Benally v. Ryan et al

Filing 20

ORDER, ACCEPTING the recommended disposition by the Magistrate Judge (doc. 18 ), and DENYING AND DISMISSING WITH PREJUDICE the petition and amended petition for writ of habeas corpus (docs. 1 , 6 ). IT IS FURTHER ORDERED DENYING a certificate of a ppealability and leave to proceed in forma pauperis on appeal because dismissal of the habeas petition is justified by a plain procedural bar and jurists of reason would not find the ruling debatable. Signed by Judge Frederick J Martone on 11/14/2012. (KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Dean Benally,
Petitioner,

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vs.

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Charles L. Ryan,
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Respondent.
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No. CV-11-8203-PCT-FJM
ORDER

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The court has before it petitioner’s petition for writ of habeas corpus pursuant to 28

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U.S.C. § 2254 (doc. 1), his amended petition (doc. 6), respondent’s response (doc. 16),

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petitioner’s reply (doc. 17), the report and recommendation of the United States Magistrate

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Judge (doc. 18), and petitioner’s objections (doc. 19).

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Pursuant to a plea agreement, petitioner pled guilty to one count of felony shoplifting

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and one count of sexual abuse. He was sentenced to consecutive terms of imprisonment for

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a total of 6.75 years. He now challenges that conviction and sentence, asserting 7 grounds

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for habeas relief: (1) the sentence imposed under A.R.S. § 13-604 violated his due process

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rights; (2) he received ineffective assistance of counsel due to counsel’s failure to sufficiently

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communicate with him; (3) he was subjected to double jeopardy and double punishment; (4)

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the sentencing statute should have been cited in the plea agreement; (5) the prosecutor did

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not inform the trial court that the plea was a “package deal” with his co-defendant; (6) his

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sentence was disproportionate in violation of the Eighth Amendment; and (7) A.R.S. § 13-

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703 is not cited in the plea agreement or commitment papers.

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The Magistrate Judge concluded that petitioner had not fairly presented any of his

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habeas claims to the state courts, and therefore no claim is properly exhausted. Because

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petitioner has no available remedy in the state courts for any of the unexhausted habeas

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claims, the Magistrate Judge also concluded that all claims are procedurally defaulted and

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precluded from federal review. Finally, the Magistrate Judge determined that petitioner has

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not shown cause for the procedural default or actual prejudice resulting from the alleged

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federal law violations, or actual innocence resulting in a fundamental miscarriage of justice.

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Following our de novo review, we agree with the Magistrate Judge’s conclusions and

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recommendation that the habeas petition should be denied and dismissed with prejudice.

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Although petitioner argues that he raised ineffective assistance claims “from the start

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of his Post Conviction Relief,” Objections at 2, the specific claim asserted in his habeas

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petition–that the public defender failed to sufficiently communicate with him, including

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failing to inform him that “intentionally and knowingly” are elements of the sex offense

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count–was raised for the first time in his motion for reconsideration of the trial court’s denial

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of his post-conviction petition. The trial court ruled that the new claims were not cognizable

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in a motion for reconsideration and denied the motion. In addition to not raising this claim

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in his original post-conviction petition, petitioner did not raise the claim in his petitions for

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review in the court of appeals and supreme court. Accordingly, this claim, as well as the

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other claims asserted in this petition, are unexhausted and procedurally defaulted.

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Federal review of the unexhausted, procedurally defaulted claims is barred unless

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petitioner demonstrates cause for the default, resulting in prejudice, or that failure to review

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the claim would result in a “fundamental miscarriage of justice.” Teague v. Lane, 489 U.S.

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288, 298, 109 S. Ct. 1060, 1068-69 (1989). To establish “cause,” a petitioner must

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demonstrate that some objective factor external to the defense impeded his efforts to comply

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with the state’s procedural rules. Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639,

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2645 (1986). To establish “prejudice,” a petitioner must show that the alleged constitutional
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violation “worked to his actual and substantial disadvantage, infecting his entire trial with

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error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170, 102 S. Ct.

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1584, 1596 (1982) (emphasis in original). Where the petitioner does not establish cause, the

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court need not reach the prejudice prong. A federal court may also review the merits of a

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procedurally defaulted claim if petitioner demonstrates that failure to consider the merits will

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result in a “fundamental miscarriage of justice.” Schlup v. Delo, 513 U.S. 298, 327, 115 S.

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Ct. 851, 867 (1995). A “fundamental miscarriage of justice” occurs when a constitutional

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violation has probably resulted in the conviction of one who is actually innocent. Id. The

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petitioner must establish that it is more likely than not that no reasonable juror would have

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found him guilty beyond a reasonable doubt in light of new evidence. Id.; 28 U.S.C. §

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2254(e)(2)(B).

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Petitioner does not attempt to show cause for his default. Nor has he demonstrated

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a fundamental miscarriage of justice. Therefore, federal review of petitioner’s claims is

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barred.

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IT IS ORDERED ACCEPTING the recommended disposition by the Magistrate

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Judge (doc. 18), and DENYING AND DISMISSING WITH PREJUDICE the petition and

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amended petition for writ of habeas corpus (docs. 1, 6).

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IT IS FURTHER ORDERED DENYING a certificate of appealability and leave

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to proceed in forma pauperis on appeal because dismissal of the habeas petition is justified

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by a plain procedural bar and jurists of reason would not find the ruling debatable.

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DATED this 14th day of November, 2012.

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