Eden #246262 v. Ryan et al
Filing
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ORDER ADOPTING REPORT AND RECOMMENDATION, Magistrate Judge Metcalf's Report and Recommendation 34 is accepted; Petitioner's Petition for Writ of Habeas Corpus 1 is denied; a Certificate of Appealability is denied; the Clerk is directed to terminate this action. Signed by Judge David G Campbell on 3/11/16. (REW)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Jace F. Eden,
No. CV-15-08020-PCT-DGC
Petitioner,
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v.
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ORDER
Charles L. Ryan, et al.,
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Respondents.
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Petitioner Jace Eden filed a Petition for Writ of Habeas Corpus pursuant to 28
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U.S.C. § 2254. Doc. 1. On January 12, 2016, Magistrate Judge Metcalf issued a 65-page
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Report and Recommendation (“R&R”) that the Petition be dismissed with prejudice.
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Doc. 34 at 64. Petitioner objected to the R&R. Doc. 37. The Court will deny the
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objections and accept Judge Metcalf’s recommendations in full.
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I.
Background.
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Petitioner seeks habeas relief from a sentence imposed by the Navajo County
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Superior Court on April 5, 2012. That sentence is based on the revocation of probation in
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two cases: (1) a 2007 aggravated driving under the influence (“DUI”) conviction; and
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(2) a 2009 stalking conviction. It is also based on two new convictions: (1) a 2009
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aggravated DUI; and (2) a 2011 sexual abuse. Petitioner entered into a consolidated plea
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agreement and received an effective sentence of 5.75 years.
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1
A.
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Petitioner was indicted twice for events occurring on or about June 7, 2007.
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Doc. 26-1 at 13 (CR2007-01075), 18-19 (CR2009-00017). The first indictment included
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one count for aggravated DUI on a suspended license. Id. at 13. The second indictment
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included two counts: (1) aggravated DUI as a third DUI offense within 84 months; and
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(2) aggravated DUI with a blood alcohol content of 0.08 percent or more as a third DUI
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offense within 84 months. Id. at 18. The cases were subsequently consolidated for
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purposes of trial under Rule 13.3 of the Arizona Rules of Criminal Procedure. Id. at 27.
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Petitioner was represented in this consolidated matter by attorney Kate Roberts. Id. at 15.
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After a two-day trial, the jury returned the following verdict: (1) not guilty as to
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count one, aggravated DUI with a suspended license; (2) guilty of the lesser-included
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offense of count one of driving while impaired to the slightest degree; (3) guilty as to
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count two, aggravated DUI as a third DUI offense within 84 months; and (4) guilty as to
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count three, aggravated DUI with a blood alcohol content of 0.08 percent or more as a
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third DUI offense within 84 months. Docs. 26-1 at 135; 26-2 at 58-65. On August 27,
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2009, Petitioner was sentenced to four months of incarceration with credit for one day
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already served, and four years of probation, to run concurrently. Doc. 26-2 at 69-70, 95.
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2007 DUI, CR2007-01075 and CR2009-00017.
Petitioner challenged his conviction on direct appeal. Petitioner was represented
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during the appeal by attorney Benjamin Brewer.
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arguments: (1) the trial court erred in denying his request for sanctions based on the
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State’s untimely disclosure of the traffic stop and DUI investigation recording; (2) he was
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denied due process by the recording’s untimely disclosure; (3) he was denied the right to
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cross-examine and confront witnesses with the recording; and (4) the trial court erred in
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denying his request to stay his imprisonment pending appeal. Id. at 98. The Court of
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Appeals rejected each argument. Id. at 111. The court vacated, sua sponte, Petitioner’s
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conviction of the lesser-included offense of count one, driving while impaired to the
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slightest degree, because it was also a lesser-included offense of the aggravated DUI as a
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third DUI offense within 84 months charge, of which he was convicted. Id. at 111-13.
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Id. at 97.
Petitioner raised four
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The court found that this duplicate conviction violated Petitioner’s double jeopardy
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rights. Id. at 113.
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Petitioner filed a petition for review with the Arizona Supreme Court. Id. at 116-
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25. Petitioner sought review only on the trial court’s failure to grant a continuance as a
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sanction for the State’s untimely disclosure of the recording. Id. at 117. On August 1,
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2011, the Arizona Supreme Court denied the petition for review. Id. at 127-28.
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B.
