Begay #165528 v. Shinn et al

Filing 22

ORDER: IT IS ORDERED the Report and Recommendation (Doc. 17 ) is ADOPTED. The Petition for Writ of Habeas Corpus (Doc. 1 ) is DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED Petitioner's "Motion for: exhaustion of state remedies. exhaus tion of the legal bases of the claim. exhaustion of the factual bases of the claim." (Doc. 15 ) is DENIED. IT IS FURTHER ORDERED Petitioner's motion to amend the petition for habeas corpus (Doc. 16 ) is DENIED. IT IS FURTHER ORDERED a C ertificate of Appealability is DENIED because dismissal of the petition is justified by a procedural bar and because Petitioner has not made a substantial showing of the denial of a constitutional right. Jurists of reason would not find the proced ural or constitutional rulings debatable. IT IS FURTHER ORDERED the Court shall enter judgement in favor of the Respondent. The Clerk of Court shall close this case. (See Order for full details.) Signed by Senior Judge Roslyn O Silver on 10/27/21. (SST)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Leo Begay,

No. CV-20-01083-PHX-ROS
Petitioner,

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v.

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ORDER

David Shinn, et al.,

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Respondents.

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On June 11, 2021, Magistrate Judge Camille D. Bibles issued a Report and

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Recommendation (“R&R”) recommending Petitioner Leo Begay’s petition for writ of

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habeas corpus be denied. (Doc. 17 at 26). The R&R reasons that Begay is not entitled to

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a writ of habeas corpus due to his failure to exhaust state court remedies, and because

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Begay is not entitled to habeas relief on the merits of his claims. (Doc. 17 at 26).

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With the exception noted below, the R&R will be adopted.

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I.

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On June 8, 2016, Phoenix Police responded to a potential domestic violence dispute

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involving Leo Begay. (Doc. 13-1 at 49). Begay arrived at the scene in his girlfriend’s car

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and exhibited outward signs of drunkenness. (Doc. 13-1 at 78). Begay was arrested after

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failing finger-counting and backwards counting field sobriety tests. (Doc. 13-1 at 78).

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Although Begay initially consented to a blood draw, he later withdrew his consent. (Doc.

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13-1 at 79; Doc. 17 at 5). A Phoenix Police officer served him with a warrant for a blood

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draw, (Doc. 13 at 79), and handed him a phonebook to call an attorney. (Doc. 17 at 5).

Begay’s petition for writ of habeas corpus under 28 U.S.C. § 2254

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The blood draw was a .179 with a plus or minus of .009. (Doc. 13-1 at 79).

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In January 2018, an Arizona state court jury found Begay guilty of two counts of

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aggravated driving while under the influence. (Doc. 13 at 1-2). At trial on the priors, the

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judge found three prior felony convictions that served as aggravating factors: battery of a

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police officer in New Mexico in 2010, failure to register as a sex offender in 2003, and an

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aggravated DUI in 1994, for which he was convicted in 2002. (Doc. 13-1 at 652). In total,

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the sentencing judge found three prior felony convictions and nine misdemeanors,

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including three prior DUIs. (Doc. 13-1 at 65, 650-52, 654).

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Begay’s convictions resulted in concurrent sentences of 10 years’ imprisonment.

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(Doc. 17 at 1). Begay appealed his convictions and was appointed appellate counsel. (Doc.

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17 at 5). That appointed counsel filed an Anders brief, stating he/she could not find any

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arguable issue. (Doc. 13-1 at 81). Begay then filed a pro se brief asserting the trial court

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erred by denying his motion to dismiss. (Doc. 17 at 5). He argued “the police wrongly

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denied his request for counsel [at the time of his arrest and before the blood draw] and

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‘deprived him of acquiring exculpatory evidence.’” (Doc. 17 at 5) (quoting State v. Begay,

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2019 WL 3178782, at *2 (Ariz. Ct. App. July 16, 2019)) (modification in original). The

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Court of Appeals denied Begay’s argument on the merits, reasoning:

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The superior court concluded that Appellant was not denied his right to
counsel because police gave him the opportunity to use a phonebook and
telephone to contact an attorney while in the DUI van from about 10:35 pm
until 11:15 pm, but Appellant never chose to make a phone call. Moreover,
the court considered Appellant’s statement, “[c]an I have an attorney here for
the blood draw?” And the court determined that his request was limited to
the blood draw. In addition, Appellant was given an opportunity to contact
an attorney. Also, after police advised Begay of his rights per Miranda he
was not questioned further. Miranda v. Arizona, 384 U.S. 436, 444 (1966)
(suspect’s statements made during an in-custody interrogation are only
admissible if police have informed the suspect of his or her constitutional
rights before questioning); see also State v. Smith, 193 Ariz. 452, 457 []
(1999). Thus, the superior court did not abuse its discretion.

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(Doc. 17 at 5) (quoting Begay, 2019 WL 3178782, at *2) (modifications in original). The
Arizona Supreme Court denied review, and Begay did not file a petition for post-conviction
relief in state court. (Doc. 17 at 5). Instead, Begay proceeded directly to federal court,

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filing the present petition.

