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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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Michael Devaughn Johnson, Petitioner, 10 11 ORDER v. 12 No. CV-15-01499-PHX-ROS Joseph M Arpaio, et al., 13 Respondents. 14 15 Petitioner filed a Petition for Writ of Habeas Corpus on August 3, 2015. (Doc. 1.) 16 Petitioner’s Amended Petition for Writ of Habeas Corpus raised three grounds for relief: 17 (1) Petitioner was denied a fair trial when the number of jurors was reduced during trial 18 in violation of his right to a fair jury trial; (2) Petitioner is actually innocent in light of 19 newly discovered evidence; and (3) Petitioner was arrested without probable cause in 20 violation of the Fourth Amendment. (Doc. 5 at 6-8.) Petitioner subsequently moved to 21 voluntarily strike the second and third grounds for relief. (Doc. 16 at 1.) 22 On August 18, 2016, Magistrate Judge Michelle H. Burns issued a Report and 23 Recommendation (“R&R”) recommending this Court (1) grant Petitioner’s motion to 24 strike the second and third grounds for relief (Doc. 16) in light of Petitioner’s 25 submissions and the procedural status of these two grounds; (2) deny with prejudice 26 Petitioner’s first ground for relief based on procedural default; and (3) deny a Certificate 27 of Appealability and leave to proceed in forma pauperis on appeal. (Doc. 21 at 16.) On 28 August 29, 2016, Petitioner objected to the Magistrate Judge’s R&R with regard to 1 Petitioner’s first ground for relief. (Doc. 23.) 2 A district judge “may accept, reject, or modify, in whole or in part, the findings or 3 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). Where any party 4 has filed timely objections to the R&R, the district court’s review of the part objected to 5 must be de novo. Id. Here, Petitioner timely objected to the Magistrate Judge’s R&R 6 with regard to Petitioner’s first ground for relief. (See Doc. 23.) After reviewing the 7 record, the R&R, and the Petitioner’s objections, the Court will adopt the R&R and 8 supplement the R&R with the following discussion related to Petitioner’s objections. 9 I. DISCUSSION. 10 A state prisoner must exhaust his remedies in state court before petitioning for a 11 writ of habeas corpus in federal court. 28 U.S.C. § 2254(b)(1), (c). Proper exhaustion 12 requires a petitioner to have fairly presented to the state court the exact federal claim by 13 describing the factual allegations and the federal legal theory upon which his habeas 14 claim is based. See Picard v. Connor, 404 U.S. 270, 275-78 (1971); Duncan v. Henry, 15 513 U.S. 364, 365-66 (1995) (“If state courts are to be given the opportunity to correct 16 alleged violations of prisoner’s federal rights, they must surely be alerted to the fact that 17 the prisoners are asserting claims under the United States Constitution.”). In the Ninth 18 Circuit, “[i]f a petitioner fails to alert the state court to the fact that he is raising a federal 19 constitutional claim, his federal claim is unexhausted regard[]less of its similarity to the 20 issues raised in state court.” Casey v. Moore, 386 F.3d 896, 914 (9th Cir. 2004) (citing 21 Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996)); see also Shumway v. Payne, 223 22 F.3d 982, 987-88 (9th Cir. 2000) (finding petitioner failed to exhaust her federal claim 23 even though she previously alleged state court claims that arose from the same factual 24 basis upon which she later rested her federal claims because “mere similarity between a 25 claim of state and federal error is insufficient to establish exhaustion”). 26 A. 27 After conducting a review of the record, the Magistrate Judge found Petitioner’s 28 first ground for relief was not exhausted because “Petitioner failed to raise the claim MAGISTRATE JUDGE’S RECOMMENDATION. -2- 1 alleged in Ground One as a federal constitutional claim on direct appeal – and the state 2 courts did not address it as one.” (Doc. 21 at 13.) The R&R also concluded Petitioner 3 failed to establish grounds to excuse the procedural default and never argued a 4 fundamental miscarriage of justice. (Id. at 12-14.) 