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Petitioner was indicted for events that occurred between February 2007 and April
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2009. The indictment contained counts of stalking and influencing a witness. Id. at 156-
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57. Petitioner was represented by attorney Kate Roberts. Id. at 186. After a two-day
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bench trial, the court entered a verdict of: (1) guilty as to the stalking count; and (2) not
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guilty of influencing a witness. Id. at 192. On July 9, 2010, Petitioner was sentenced to
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two days incarceration with credit for two days already served, and three years of
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probation, to run concurrently with his probation term from the 2007 DUI. Id. at 221-22.
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Petitioner did not appeal the conviction or sentence. Doc. 34 at 6.
2009 Stalking, CR2009-00700.
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C.
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Petitioner was indicted for events occurring on August 16, 2009. The indictment
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contained two counts: (1) aggravated DUI as a third DUI offense within 84 months; and
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(2) aggravated DUI with a blood alcohol content of 0.08 percent or more as a third DUI
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offense within 84 months.
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amended to allege Petitioner’s prior felony convictions and his probationer status as of
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August 16, 2009. Id. at 24-26. Petitioner was represented by attorney Benjamin Brewer
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until May 25, 2011, at which point attorneys Ronald Wood and Dirk LeGate appeared on
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his behalf. Docs. 26-3 at 28; 26-4 at 23.
2009 DUI, CR2009-00960.
Doc. 26-3 at 12-13.
The indictment was subsequently
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D.
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Petitioner was indicted for events occurring on or about May 13, 2011. The
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indictment was for sexual assault. Doc. 26-4 at 166. The indictment was subsequently
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amended to allege Petitioner’s prior felony convictions and his probationary status as of
2011 Sexual Abuse, CR2011-00340.
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May 13, 2011. Id. at 182-84. Petitioner was represented attorneys Ronald Wood and
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Dirk LeGate. Doc. 26-4 at 23.
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E.
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On September 1, 2011, Petitioner entered into a consolidated plea agreement
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covering the 2009 DUI charge, the 2011 sexual abuse charge, and the probation
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violations related to the 2007 DUI conviction and the 2009 stalking conviction. Doc. 26-
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4 at 154-56; see also Doc. 26-5 at 32-37. Petitioner was represented during the change of
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plea hearing by attorney Dirk LeGate. Doc. 26-4 at 154.
Consolidated Plea Agreement.
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On December 13, 2011, Petitioner was not present for sentencing and the court
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issued a warrant for his arrest. Doc. 26-5 at 39. Attorneys Wood and LeGate were
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permitted to withdraw from representation. Id. at 41-42.
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On December 28, 2011, Petitioner made an initial appearance on his bench
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warrant. Id. at 44. The court appointed attorney Sam Roser to represent Petitioner during
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sentencing, which occurred on April 5, 2012. Id. at 46-47, 70-73. Petitioner was
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sentenced to 5 years’ imprisonment for the sexual abuse charge and 4.5 years for the
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aggravated DUI charge, to run concurrently. Id. at 71-72. Petitioner also received
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additional a concurrent sentence for violation of his probation from the 2007 DUI
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conviction. Id. at 73-74. Because Petitioner violated the terms of his probation for the
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2009 stalking charge, he received an additional 0.75 year sentence to run consecutively to
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the other sentences. Id. at 75. Petitioner therefore received an effective sentence of 5.75
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years, less time served, for the 2009 DUI conviction, the 2011 sexual abuse conviction,
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and violation of probation for the 2007 DUI conviction and the 2009 stalking conviction.
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Petitioner did not appeal. Id. at 79.
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F.
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On May 25, 2012, Petitioner filed a pro se notice of post-conviction relief in the
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Navajo County Superior Court. Id. at 79-80. Attorney Brett Rigg subsequently appeared
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to represent Petitioner. Id. at 82. Rigg filed a notice of no colorable issues in the
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Superior Court and sought withdrawal, which the court granted. Id. at 85-86, 88.
Subsequent Proceedings.
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On June 3, 2013, Petitioner filed a pro se petition for post-conviction relief. Id. at
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91-122. His Rule 32 petition focused on alleged failings of his prior counsel, including
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attorneys Brewer, Wood, Roser, and Rigg. Id. at 92. The petition also alleged various
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forms of misconduct involving prosecutors and judges.
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dismissed Petitioner’s Rule 32 petition. Doc. 26-6 at 99-114.
Id. at 100-03.
