Barker v. Ryan et al

Filing 23

ORDER DENYING and DISMISSING WITH PREJUDICE the petition for writ of habeas corpus (doc. 1 ). Because the dismissal of the petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable, IT IS FURTHER ORDERED DENYING a certificate of appealability and leave to proceed in forma pauperis on appeal. Signed by Senior Judge Frederick J Martone on 3/7/2013. (KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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William C. Barker,
Petitioner,

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vs.

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Charles L. Ryan, et al.,
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Respondents.
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No. CV 12-08063-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), respondents’ answer (doc. 15), and petitioner’s reply (doc. 18). We

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also have before us the report and recommendation of the United States Magistrate Judge

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(doc. 21), and petitioner’s objections (doc. 22).

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Petitioner was found guilty by a jury of resisting arrest in violation of A.R.S. § 132508 and was sentenced to a 3-year term of probation.

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The Magistrate Judge determined that petitioner’s habeas claim is procedurally

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defaulted and that petitioner has not established cause or prejudice, or a fundamental

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miscarriage of justice to overcome that default. The Magistrate Judge therefore recommends

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denying and dismissing the habeas petition with prejudice. We review de novo “any

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proposed finding or recommendation to which objection is made.” Rule 8(b), Rules

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Governing § 2254 Cases.

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

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of habeas corpus in federal court. 28 U.S.C. § 2254(b)(1)(A) & (c). A claim is procedurally

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defaulted if the petitioner failed to present his federal claims to the state court, but returning

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to state court would be futile because the state court’s procedural rules would bar

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consideration of the previously unraised claims. Teague v. Lane, 489 U.S. 288, 297-98

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(1989). A petitioner can overcome the procedural default if he can demonstrate cause and

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prejudice. Coleman v. Thompson, 501 U.S. 722, 732 (1991). To establish “cause,” a

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petitioner must show that “some objective factor external to the defense impeded [his] efforts

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to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986).

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In order to show “prejudice,” the petitioner must show “not merely that the errors at trial

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created a possibility of prejudice, but that they worked to his actual and substantial

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disadvantage, infecting his entire trial with error of constitutional dimensions.” United States

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v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original).

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Alternatively, a petitioner may overcome a procedural default if he can demonstrate

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that the failure to consider his claims on the merits will result in a “fundamental miscarriage

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of justice.” Schlup v. Delo, 513 U.S. 327 (1995). A fundamental miscarriage of justice

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occurs if the petitioner can show that a “constitutional violation has probably resulted in the

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conviction of one who is actually innocent.” Murray, 477 U.S. at 496. The petitioner must

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establish that it is “more likely than not that no reasonable juror would have found [him]

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guilty beyond a reasonable doubt.” Schlup, 513 U.S. at 327.

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Petitioner admits in his habeas petition that he did not petition the state court for post-

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conviction relief. (doc. 1 at 3). It is further undisputed that a return to state court would be

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futile under Arizona’s procedural rules. We agree with the Magistrate Judge that petitioner

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has demonstrated neither cause, prejudice, nor a fundamental miscarriage of justice to

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overcome his procedural default.

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Petitioner has shown no objective factor that impeded his ability to exhaust his state

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remedies. His challenges to counsel’s performance on appeal are unavailing because he did

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not raise a claim of ineffective assistance of counsel in state court. See Murray, 477 U.S. at
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489 (holding that a claim of ineffective assistance of counsel must be presented to the state

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court as an independent claim before it may be used to establish cause for a procedural

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default). Nor has petitioner shown that an error worked to his actual and substantial

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disadvantage, infecting the entire trial with constitutional error.

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We also agree with the Magistrate Judge that a review of the merits of petitioner’s

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claims is not necessary to avoid a fundamental miscarriage of justice. Although petitioner

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believes that “he was not under arrest, but only detained” during his altercation with the

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police officers, and therefore he could not have been guilty of “resisting arrest,” it is

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undisputed that the altercation occurred in the context of the officers attempting to handcuff

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petitioner. An arrest occurs when a person’s “freedom of movement is curtailed.” State v.

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Cole, 172 Ariz. 590, 591, 838 P.2d 1351, 1352 (Ct. App. 1992). During the altercation,

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petitioner “was grabbed, pushed over, wrestled with, and shot with a Taser by uniformed

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officers trying to handcuff him.” State v. Barker, 227 Ariz. 89, 91, 253 P.3d 286, 288 (Ct.

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App. 2011). Petitioner has not demonstrated that it is more likely than not that no reasonable

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juror would have found him guilty of resisting arrest under these circumstances.

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After de novo consideration of the issues, we accept the recommended decision of the
United States Magistrate Judge pursuant to Rule 8(b), Rules Governing § 2254 Cases.
IT IS ORDERED DENYING and DISMISSING WITH PREJUDICE the petition
for writ of habeas corpus (doc. 1).

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Because the dismissal of the petition is justified by a plain procedural bar and jurists

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of reason would not find the procedural ruling debatable, IT IS FURTHER ORDERED

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DENYING a certificate of appealability and leave to proceed in forma pauperis on appeal.

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DATED this 7th day of March, 2013.

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