5 B. 6 Petitioner only objected to the Magistrate Judge’s exhaustion holding on two 7 bases. (Doc. 23.) First, Petitioner believed raising a structural error claim for the 8 reduction of his jury on direct appeal constituted presenting a federal error to the state 9 courts. (Id. at 1.) Second, Petitioner argued he exhausted his claim when he presented to 10 state court a state claim which is identical or functionally identical to a federal claim. 11 (Id.) The Court will address each argument in turn. 12 PETITIONER’S OBJECTIONS. 1. 13 Petitioner’s Structural Error Claim Did Not Constitute Presenting a Federal Structural Error to the State Courts. 14 “To raise the federal legal theory for purposes of exhaustion, a petitioner must 15 simply characterize a claim as federal in nature, by either referencing specific provisions 16 of the Constitution or citing to federal or state case law analyzing the federal 17 constitutional issue.” Castillo v. McFadden, 399 F.3d 993, 1005-06 (9th Cir. 2004) 18 (internal citations omitted). Here, Petitioner’s direct appeal and his requests for post- 19 conviction relief do not reference any federal constitutional provisions or federal law to 20 support his structural error argument. Although Petitioner’s objections to the Magistrate 21 Judge’s R&R cited to a Supreme Court case to support his argument that depriving him 22 of a verdict by twelve jurors constituted a federal structural error, Petitioner never 23 characterized his claim as federal in nature prior to his habeas petition. Thus, Petitioner’s 24 first basis for arguing he properly exhausted is unconvincing. 25 26 2. The State Claim Argument Petitioner Presented to State Court Is Not Identical or Functionally Identical to a Federal Claim. 27 Petitioner’s Amended Petition for Writ of Habeas Corpus stated his first ground 28 for relief as “denial of [P]etitioner[’]s right to a fair jury trial in violation of the Sixth -3- 1 Amendment, and the Ariz. Const. Art. II Sec[tion] 23.” 2 Petitioner alleged in his objections that he raised the violation as a Sixth Amendment 3 issue in addition to a violation under the Arizona state constitution, the record indicates 4 he only raised the issue as a violation under state law. (Doc 13-3 at 11.) And in order for 5 Petitioner to have fairly presented his first ground for relief, Petitioner must have raised 6 the exact federal claim. See Casey, 386 F.3d at 914 (citations omitted). (Doc. 5 at 6.) Although 7 Petitioner’s objections cited Peterson v. Lampert to support the proposition 8 “raising a state claim [which] is functionally identical to a federal claim is sufficient to 9 fairly present a federal claim” but the court in Peterson did not reach this holding. 319 10 F.3d 1153, 1160 (9th Cir. 2003) (en banc) (“We need not decide whether, after Duncan, 11 citation of an identical or functionally identical state-law claim is sufficient to present a 12 federal claim . . . .”). In fact, the Ninth Circuit found the petitioner in Peterson failed to 13 show the standards under state and federal law are more than similar and held the 14 petitioner’s “reference to the right to adequate assistance of counsel under the Oregon 15 Constitution did not fairly present his federal claim of ineffective assistance of counsel 16 under the Federal Constitution.” Id. at 1161. The court in Peterson did note some 17 circuits previously held (before Duncan v. Henry, 513 U.S. 364 (1995)) that presenting a 18 state-law claim which is functionally identical to a federal claim is sufficient to fairly 19 present the federal claim, however, the Ninth Circuit expressly did not adopt this 20 approach in Peterson. Id. at 1160 (stating “[t]he Supreme Court in Duncan left open the 21 question of what happens when the state and federal standards are not merely similar, but 22 are, rather, identical or functionally identical”); see also Sanders v. Ryder, 342 F.3d 991, 23 1000 (9th Cir. 2003) (recognizing “Peterson did not decide whether a prisoner may 24 exhaust a federal constitutional claim by referring to a state constitutional right when the 25 contours of the federal and state constitutional rights are identical”). Thus, Peterson does 26 not support Petitioner’s proposition. 