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Begay asserts three claims for federal habeas relief under 28 U.S.C. § 2254. In his

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first claim, he asserts he was denied effective assistance of counsel. (Doc. 17 at 6). He

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argues his appellate counsel erred by failing to “refer[] to anything in the record that might

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arguably support the Appeal.” (Doc. 17 at 6). In his second claim, he asserts “‘[t]his case

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involves a denial of right to counsel in connection with an offense in which Blood Alcohol

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Concentration plays a significant role,’ and his ‘due process right to obtaining independent

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exculpatory evidence bearing on his alleged alcohol impairment’ was infringed.” (Doc. 17

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at 6-7) (quoting Doc. 1 at 3-4). Begay characterizes this as a matter of due process. (Doc.

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17 at 6). Begay’s third claim is that the arresting officer committed perjury when the officer

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testified that Begay was given an opportunity to contact an attorney prior to having his

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blood drawn. (Doc. 17 at 7). After reviewing Petitioner’s filings in state and federal court,

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the R&R reasons Begay is not entitled to relief on any of his three habeas claims.

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With respect to Begay’s ineffective assistance of appellate counsel claim, the R&R

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notes “Begay failed to fairly present this claim to the Arizona Court of Appeals in a

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procedurally correct manner.” (Doc. 17 at 13). Ordinarily, “to exhaust one’s state court

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remedies in Arizona, a petitioner must first raise the claim in a direct appeal or collaterally

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attack his conviction in a petition for post-conviction relief pursuant to Rule 32.” Roettgen

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v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994).

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The R&R notes the claim is procedurally defaulted because the Arizona Rules of

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Criminal Procedure regarding timeliness, waiver, and preclusion of claims prohibit Begay

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from filing a Rule 32 action at this point. (Doc. 17 at 13). The Ninth Circuit has held, “[i]f

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a prisoner has defaulted a state claim by ‘violating a state procedural rule which would

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constitute adequate and independent grounds to bar direct review . . . he may not raise the

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claim in federal habeas, absent a showing of cause and prejudice or actual innocence.’”

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Ellis v. Armenakis, 222 F.3d 627, 632 (9th Cir. 2000) (quoting Wells v. Maass, 28 F.3d

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1005, 1008 (9th Cir. 1994) (omission in original). As the R&R notes, “Begay fails to

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establish cause for or prejudice arising from his procedural default of his claim that he was

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denied the effective assistance of appellate counsel, and he does not assert his actual,

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factual innocence of the crime of conviction.” (Doc. 17 at 14).

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With respect to Begay’s second claim – that his liberty was infringed when he was

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allegedly denied counsel while having his blood drawn – the R&R notes “Begay failed to

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properly exhaust this claim in the state courts by fairly presenting a claim that his federal

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constitutional right to counsel was violated.” (Doc. 17 at 17). Cf. Duncan v. Henry, 513

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U.S. 364, 366 (1995) (per curiam) (“If a habeas petitioner wishes to claim that an

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evidentiary ruling at a state trial court denied him the due process of law guaranteed by the

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Fourteenth Amendment, he must say so, not only in federal court, but in state court.”). The

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record suggests that Begay may have exhausted his right to counsel claim by raising it

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before the Court of Appeals in a supplemental brief. (Doc. 13-1 at 90). Even assuming

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that is true, the claim fails on the merits.

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The Sixth Amendment of the United States Constitution and Article 2 Section 24,

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of the Arizona Constitution guarantee a defendant the right to counsel. U.S. CONST. amend

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VI, A.R.S. Const. Art. 2 § 24. The Due Process Clauses of the United States and Arizona

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constitutions also contain right to counsel components. See Turner v. Rogers, 564 U.S.

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431, 446 (2011); State v. Transon, 186 Ariz. 482, 489 (Ariz. Ct. App. 1996). The Court of

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Appeals of Arizona has held the right to counsel was denied when a defendant was given

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a phonebook with the attorney pages ripped out. State v. Penney, 229 Ariz. 32, 35-36 (Ariz.

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Ct. App. 2012). Begay, however, has not alleged that some aspect of the phonebook or

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phone he was provided prevented him from contacting an attorney. Indeed, the state courts

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found that Begay was provided adequate opportunity to contact counsel while in the DUI

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van. See Begay, 2019 WL 3178782, at *2; (Doc. 13-1 at 193). The Supreme Court has

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held that, on collateral review, “[f]actual determinations are presumed correct absent clear

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and convincing evidence to the contrary, and a decision adjudicated on the merits in a state

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court and based on a factual determination will not be overturned on factual grounds unless

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objectively unreasonable in light of the evidence in the state-court proceeding.” Miller-El

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v. Cockrell, 537 U.S. 322, 340 (2003) (citing 28 U.S.C. § 2254(d)(2), (e)(1)). Begay has

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made no such showing here. Thus, assuming this claim was exhausted, it fails on the

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merits.