The court
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Petitioner filed several motions related to his Rule 32 petition, each of which was
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denied. First, Petitioner sought an injunction to obtain DNA testing in connection with
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the 2011 sexual abuse charge. Id. at 19. The court denied his request, finding that
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Petitioner had not provided a reasonable probability he would not have been convicted or
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would have obtained a more favorable sentence had DNA testing been conducted. Id. at
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59-60. Second, Petitioner sought court records and transcripts as part of his Rule 32
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proceedings. Id. at 2-4. The court ordered that he receive two transcripts, but not a
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January 21, 2011 transcript. Id. at 6. Third, Petitioner filed a request for discovery and
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an evidentiary hearing (id. at 62-65), which was denied (Doc. 27-5 at 79). Fourth,
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Petitioner filed a motion for judgment by default because the State had failed to timely
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respond (Doc. 26-6 at 79-81, 86-90, 92-94), which was denied (id. at 83, 96). Fifth,
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Petitioner filed a motion for leave to amend his Rule 32 petition (Doc. 26-7 at 14-19),
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which was also denied (id. at 69).
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Petitioner filed a special action to appeal the dismissal of his petition for post-
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conviction relief. Docs. 26-7 at 71-73; 26-8 at 2-32. The Arizona Court of Appeals
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declined to exercise special action jurisdiction. Doc. 26-9 at 122-23.
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II.
Legal Standard.
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A party may file specific, written objections to an R&R within fourteen days of
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being served with a copy of it. Rules Governing Section 2254 Cases 8(b) (“Section 2254
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Rules”); see also Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). The Court must
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undertake a de novo review of those portions of the R&R to which specific objections are
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made. Id.; Thomas v. Arn, 474 U.S. 140, 149 (1985); United States v. Reyna-Tapia, 328
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F.3d 1114, 1121 (9th Cir. 2003). The Court may accept, reject, or modify, in whole or in
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part, the findings or recommendations made by the magistrate judge. Section 2254 Rules
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8(b); see also Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1)(C).
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III.
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Analysis.
Petitioner objected to Judge Metcalf’s R&R on 17 different grounds. The Court
will refer to the objections using Petitioner’s numbers. See Doc. 37.
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A.
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Grounds One and Two are closely related. In Ground One, Petitioner asserts that
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Judge Metcalf erred in concluding that two of Petitioner’s filings were untimely: his
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April 10, 2014 notice of appeal (Doc. 26-7 at 71-73) and his July 23, 2014 petition for
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review of the dismissal of his petition for post-conviction review (Doc. 37-4 at 17-35).
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See Doc. 37 at 1, 17. Petitioner argues that because he had requests for transcripts
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pending, the time within which he could file his petition for post-conviction review was
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tolled under A.R.S. § 13-4234(H) and Ariz. R. Crim. P. 32.4(d).
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Petitioner asserts that the time between the filing of his notice, May 25, 2012 (see
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Doc. 37-1 at 7), and the date on which he received his last records, April 1, 2014 (see id.
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at 9), was tolled. Doc. 37 at 17. In Ground Two, Petitioner asserts that a miscarriage of
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justice occurred as a result of having to file his petition for post-conviction review before
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receiving the outstanding transcript. Id. at 2-3.
Grounds One and Two.
Doc. 37 at 17.
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Both grounds lack merit. The Ninth Circuit “has specifically stated that federal
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habeas relief is not available to redress alleged procedural errors in state post-conviction
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proceedings.” Ortiz v. Stewart, 149 F.3d 923, 939 (9th Cir. 1998) (citations omitted)
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(finding state court judge’s violation of Ariz. R. Crim. P. 32.4(c) during post-conviction
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proceedings inappropriate for federal habeas relief). Even if Petitioner’s allegations that
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the trial court violated A.R.S. § 13-4234(H) and Ariz. R. Crim. P. 32.4(d) are true, this
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Court may not correct these errors on habeas review. Moreover, Petitioner has not
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asserted any specific harm or prejudice that resulted from being denied the transcripts.
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The Court concludes that Petitioner’s filings were untimely, and any claims contained
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within the petition for post-conviction review are procedurally barred.
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B.
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Petitioner objects to Judge Metcalf’s conclusion that claims raised for the first
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time in a petition for review before the Arizona Supreme Court were not fairly presented.
