Almon #254336 v. Ryan et al

Filing 19

ORDER DISMISSING CASE. Petitioner's Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Doc. 1 ) is DENIED. A certificate of appealability is DENIED. This matter is DISMISSED with prejudice. The Clerk of the Court shall close its file in this matter. Signed by Magistrate Judge Bruce G Macdonald on 9/15/15. (See attached PDF for complete information.) (KAH)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Russell Hayden Almon,

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No. CV-12-00704-TUC-BGM

Petitioner,

ORDER

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v.
Charles L. Ryan, et al.,

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Respondents.

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Currently pending before the Court is Petitioner Russell Hayden Almon’s pro se

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Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State

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Custody (Non-Death Penalty) (“Petition”) (Doc. 1). Respondents have filed an Answer

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to Petition for Writ of Habeas Corpus (“Answer”) (Doc. 17).

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reply. The Petition is ripe for adjudication.

Petitioner did not file a

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I.

FACTUAL AND PROCEDURAL BACKGROUND
The Arizona Court of Appeals stated the basic facts1 as follows:
Russell Almon was placed on lifetime probation in 1999 following a plea of

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As these state court findings are entitled to a presumption of correctness and Petitioner
has failed to show by clear and convincing evidence that the findings are erroneous, the Court
hereby adopts these factual findings. 28 U.S.C. § 2254(e)(1); Schriro v. Landrigan, 550 U.S.
465, 473–74, 127 S.Ct. 1933, 1940, 167 L.Ed.2d 836 (2007); Wainwright v. Witt, 469, U.S. 412,
426, 105 S.Ct. 844, 853, 83 L.Ed.2d 841 (1985); Cf. Rose v. Lundy, 455 U.S. 509, 519, 102 S.Ct.
1198, 1204, 71 L.Ed.2d 379 (1982).

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no contest to a charge of child molestation. In 2010, the state filed a
petition to revoke his probation, asserting Almon had violated A.R.S. § 132310(A), fraudulent scheme and artifice, by providing the probation office
with falsified records indicating he had completed required community
service hours that he had not completed. The petition also asserted Almon
had not been at home when his probation schedule required him to be.
After a violation hearing, the trial court found Almon had violated his
probation, revoked his probation, and sentenced him to a five-year prison
term.
Answer (Doc. 17), Ct. App. Mem. Decision 12/9/2011 at 1–2.

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A. Post-Conviction Relief Proceeding

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On August 17, 2011, counsel for Petitioner filed an Anders2 brief with the Arizona

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Court of Appeals.3 Answer (Doc. 17), Appellant’s Opening Br. 8/17/2011 (Exh. “T”).

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Subsequently, Petitioner filed a pro se supplemental appellate brief. Answer (Doc. 17),

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Appellant’s Suppl. Br. 11/2/2011 (Exh. “W”). Petitioner alleged a single claim, asserting

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that based on the “totality of the circumstances, the trial court abused its discretion in

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finding that appellant intentionally committed fraudulent schemes and artifices[.]”

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Answer (Doc. 17), Exh. “W” at 6. Petitioner cites Schlup v. Delo, 513 U.S. 298, 115

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Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967).

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The Arizona Court of Appeals has described the procedure of filing an Anders brief as

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follows:
Under our procedure, when appointed counsel determines that a defendant's case
discloses no arguable issues for appeal, counsel files an Anders brief. The brief
contains a detailed factual and procedural history of the case, with citations to the
record. See Scott, 187 Ariz. at 478 n. 4, 930 P.2d at 555 n. 4. Counsel submits the
brief to the court and the defendant. The defendant is then given the opportunity
to file a brief pro per. After receiving all briefing, the court reviews the entire
record for reversible error. If any arguable issue presents itself, the court directs
appointed counsel to brief the issue. Only after the court has ascertained that
counsel has conscientiously performed his or her duty to review the record, and
has itself reviewed the record for reversible error and found none, will the court
allow counsel to withdraw. See State v. Shattuck, 140 Ariz. 582, 584–85, 684 P.2d
154, 156–57 (1984). We conclude that this procedure permits counsel to perform
ethically, while simultaneously ensuring that an indigent defendant's
constitutional rights to due process, equal protection, and effective assistance of
counsel are protected.
State v. Clark, 196 Ariz. 530, 537, 2 P.3d 89, 96 (Ct. App. 1999).

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S.Ct. 851, 130 L.Ed.2d 808 (1995), and argues that “the facts underlying the claim of

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actual innocence would be sufficient to establish that no reasonable fact-finder would

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have found the defendant guilty of the offense beyond a reasonable doubt.” Id., Exh.

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“W” at 8.

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On December 9, 2011, the Arizona Court of Appeals affirmed “the trial court’s

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determination that Almon violated the terms of his probation, its revocation of his

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probation, and the sentence imposed.” See Answer (Doc. 17), Ariz. Ct. App. Mem.

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Decision 12/9/2011 (Exh. “X”). As an initial matter the appellate court stated that “[t]o

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the extent [Petitioner] suggests the evidence was insufficient to support the trial court’s

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finding that he violated § 13-2310, he essentially asks us to reweigh the evidence, which

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we will not do.” Id., Exh. “X” at 3 (citing State v. Lee, 189 Ariz. 590, 603, 944 P.2d

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1204, 1217 (1997)). Regarding Petitioner’s claim of “actual innocence,” the court relied

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on Rule 27.8(b)(3), Arizona Rules of Criminal Procedure, and State v. Russell, 226 Ariz.

