Castillo v. Ryan et al

Filing 14

REPORT AND RECOMMENDATIONS recommending that the District Court enter an order dismissing the 1 Petition for Writ of Habeas Corpus (State/2254) filed by Carlos Vega Castillo. Any party may serve and file written objections within14 days of being served with a copy of this report and recommendation. Signed by Magistrate Judge Leslie A Bowman on 1/30/2013. (BAR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Carlos Vega Castillo,

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Petitioner,

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vs.

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Charles L. Ryan; et al.,
Respondents.

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No. CIV 11-571-TUC-JGZ (LAB)
REPORT AND
RECOMMENDATION

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Pending before the court is a petition for Writ of Habeas Corpus pursuant to 28 U.S.C.

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§ 2254, filed on September 8, 2012, by Carlos Vega Castillo, an inmate confined in the Arizona

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State Prison Complex in Florence, Arizona. (Doc. 1) Castillo claims his original term of

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lifetime probation was not authorized by law and he received ineffective assistance of counsel.

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Id.

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Pursuant to the Rules of Practice of this Court, this matter was referred to Magistrate
Judge Bowman for report and recommendation.

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The Magistrate Judge recommends the District Court, after its independent review of the

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record, enter an order dismissing the petition. Castillo’s claims were defaulted in state court and

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are barred from habeas review.

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Summary of the Case

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Castillo pleaded guilty in Pima County Superior Court to two counts of second-degree

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molestation of a child pursuant to a plea agreement. (Doc. 9, p. 2); (Doc. 9-1, pp. 23-26) On

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April 27, 1998, the trial court sentenced Castillo to a 10-year term of imprisonment followed

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by lifetime probation. (Doc. 9, p. 2) Castillo did not file an “of right” post-conviction relief

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petition challenging his convictions or sentences. See ARIZ.R.CRIM.P. 32.1.

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Within a year of his release from prison, Castillo violated his lifetime probation. (Doc.

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9, pp. 2-3) The trial court revoked Castillo’s probation and sentenced him to a second 10-year

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term of imprisonment on February 7, 2008. (Doc. 9, p. 3); (Doc. 9-1, p. 39)

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On March 7, 2008, Castillo filed a notice of post-conviction relief. (Doc. 9, p. 3)

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Appointed counsel filed a petition raising ineffective assistance of probation revocation counsel.

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Id.

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On January 26, 2009, Castillo filed a motion asking the court to strike counsel’s petition

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because he wanted to proceed pro se. (Doc. 9-4, p. 2) The trial court granted Castillo’s motion,

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struck the petition, and gave him until April 13, 2009 to file his own petition pro se. (Doc. 9-4,

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p. 5) Three days after the deadline, on April 16, 2009, Castillo filed his pro se petition claiming

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numerous irregularities in his original conviction and claiming that a significant change in the

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law required relief. (Doc. 9, p. 3); (Doc. 9-4, p. 7); (Doc. 9-8, p. 12) On September 11, 2009,

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the trial court held that all Castillo’s claims were precluded as untimely except for the claim

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alleging a significant change in the law. (Doc. 9, p. 3) That latter claim was dismissed on the

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merits. Id. Castillo did not seek review of that ruling. (Doc. 9-8, p. 13)

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On February 11, 2010, Castillo filed a second notice of post-conviction relief and a

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petition claiming his original sentence of lifetime probation was not authorized by law, and he

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received ineffective assistance of counsel. Id.; (Doc. 9-6, pp. 17-18) The trial court found his

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claims precluded pursuant to ARIZ.R.CRIM.P. 32.2(a) either because they were previously raised

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in his first post-conviction relief petition or because they should have been raised earlier but

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were not. (Doc. 9, pp. 3-4); (Doc. 9-8, pp. 8, 13) Castillo filed a petition for review with the

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Arizona Court of Appeals, which granted review but denied relief. (Doc. 9-8, p. 11) Castillo’s

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petition for review with the Arizona Supreme Court was denied on February 24, 2011. (Doc.