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Docs. 34 at 27; 37 at 4. The Ninth Circuit has “held that to exhaust a habeas claim, a
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petitioner must properly raise it on every level of direct review.” Casey v. Moore, 386
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F.3d 896, 916 (9th Cir. 2004) (citation omitted). Raising “federal constitutional claims
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for the first and only time to the state’s highest court on discretionary review” is not fair
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presentation. Id. at 918. Petitioner did not file a direct appeal of his convictions or
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sentences for the 2009 stalking charge, the 2009 DUI charge, or the 2011 sexual abuse
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charge. Docs. 26-5 at 79; 34 at 6. As a result, no claims arising from these proceedings
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could be fairly presented in a petition for review to the Arizona Supreme Court.
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Petitioner did file a direct appeal of his conviction and sentence for his 2007 DUI. See
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Doc. 26-2 at 97. The Court carefully compared the four claims raised in Petitioner’s
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direct appeal (id. at 98) with the claims raised in his petition for review (see Doc. 27-3 at
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46-62), and finds that the claims raised in his petition for review were not raised on direct
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review. The Court therefore finds that Petitioner’s claims were not fairly presented in his
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petition for review to the Arizona Supreme Court.
Ground Three.
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C.
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Petitioner objects to Judge Metcalf’s conclusion that Petitioner’s double jeopardy
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claims in his special action to the Arizona Court of Appeals were not fairly presented
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because a special action is a discretionary proceeding. Docs. 34 at 33-34; 37 at 5.
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Petitioner insists that his double jeopardy claims were fairly presented simply because
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they were presented to the Court of Appeals in a special action. Doc. 37 at 5. Because
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Petitioner fails to account for the unique characteristics of an interlocutory appeal in the
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double jeopardy context, the Court agrees with Judge Metcalf.
Ground Four.
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A claim raised for the first time in a discretionary proceeding, such as a special
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action, is not fairly presented for purposes of habeas review. See Roettgen v. Copeland,
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33 F.3d 36, 38 (9th Cir. 1994) (citing Castille v. Peoples, 489 U.S. 346, 351 (1989)). A
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double jeopardy claim, however, is fairly presented in a special action if it is used to
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obtain interlocutory1 appellate review of the claim. See State v. Moody, 94 P.3d 1119,
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1133, ¶ 22 (Ariz. 2004) (citation omitted). “The reasons underlying the preference for
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special action review of denials of motions to dismiss based on double jeopardy are
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obvious: Because the Double Jeopardy Clause guarantees the right to be free from
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subsequent prosecution, the clause is violated by the mere commencement of retrial.” Id.
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(citing Abney v. United States, 431 U.S. 651, 660-61 (1977)). Petitioner raised a variety
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of double jeopardy claims in his special action proceedings (see Doc. 26-8 at 26), but not
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as interlocutory appellate review. He brought those proceeding after the trial court’s final
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ruling on the entire case. Petitioner’s double jeopardy claims were not fairly presented
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for purposes of habeas corpus review.
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D.
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Petitioner asserts that Judge Metcalf wrongly concluded that five claims for
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ineffective assistance of counsel were not raised in his petition for post-conviction
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review. Docs. 34 at 45; 37 at 6. The five claims are as follows: (1) in the 2007 DUI,
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Roberts failed to raise the double jeopardy violation regarding the lesser included
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offense; (2) in the 2007 DUI, Brewer failed to file charges of false imprisonment based
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on the double jeopardy violation; (3) in the 2009 DUI and 2011 sexual abuse charge,
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Roser failed to compare the presentence report with the plea agreement and failed to
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object to the use of the additional charges in the 2007 DUI as a sentence enhancement;
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(4) in the 2009 DUI and 2011 sexual abuse charge, Roser failed to correct sentencing
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errors in the plea agreement admitting the probation violations; and (5) in the 2009 DUI
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and 2011 sexual abuse charge, Roser failed to ensure the sentencing minute entry
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reflected the vacatur of his misdemeanor conviction in the 2007 DUI. Doc. 34 at 45.
Ground Five.
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Claims presented for the first time in a petition for review of the denial of a
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petition for post-conviction review are unexhausted. See Ariz. R. Crim. P. 32.9(c); see
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An interlocutory appeal is “[a]n appeal that occurs before the trial court’s final
ruling on the entire case.” Black’s Law Dictionary (10th ed. 2014).
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also State v. Vera, 334 P.3d 754, 756-57, ¶ 8 (Ariz. Ct. App. 2014). Petitioner contends
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that the first claim was raised in his petition for post-conviction review. See Doc. 37 at 6.
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The Court disagrees.