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In Begay’s final habeas claim, he alleges the arresting officer committed perjury by

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testifying that Begay was given the opportunity to consult with counsel prior to having his

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blood drawn. (Doc. 17 at 23). As the R&R notes, “Begay failed to properly exhaust this

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claim in the state courts, by alleging that the officer’s alleged false statements at the

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evidentiary hearing violated his federal constitutional right to due process of law.” (Doc.

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17 at 25). Cf. Duncan, 513 U.S. at 366. To exhaust this claim, Begay would have needed

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to have raised it on direct appeal or, possibly, through a Rule 32 action. He did neither.

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Even if the claim were not exhausted, he has not offered clear and convincing evidence

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demonstrating why the findings of the state courts to the contrary should be set aside. See

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Miller-El, 537 U.S. at 340. The trial court “f[ound] no suggestion whatsoever that this

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officer has lied on the stand.” (Doc. 13-1 at 194). This Court will not overturn the findings

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of a jury – which “by its verdict, found the officers’ testimony credible and found Begay’s

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testimony not credible” (Doc. 17 at 26) – absent some evidence of perjury.
Begay’s April 2021 motion

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II.

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In April 2021, Begay filed a “Motion for: exhaustion of state remedies. exhaustion

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of the legal bases of the claim. exhaustion of the factual bases of the claim.” (Doc. 15).

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As the R&R notes, in the motion “Begay discusses the merits of his second and third habeas

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claims, and then states: ‘In the interest of justice and fundamental fairness the petitioner

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humbly beseech[es] the United States federal court for the district of Arizona to grant a

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stay and abeyance.’” (Doc. 17 at 13).

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Petitioner appears to be requesting the present proceedings be stayed so that he can

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return to state court and exhaust any available remedies. The Supreme Court has held,

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“stay and abeyance should be available only in limited circumstances.” Rhines v. Weber,

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544 U.S. 269, 277 (2005).

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dismissing a petition, “if the petitioner had good cause for his failure to exhaust, his

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unexhausted claims are potentially meritorious, and there is no indication that the petitioner

District courts are instructed to grant a stay, rather than

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is engaged in intentionally dilatory litigation tactics.” Id. at 278. Although there is no

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indication Begay is engaged in dilatory tactics, he has failed to establish good cause for his

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procedural defaults. Moreover, for the reasons summarized above, and discussed at length

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in the R&R, Begay’s claims are not potentially meritorious. Therefore, a stay is not

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merited.

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III.

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In June 2021, Begay filed a motion, (Doc. 16), to amend his petition for writ of

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Begay’s June 2021 motion

habeas corpus. (Doc. 1). In the motion, Begay restates several of the arguments discussed

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above and acknowledges he “is time-barred to file a post-conviction relief [petition] and

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he may be foreclosed from raising a new claim in [a] subsequent petition.” (Doc. 16 at 4).

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Begay asks to amend his habeas petition to argue the prosecution failed to
adequately prove the prior DUI convictions that aggravated the DUI conviction he seeks
relief from. (Doc. 16 at 15-17). In his words, “the state . . . evaded [In re] Winship’s
requirements that the state must prove beyond a reasonable doubt the existence of 28-692
and 28-694 [the two prior DUI convictions] to aggravate the committed misdemeanor
offense 28-1381(A)(1) to become a class four felony A.R.S. 28-1383(A)(1).” (Doc. 16 at
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Begay correctly notes Rule 15 of the Federal Rules of Civil Procedure give district

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courts broad authority to permit amendments to pleadings. (Doc. 16 at 2). However, even

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if the Court permits Begay to amend his petition to state this new claim, and relates the

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amendment back to the initial petition, Begay defaulted the claim in the June motion by

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not raising it before the state courts. Moreover, at the trial on the priors, the judge found

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“overwhelming evidence” of the prior convictions that served as the aggravating factors,

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(Doc. 13-1 at 644), based on certified copies from the Arizona and New Mexico

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Departments of Corrections admitted into the record, (Doc. 13-1 at 639-40). It would be

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futile to allow the amendment Begay seeks.

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Accordingly,

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IT IS ORDERED the Report and Recommendation (Doc. 17) is ADOPTED. The
Petition for Writ of Habeas Corpus (Doc. 1) is DISMISSED WITH PREJUDICE.

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IT IS FURTHER ORDERED Petitioner’s “Motion for: exhaustion of state

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remedies. exhaustion of the legal bases of the claim. exhaustion of the factual bases of the

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claim.” (Doc. 15) is DENIED.

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IT IS FURTHER ORDERED Petitioner’s motion to amend the petition for habeas
corpus (Doc. 16) is DENIED.
IT IS FURTHER ORDERED a Certificate of Appealability is DENIED because
dismissal of the petition is justified by a procedural bar and because Petitioner has not made
a substantial showing of the denial of a constitutional right. Jurists of reason would not
find the procedural or constitutional rulings debatable.
IT IS FURTHER ORDERED the Court shall enter judgement in favor of the

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Respondent. The Clerk of Court shall close this case.
Dated this 27th day of October, 2021.

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Honorable Roslyn O. Silver
Senior United States District Judge

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