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9-9)

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On September 8, 2011, Castillo filed the pending Petition for Writ of Habeas Corpus

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pursuant to 28 U.S.C. § 2254. He raises the same issues he presented in his second state petition

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for post-conviction relief: his original term of lifetime probation was not authorized by law, and

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he received ineffective assistance of counsel. (Doc. 1)

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In their answer, the respondents argue the claims are time-barred and procedurally

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defaulted. (Doc. 9) They argue in the alternative that some of Castillo’s claims are not

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addressable in federal habeas review. Id.

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Discussion

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The writ of habeas corpus affords relief to persons in state custody in violation of the

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Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a).
Federal review is limited to those issues that have been fully presented to the state court.
This so-called “exhaustion rule” reads in pertinent part as follows:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted unless it appears
that – (A) the applicant has exhausted the remedies available in the courts of the
State. . . .

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28 U.S.C. § 2254(b)(1)(A). This rule permits the states “the opportunity to pass upon and
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correct alleged violations of its prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365
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(1995) (internal punctuation removed).
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To be properly exhausted, the federal claim must be “fairly presented” to the state courts.
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Picard v. Connor, 404 U.S. 270, 275 (1971). In other words, the state courts must be apprised
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of the issue and given the first opportunity to rule on the merits. Id. at 275-76. Accordingly,
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the petitioner must “present the state courts with the same claim he urges upon the federal
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courts.” Id. “The state courts have been given a sufficient opportunity to hear an issue when
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the petitioner has presented the state court with the issue’s factual and legal basis.” Weaver v.
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Thompson, 197 F.3d 359, 364 (9th Cir. 1999).

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In addition, the petitioner must explicitly alert the state court that he is raising a federal
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constitutional claim. Duncan v. Henry, 513 U.S. 364, 366 (1995); Casey v. Moore, 386 F.3d
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896, 910-11 (9th Cir. 2004), cert. denied, 545 U.S. 1146 (2005). The petitioner must make the

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federal basis of the claim explicit either by citing specific provisions of federal law or federal

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case law, even if the federal basis of a claim is “self-evident,” Gatlin v. Madding, 189 F.3d 882,

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888 (9th Cir. 1999), cert. denied, 528 U.S. 1087 (2000), or by citing state cases that explicitly

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analyze the same federal constitutional claim, Peterson v. Lampert, 319 F.3d 1153, 1158 (9th

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Cir. 2003) (en banc).

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If the petitioner is in custody pursuant to a judgment imposed by the State of Arizona,

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he must present his claims to the state appellate court for review. Castillo v. McFadden, 399

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F.3d 993, 998 (9th Cir. 2005), cert. denied, 126 S.Ct. 348 (2005); Swoopes v. Sublett, 196 F.3d

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1008 (9th Cir. 1999), cert. denied, 529 U.S. 1124 (2000). If state remedies have not been

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exhausted, the petition may not be granted and ordinarily should be dismissed. See Johnson v.

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Lewis, 929 F.2d 460, 463 (9th Cir. 1991). In the alternative, the court has the authority to deny

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on the merits rather than dismiss for failure to exhaust. 28 U.S.C. § 2254(b)(2).

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A claim is “procedurally defaulted” if the state court declined to address the issue on the

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merits for procedural reasons. Franklin v. Johnson, 290 F.3d 1223, 1230 (9th Cir. 2002).

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Procedural default also occurs if the claim was not presented to the state court and it is clear the

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state would now refuse to address the merits of the claim for procedural reasons. Id. A claim

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that is procedurally defaulted must be denied unless the petitioner can “demonstrate cause for

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the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate

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that failure to consider the claims will result in a fundamental miscarriage of justice.” Boyd v.

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Thompson, 147 F.3d 1124, 1126 (9th Cir. 1998) (quoting Coleman v. Thompson, 501 U.S. 722,

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750 (1991)). A fundamental miscarriage of justice results “where a constitutional violation has

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probably resulted in the conviction of one who is actually innocent.” Murray v. Carrier, 477

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U.S. 478, 496, 106 S.Ct. 2639, 2649 (1986).

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In this case, the respondents argue Castillo’s claims are procedurally defaulted. They

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are correct. Castillo’s claims were raised in his second post-conviction relief petition. The trial

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court denied those claims as precluded pursuant to ARIZ.R.CRIM.P. 32.2(a) either because they

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were previously raised in his first post-conviction relief petition or because they should have

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been raised earlier but were not. (Doc. 9-8, p. 8) The court of appeals granted review but

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affirmed the decision of the trial court.