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discussing actions taken by Brewer, not Roberts. Doc. 26-5 at 93. The paragraph begins
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by referring to Brewer, not Roberts. Id. Roberts is not mentioned anywhere in that
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paragraph. Id. This ineffective assistance of counsel argument is clearly directed at
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Brewer, not Roberts. The four other claims are similarly not contained in the petition for
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post-conviction relief.
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assistance of counsel in his petition for post-conviction relief.
The cited portion of the petition for post-conviction relief is
Petitioner failed to present these five claims for ineffective
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E.
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Petitioner objects to Judge Metcalf’s statement that Petitioner’s counsel may have
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made “strategic choices” in declining to pursue certain claims. Doc. 37 at 6. Petitioner’s
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objection is directed solely towards Judge Metcalf’s formulation of the legal standard.
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He does not object, in Ground Six, to Judge Metcalf’s application of the legal standard.
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A party wishing to object to magistrate judge’s report and recommendation must file
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specific written objections. Fed. R. Civ. P. 72(b)(2) (“Within 14 days after being served
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with a copy of the recommended disposition, a party may serve and file specific written
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objections to the proposed findings and recommendations.”) (emphasis added).
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Petitioner has failed to do so in this case.
Ground Six.
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F.
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Petitioner objects to Judge Metcalf’s conclusion that “because, at the time
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Petitioner’s [post-conviction relief] proceeding he had already fully served the sentence
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on the lesser included offense, any challenge by [post-conviction relief] counsel would
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have been futile.” Docs. 34 at 48; 37 at 7. Petitioner asserts that had his counsel raised
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the double jeopardy issue, it would have “invalidated the indictment,” which means that
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his subsequent convictions would not have resulted in probation violations and his 2007
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DUI would not have been counted as a prior felony. Doc. 37 at 7. The Court does not
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agree. Petitioner has not provided, nor has the Court found, authority for the proposition
Ground Seven.
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that a double jeopardy violation vacates both the lesser included offense and the greater
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conviction. The greater conviction in the 2007 DUI would still count as a prior felony
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and the subsequent convictions remain probation violations.
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concluded, because “the additional sentence was already served” and the greater offense
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from the 2007 DUI conviction stands, “any attack based on such sentence was moot.”
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Doc. 34 at 48.
As Judge Metcalf
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G.
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Judge Metcalf concluded that Petitioner could have earlier raised his ineffective
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assistance of counsel claims against attorney Roberts for her failure to raise the double
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jeopardy issue in connection with his 2007 DUI conviction. Doc. 34 at 47-48. Petitioner
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objects, arguing that his petition for post-conviction relief in 2012 was his first
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opportunity to raise this issue in the state courts. Doc. 37 at 9. The Court does not agree.
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First, even if it is true, Petitioner’s allegation that “the trial court dropped the ball and
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never provided counsel” after he filed a notice of post-conviction relief does not entitle
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him to federal habeas relief.
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specifically stated that federal habeas relief is not available to redress alleged procedural
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errors in state post-conviction proceedings.”) (citations omitted). Second, as discussed
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above, there can no continuing prejudice stemming from this ineffective assistance of
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counsel claim because the Court of Appeals vacated the conviction and Petitioner already
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served the additional sentence.
Ground Eight.
See Ortiz, 149 F.3d at 939 (The Ninth Circuit “has
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H.
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Petitioner argues that attorney Roser’s failure to correct sentencing errors in the
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consolidated plea agreement constituted ineffective assistance of counsel. Docs. 34 at
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50-54; 37 at 10. The sentencing error that Petitioner complains of is that the plea
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agreement lists the violations of the terms of his probation for CR2007-01075, and not
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for CR2009-00017. Doc. 37 at 10. Petitioner contends that he was prejudiced because he
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was not permitted to rescind the plea agreement at the sentencing hearing and proceed to
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trial on the charges. Id. The Court has closely reviewed the transcript of the April 5,
Ground Nine.
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2012 sentencing hearing. See Doc. 26-5 at 46-68. There is no truth to the assertion that
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Petitioner requested, and was denied the ability, to rescind the plea agreement during the
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sentencing hearing. The Court agrees with Judge Metcalf’s conclusions that “it is clear
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that the parties utilized interchangeably the case numbers from the consolidated cases
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(CR2007-1075 and CR2009-0017) on the 2007 DUI,” and that “Petitioner was admitting
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a violation of probation in the 2007 DUI and agreeing to be sentenced to a presumptive
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prison term for that violation.” Doc. 34 at 53. Again, Judge Metcalf correctly concluded
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that “Petitioner ultimately received what he bargained for: a presumptive prison term on
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the aggravated DUI probation violation.” Id.
