Eden #246262 v. Ryan et al

Filing 38

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

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