constitutional provisions or federal law to

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support his structural error argument. Although Petitioner’s objections to the Magistrate

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Judge’s R&R cited to a Supreme Court case to support his argument that depriving him

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of a verdict by twelve jurors constituted a federal structural error, Petitioner never

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characterized his claim as federal in nature prior to his habeas petition. Thus, Petitioner’s

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first basis for arguing he properly exhausted is unconvincing.

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2.

The State Claim Argument Petitioner Presented to State Court
Is Not Identical or Functionally Identical to a Federal Claim.

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Petitioner’s Amended Petition for Writ of Habeas Corpus stated his first ground

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for relief as “denial of [P]etitioner[’]s right to a fair jury trial in violation of the Sixth

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Amendment, and the Ariz. Const. Art. II Sec[tion] 23.”

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Petitioner alleged in his objections that he raised the violation as a Sixth Amendment

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issue in addition to a violation under the Arizona state constitution, the record indicates

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he only raised the issue as a violation under state law. (Doc 13-3 at 11.) And in order for

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Petitioner to have fairly presented his first ground for relief, Petitioner must have raised

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the exact federal claim. See Casey, 386 F.3d at 914 (citations omitted).

(Doc. 5 at 6.)

Although

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Petitioner’s objections cited Peterson v. Lampert to support the proposition

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“raising a state claim [which] is functionally identical to a federal claim is sufficient to

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fairly present a federal claim” but the court in Peterson did not reach this holding. 319

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F.3d 1153, 1160 (9th Cir. 2003) (en banc) (“We need not decide whether, after Duncan,

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citation of an identical or functionally identical state-law claim is sufficient to present a

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federal claim . . . .”). In fact, the Ninth Circuit found the petitioner in Peterson failed to

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show the standards under state and federal law are more than similar and held the

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petitioner’s “reference to the right to adequate assistance of counsel under the Oregon

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Constitution did not fairly present his federal claim of ineffective assistance of counsel

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under the Federal Constitution.” Id. at 1161. The court in Peterson did note some

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circuits previously held (before Duncan v. Henry, 513 U.S. 364 (1995)) that presenting a

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state-law claim which is functionally identical to a federal claim is sufficient to fairly

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present the federal claim, however, the Ninth Circuit expressly did not adopt this

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approach in Peterson. Id. at 1160 (stating “[t]he Supreme Court in Duncan left open the

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question of what happens when the state and federal standards are not merely similar, but

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are, rather, identical or functionally identical”); see also Sanders v. Ryder, 342 F.3d 991,

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1000 (9th Cir. 2003) (recognizing “Peterson did not decide whether a prisoner may

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exhaust a federal constitutional claim by referring to a state constitutional right when the

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contours of the federal and state constitutional rights are identical”). Thus, Peterson does

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not support Petitioner’s proposition.

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The Ninth Circuit’s decision in Sanders could offer Petitioner a little more
support, but even Sanders is not dispositive here.

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In Sanders, the Ninth Circuit

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distinguished Peterson and recognized an ineffective assistance of counsel claim was

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exhausted when (1) a pro se petitioner relied on federal authority in his briefing and (2)

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the Washington state courts analyze both the state and federal claims under an identical

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Strickland standard. Sanders, 342 F.3d at 999-1000. The Ninth Circuit, however, found

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it significant the petitioner there was pro se on direct appeal and had in fact cited federal

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authority in one of his briefs in support of his argument. Id. at 999-1001. Unlike the

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petitioner in Sanders, Petitioner was represented by counsel on appeal to the Arizona

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Court of Appeals, and Petitioner’s briefing did not reference federal authority for his

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arguments. “Where [] the citation to the state case has no signal in the text of the brief

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that the petitioner raises federal claims or relies on state law cases that resolve federal

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issues, the federal claim is not fairly presented.” Casey, 386 F.3d at 912 n.13 (internal

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citations omitted). “[W]e cannot assume federal claims were impliedly brought by virtue

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of the fact that they may be ‘essentially the same’ as state law claims. Id. at 914.

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Further, even if the Court were to assume that raising a claim that is identical

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under state and federal law could satisfy the exhaustion requirement, Petitioner would not

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have exhausted his state court remedies here because Petitioner failed to show his

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particular claim would be treated identically under state and federal law. Petitioner’s

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objections to the R&R argued Article II, Section 23 of the Arizona Constitution (the state

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constitution’s Sixth Amendment analog) “provides substantially the same right to a jury

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trial as does the Sixth Amendment.” (Doc. 23 at 2) (citing State v. Ring, 204 Ariz. 534

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(Ariz. 2003) and referencing State v. Carlson, 202 Ariz. 570 (Ariz. 2002) which

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interprets defendant’s right to trial by an impartial jury under the Arizona Constitution as

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co-extensive with the Sixth Amendment to the U.S. Constitution). However, Petitioner

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must show Arizona courts treat Petitioner’s particular claimed violation identically under

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both the state and federal constitutions. Fields v. Waddington, 401 F.3d 1018, 1022-1023

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(9th Cir. 2005) (citing Howell v. Mississippi, 543 U.S. 440 (2005) (per curiam) and

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looking to state case law to see whether the state courts have treated a claimed

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constitutional violation regarding a jury instruction under state law identically to its

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treatment under the federal Constitution). Here, Petitioner raised an issue with reducing

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his jury to less than twelve people when he was tried for a crime which could result in a

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sentence of over thirty years. (Doc. 13-3 at 1-27.) Under the Arizona Constitution,

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“[j]uries in criminal cases in which a sentence of death or imprisonment for thirty years

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or more is authorized by law shall consist of twelve persons.” Ariz. Const., art. II, § 23.

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This protection is only articulated in the Arizona constitution. Compare Ariz. Const., art.

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II, § 23 with U.S. Const. amend. VI. The federal constitution contains no requirement

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that criminal juries have 12 members. United States v. Brown, 784 F.3d 1301, 1303 (9th

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Cir. 2015). Petitioner only presented arguments regarding the jury size under Arizona

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state law and, thus, the state claim Petitioner presented to state court cannot be construed

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as identical to a federal claim.

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exhausted his claim is not convincing.

Therefore, Petitioner’s second basis for arguing he

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Accordingly,

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IT IS ORDERED the Report and Recommendation (Doc. 21) is ADOPTED.

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IT IS FURTHER ORDERED the Petitioner’s objections to Magistrate Judge

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Burn’s Report and Recommendation (Doc. 23) are OVERRULED.
IT IS FURTHER ORDERED Petitioner’s motion to strike the second and third
grounds for relief (Doc. 16) is GRANTED.

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IT IS FURTHER ORDERED Petitioner’s first ground for relief as stated in his

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Amended Petition for Writ of Habeas Corpus (Doc. 5) is DENIED and DISMISSED

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WITH PREJUDICE.

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IT IS FURTHER ORDERED a Certificate of Appealability and leave to proceed

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in forma pauperis on appeal is DENIED because the dismissal is justified by a plain

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procedural bars and jurists of reason would not find the procedural ruling debatable.

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Dated this 13th day of January, 2017.

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Honorable Roslyn O. Silver
Senior United States District Judge

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