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I.
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Petitioner argues that Judge Metcalf erred by finding that his claim of actual
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innocence was based on speculation that DNA testing could prove his innocence.
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Docs. 34 at 58-60; 37 at 11-12. Petitioner asserts that DNA testing could prove his actual
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innocence with respect to the DUI charge (Ground Ten) and the 2011 sexual abuse
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charge (Ground Eleven), and that it was error to deny him an evidentiary hearing
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(Ground Twelve). The Court again disagrees.
Grounds Ten, Eleven, and Twelve.
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In Ground Ten, Petitioner asserts that the “State admitted that the blood test was
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performed outside the statutory window of 2 [hours], see A.R.S. [§] 28-1381(A)(2),
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which procedurally barred the State from using it as evidence.” Doc. 37 at 11 (emphasis
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added).
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appears to be incorrect. See State v. Stanley, 172 P.3d 848, 853, ¶ 24 (Ariz. Ct. App.
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2007) (“To avoid additional evidentiary hurdles, the police typically need to have the
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blood sample drawn within two hours of the arrest.”) (citing A.R.S. § 28-1381(A)(2)
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(emphasis added)).
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broaden his claim by asserting additional operative facts not presented to the state courts.
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Brown v. Easter, 68 F.3d 1209, 1212 (9th Cir. 1995). Petitioner’s arguments involving
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DNA testing have all been directed at the sexual abuse case, not the DUI cases. See, e.g.,
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Docs. 26-5 at 96-97; 26-6 at 19-20, 22-57; 26-8 at 25. Petitioner’s petition for a writ of
As an initial matter, Petitioner’s interpretation of A.R.S. § 28-1381(A)(2)
More fundamentally, however, Petitioner seeks to improperly
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habeas corpus does not even address DNA testing in connection with Petitioner’s DUIs.
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See Doc. 1 at 21. The Court therefore rejects Petitioner’s Ground Ten.
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In Ground Eleven, Petitioner contends that Judge Metcalf erred by rejecting
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Petitioner’s assertion that DNA testing in the sexual abuse case could prove his actual
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innocence. Docs. 34 at 58-60; 37 at 12. Petitioner asserts that if he had “used his mouth,
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penis, and/or fingers then the alleged victim[’s] DNA would [have] been transferred onto
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the Petitioner.” Doc. 37 at 12. But Petitioner does not establish how this could exculpate
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him from the sexual abuse. As Judge Metcalf correctly notes, “[t]his case is not an
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ordinary case of mistaken identification of a stranger as a rapist.” Doc. 34 at 59. There is
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ample incriminating evidence, even without inculpatory DNA evidence. The victim
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knew the Petitioner, she immediately identified him as the assailant, police officers found
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Petitioner in the area where the victim was assaulted, and Petitioner was extremely
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intoxicated. Id. Petitioner has failed to establish that DNA testing would show actual
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innocence. United States v. Watson, 792 F.3d 1174, 1180 (9th Cir. 2015) (“Where the
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presence or absence of the movant’s DNA would not show actual innocence, there is no
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reason to test for it.”); Dist. Attorney’s Office for Third Judicial Dist. v. Osborne, 557
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U.S. 52, 62 (2009) (“DNA testing alone does not always resolve a case. Where there is
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enough other incriminating evidence and an explanation for the DNA result, science
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alone cannot prove a prisoner innocent.”). The Court therefore rejects Ground Eleven.
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In Ground Twelve, Petitioner seeks an evidentiary hearing “because the lack of
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DNA transfer will prove the innocence of the Petitioner” in the sexual abuse case.
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Doc. 37 at 12. The decision of whether to hold an evidentiary hearing is soundly within
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the discretion of the district court. Campbell v. Blodgett, 982 F.2d 1356, 1358 (9th Cir.
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1993) (citation omitted). A petitioner may be entitled to additional discovery if good
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cause has been shown. Section 2254 Rules 6(a). As discussed above, Petitioner has
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failed to establish good cause for conducting DNA testing. Moreover, the question of
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whether the prosecutor complied with ER 3.8(g) and (h) of the Arizona Rules of
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Professional Conduct is not an appropriate issue for habeas review. See 28 U.S.C.