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Castillo’s issues were raised below and found barred for procedural reasons. They are

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procedurally defaulted. Franklin v. Johnson, 290 F.3d 1223, 1230 (9th Cir. 2002); see also

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Carriger v. Lewis, 971 F.2d 329, 333 (9th Cir. 1992) (Arizona’s rule of preclusion is regularly

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and consistently applied.), cert. denied, 507 U.S. 992 (1993).

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In his supplemental reply, Castillo argues his default should be excused because his

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various counsel were all ineffective citing Martinez v. Ryan, 132 S.Ct 1309 (2012). (Doc. 11)

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Counsel, however, did not cause his default.

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Procedural default may be excused if the petitioner can “demonstrate cause for the

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default and actual prejudice as a result of the alleged violation of federal law, or demonstrate

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that failure to consider the claims will result in a fundamental miscarriage of justice.” Boyd v.

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Thompson, 147 F.3d 1124, 1126 (9th Cir. 1998). Castillo cannot do so.

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The errors that Castillo claims were made at the time of the original sentencing should

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have been raised in Castillo’s “of right” Rule 32 post-conviction relief proceeding. If his “of

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right” Rule 32 counsel failed to raise these errors, the resulting default could be blamed on that

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attorney. See Martinez v. Ryan, 132 S.Ct 1309 (2012). Castillo, however, never filed notice

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of an “of right” Rule 32 proceeding. Accordingly, he never had an “of right” Rule 32 attorney,

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and now there is no one to shoulder the blame for his default. Castillo cannot show cause to

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excuse the default of his sentencing claims. See, e.g., Anderson v. Koster, 2012 WL 1898781,

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9 (W.D.Mo. 2012) (“Martinez is inapposite because, here, the petitioner himself is at fault for

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not filing a pro se Rule 29.15 motion in the first place.”).

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The errors that Castillo claims were made at his probation revocation should have been

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raised in Castillo’s first Rule 32 proceeding. Castillo argues his Rule 32 counsel is to blame for

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failing to raise these errors and causing the resulting default. See Martinez v. Ryan, 132 S.Ct

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1309 (2012). Castillo, however, fired his Rule 32 counsel and filed his own Rule 32 petition.

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He filed it late and almost all of his claims were denied as untimely. Accordingly, he cannot

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show his Rule 32 counsel caused the default. Castillo cannot show cause to excuse the default

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of his probation revocation claims.

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Finally, Castillo cannot demonstrate that “failure to consider the claims will result in a

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fundamental miscarriage of justice.” See Boyd v. Thompson, 147 F.3d 1124, 1126 (9th Cir.

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1998). A fundamental miscarriage of justice results “where a constitutional violation has

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probably resulted in the conviction of one who is actually innocent.” Murray v. Carrier, 477

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U.S. 478, 496, 106 S.Ct. 2639, 2649 (1986). Castillo does not argue he is actually innocent of

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his crimes of conviction.

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Castillo cannot “demonstrate cause for the default and actual prejudice as a result of the

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alleged violation of federal law, or demonstrate that failure to consider the claims will result in

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a fundamental miscarriage of justice.” See Boyd v. Thompson, 147 F.3d 1124, 1126 (9th Cir.

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1998); see also Thomas v. Lewis, 945 F.2d 1119, 1123 n. 10 (9th Cir. 1991) (The court need not

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analyze the prejudice prong if the petitioner does not establish cause for the default.)

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Accordingly, his claims should be dismissed as procedurally defaulted.

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The court expresses no opinion as to the respondents’ alternative arguments.

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RECOMMENDATION

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The Magistrate Judge recommends that the District Court, after its independent review

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of the record, enter an order DISMISSING the Petition for Writ of Habeas Corpus. (Doc. 1)

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Castillo’s claims are procedurally defaulted.

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Pursuant to 28 U.S.C. §636 (b), any party may serve and file written objections within

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14 days of being served with a copy of this report and recommendation. If objections are not

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timely filed, they may be deemed waived.

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The Clerk is directed to send a copy of this report and recommendation to the petitioner
and the respondents.
DATED this 30th day of January, 2013.

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