27 28 The Ninth Circuit’s decision in Sanders could offer Petitioner a little more support, but even Sanders is not dispositive here. -4- In Sanders, the Ninth Circuit 1 distinguished Peterson and recognized an ineffective assistance of counsel claim was 2 exhausted when (1) a pro se petitioner relied on federal authority in his briefing and (2) 3 the Washington state courts analyze both the state and federal claims under an identical 4 Strickland standard. Sanders, 342 F.3d at 999-1000. The Ninth Circuit, however, found 5 it significant the petitioner there was pro se on direct appeal and had in fact cited federal 6 authority in one of his briefs in support of his argument. Id. at 999-1001. Unlike the 7 petitioner in Sanders, Petitioner was represented by counsel on appeal to the Arizona 8 Court of Appeals, and Petitioner’s briefing did not reference federal authority for his 9 arguments. “Where [] the citation to the state case has no signal in the text of the brief 10 that the petitioner raises federal claims or relies on state law cases that resolve federal 11 issues, the federal claim is not fairly presented.” Casey, 386 F.3d at 912 n.13 (internal 12 citations omitted). “[W]e cannot assume federal claims were impliedly brought by virtue 13 of the fact that they may be ‘essentially the same’ as state law claims. Id. at 914. 14 Further, even if the Court were to assume that raising a claim that is identical 15 under state and federal law could satisfy the exhaustion requirement, Petitioner would not 16 have exhausted his state court remedies here because Petitioner failed to show his 17 particular claim would be treated identically under state and federal law. Petitioner’s 18 objections to the R&R argued Article II, Section 23 of the Arizona Constitution (the state 19 constitution’s Sixth Amendment analog) “provides substantially the same right to a jury 20 trial as does the Sixth Amendment.” (Doc. 23 at 2) (citing State v. Ring, 204 Ariz. 534 21 (Ariz. 2003) and referencing State v. Carlson, 202 Ariz. 570 (Ariz. 2002) which 22 interprets defendant’s right to trial by an impartial jury under the Arizona Constitution as 23 co-extensive with the Sixth Amendment to the U.S. Constitution). However, Petitioner 24 must show Arizona courts treat Petitioner’s particular claimed violation identically under 25 both the state and federal constitutions. Fields v. Waddington, 401 F.3d 1018, 1022-1023 26 (9th Cir. 2005) (citing Howell v. Mississippi, 543 U.S. 440 (2005) (per curiam) and 27 looking to state case law to see whether the state courts have treated a claimed 28 constitutional violation regarding a jury instruction under state law identically to its -5- 1 treatment under the federal Constitution). Here, Petitioner raised an issue with reducing 2 his jury to less than twelve people when he was tried for a crime which could result in a 3 sentence of over thirty years. (Doc. 13-3 at 1-27.) Under the Arizona Constitution, 4 “[j]uries in criminal cases in which a sentence of death or imprisonment for thirty years 5 or more is authorized by law shall consist of twelve persons.” Ariz. Const., art. II, § 23. 6 This protection is only articulated in the Arizona constitution. Compare Ariz. Const., art. 7 II, § 23 with U.S. Const. amend. VI. The federal constitution contains no requirement 8 that criminal juries have 12 members. United States v. Brown, 784 F.3d 1301, 1303 (9th 9 Cir. 2015). Petitioner only presented arguments regarding the jury size under Arizona 10 state law and, thus, the state claim Petitioner presented to state court cannot be construed 11 as identical to a federal claim. 12 exhausted his claim is not convincing. Therefore, Petitioner’s second basis for arguing he 13 Accordingly, 14 IT IS ORDERED the Report and Recommendation (Doc. 21) is ADOPTED. 15 IT IS FURTHER ORDERED the Petitioner’s objections to Magistrate Judge 16 17 18 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. 19 IT IS FURTHER ORDERED Petitioner’s first ground for relief as stated in his 20 Amended Petition for Writ of Habeas Corpus (Doc. 5) is DENIED and DISMISSED 21 WITH PREJUDICE. 22 IT IS FURTHER ORDERED a Certificate of Appealability and leave to proceed 23 in forma pauperis on appeal is DENIED because the dismissal is justified by a plain 24 procedural bars and jurists of reason would not find the procedural ruling debatable. 25 Dated this 13th day of January, 2017. 26 27 Honorable Roslyn O. Silver Senior United States District Judge 28 -6-

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