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§ 2254(a); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“Today, we reemphasize that it
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is not the province of a federal habeas court to reexamine state-court determinations on
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state-law questions. In conducting habeas review, a federal court is limited to deciding
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whether a conviction violated the Constitution, laws, or treaties of the United States.”)
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(citations omitted). The Court therefore rejects Ground Twelve.
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J.
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Judge Metcalf concluded that because “all of Petitioner’s claims are procedurally
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defaulted, discovery is only appropriate as necessary to establish cause and prejudice or
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Petitioner’s actual innocence.” Doc. 34 at 61. Petitioner objects to Judge Metcalf’s
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conclusion that he should not be granted an evidentiary hearing because he has failed to
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establish cause and prejudice or actual innocence with respect to the Wood and Brewer
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interviews or the Roberts deposition. Doc. 37 at 13. The Court agrees with Judge
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Metcalf. Petitioner fails to explain how the interviews or the Roberts deposition could
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establish his actual innocence. The fact that he talked about legal strategy with his
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lawyers would not establish Petitioner’s actual innocence. In addition, Petitioner also
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alleges violations of A.R.S. § 13-4238(A) and Ariz. R. Crim. P. 32.8(a), which provide
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for evidentiary hearings during post-conviction proceedings in certain circumstances.
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Neither A.R.S. § 13-4238(A) nor Ariz. R. Crim. P. 32.8(a), however, provides an
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appropriate basis for federal habeas relief. See Ortiz, 149 F.3d at 939 (The Ninth Circuit
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“has specifically stated that federal habeas relief is not available to redress alleged
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procedural errors in state post-conviction proceedings.”) (citations omitted). The Court
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rejects Ground Thirteen.
Ground Thirteen.
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K.
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Petitioner objects to Judge Metcalf’s conclusion that Petitioner has failed to
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establish how the complete booking video of his arrest for the 2007 DUI would establish
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his actual innocence. Docs. 34 at 61; 37 at 14. Petitioner argues that the lack of the
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complete booking video constitutes “prosecutorial misconduct causing the trial court[’s]
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judgment to be voided.” Doc. 37 at 14. The Court disagrees. As Judge Metcalf correctly
Ground Fourteen.
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1
concluded, “[a]t most, Petitioner suggests that [the complete booking video] would
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reflect a falsification of the timing of the blood draw,” but he “fails to show that such
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falsification would establish his actual innocence.” Doc. 34 at 6. The Court therefore
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rejects Ground Fourteen.
5
L.
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Petitioner once again argues that his petition was not untimely, and therefore
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procedurally barred, based on the pending requests for transcripts. Doc. 37 at 15. This is
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merely a repackaging of Grounds One and Two. See supra Section III(A). For the
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reasons stated above, the Court rejects Ground Fifteen.
Ground Fifteen.
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M.
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In Ground Sixteen, Petitioner objects to Judge Metcalf’s statement that “any
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ineffectiveness of [post-conviction relief] counsel in failing to raise [five claims of
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ineffective assistance of counsel against trial and appellate counsel set forth above in
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Ground Five] could constitute cause under Martinez [v. Ryan, 132 S. Ct. 1309 (2012)].”
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Docs. 34 at 46; 37 at 16. In Ground Seventeen, Petitioner argues that the trial court’s
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correction of a sentencing error proved that attorney Rigg provided ineffective assistance.
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Docs. 34 at 10; 37 at 16. A party wishing to object to a magistrate judge’s report and
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recommendation must file specific written objections. Fed. R. Civ. P. 72(b)(2) (“Within
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14 days after being served with a copy of the recommended disposition, a party may
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serve
21
recommendations.”) (emphasis added). Petitioner fails to argue with any specificity that
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any of the five claims in Ground Sixteen constitute cause under Martinez. Nor does he
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specifically object to any portion of Judge Metcalf’s R&R in Ground Seventeen. The
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Court therefore rejects Grounds Sixteen and Seventeen.
and
Grounds Sixteen and Seventeen.
file
specific
written
objections
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to
the
proposed
findings
and
1
IT IS ORDERED:
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1.
Magistrate Judge Metcalf’s R&R (Doc. 34) is accepted, Petitioner’s
3
petition for writ of habeas corpus (Doc. 1) is denied, and a certificate of
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appealability is denied.
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2.
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Dated this 11th day of March, 2016.
The Clerk is directed to terminate this action.
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