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416, ¶¶ 10–12, 249 P.3d 1116, 1118 (Ct. App. 2011), finding “the law is clear that, when

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alleging a person has violated his or her probation, the state need prove those allegations

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only by a preponderance of the evidence, not beyond a reasonable doubt.” Id., Exh. “X”

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at 3.

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Petitioner did not seek review of this decision with the Arizona Supreme Court.
Petition (Doc. 1) at 7; Answer (Doc. 17), Ariz. Supreme Ct. Order 3/13/2012 (Exh. “Z”).

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B. The Instant Habeas Proceeding

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On September 18, 2012, Petitioner filed his Petition Under 28 U.S.C. § 2254 for a

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Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 1).

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Petitioner claims four (4) grounds for relief. First, Petitioner alleges that the “[c]riminal

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burden of proof unproven showing conspiracy[.]” Petition (Doc. 1) at 6. Petitioner

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further alleges that the Government “engineered” the circumstances leading to the

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criminal charges and subsequent parole revocation, and that it “induced” and “entrapped”

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him. Id. at 17–18. Second, Petitioner alleges that the Government presented insufficient

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evidence to support the probation violation charged in this case. Id. at 7. Petitioner goes

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on to attack the plea agreement(s) in his original cause of action. Id. at 19–21. Third,

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Petitioner claims that his “sentence is illegal and improper[.]” Id. at 8. Petitioner asserts

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that the statute that he was prosecuted under for the probation violation did not match the

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plea agreement presented at the revocation hearing, thereby “leaving the entire process

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defective[.]”

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misconduct causing unknowing complicity of the grand jury as to presented evidence by

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Mr. Garcia the Government agent[.]” Id. at 9. On May 28, 2013, Respondents filed their

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Answer (Doc. 17). Petitioner did not file a reply.

Petition (Doc. 1) at 22.

Fourth, Petitioner alleges “[p]rosecutorial

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II.

STANDARD OF REVIEW

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A. In General

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The federal courts shall “entertain an application for a writ of habeas corpus in

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behalf of a person in custody pursuant to the judgment of a State court only on the ground

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that he is in custody in violation of the Constitution or laws of treaties of the United

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States.” 28 U.S.C. § 2254(a) (emphasis added). Moreover, a petition for habeas corpus

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by a person in state custody:

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shall not be granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the claim – (1)
resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or (2) resulted in a decision that was
based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.

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28 U.S.C. § 2254(d); see also Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 1398,

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179 L.Ed.2d 557 (2011). Correcting errors of state law is not the province of federal

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habeas corpus relief. Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 480, 116

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L.Ed.2d 385 (1991). Ultimately, “[t]he statute’s design is to ‘further the principles of

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comity, finality, and federalism.’” Panetti v. Quarterman, 551 U.S. 930, 945, 127 S.Ct.

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2842, 2854, 168 L.Ed.2d 662 (2007) (quoting Miller-El v. Cockrell, 537 U.S. 322, 337,

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123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)). Furthermore, this standard is difficult to meet

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and highly deferential “for evaluating state-court rulings, [and] which demands that state-

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court decisions be given the benefit of the doubt.”

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(citations and internal quotation marks omitted).

Pinholster, 131 S.Ct. at 1398

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The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 110 Stat.

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1214, mandates the standards for federal habeas review. See 28 U.S.C. § 2254. The

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“AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims

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have been adjudicated in state court.” Burt v. Titlow, — U.S. —, 134 S.Ct. 10, 16, 187

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L.Ed.2d 348 (2013).

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“presume the correctness of state courts’ factual findings unless applicants rebut this

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presumption with ‘clear and convincing evidence.’” Schriro v. Landrigan, 550 U.S. 465,

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473–74, 127 S.Ct. 1933, 1940, 167 L.Ed.2d 836 (2007) (citing 28 U.S.C. § 2254(e)(1)).

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Moreover, on habeas review, the federal courts must consider whether the state court’s

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determination was unreasonable, not merely incorrect. Id., 550 U.S. at 473, 127 S.Ct. at

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1939; Gulbrandson v. Ryan, 738 F.3d 976, 987 (9th Cir. 2013). Such a determination is

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unreasonable where a state court properly identifies the governing legal principles

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delineated by the Supreme Court, but when the court applies the principles to the facts

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before it, arrives at a different result. See Harrington v. Richter, 562 U.S. 86, 131 S.Ct.

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770, 178 L.Ed.2d 624 (2011); Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146

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L.Ed.2d 389 (2000); see also Casey v. Moore, 386 F.3d 896, 905 (9th Cir. 2004).

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“AEDPA requires ‘a state prisoner [to] show that the state court’s ruling on the claim

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being presented in federal court was so lacking in justification that there was an error . . .

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beyond any possibility for fairminded disagreement.’” Burt, 134 S.Ct. at 10 (quoting

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Harrington, 562 U.S. at 103, 131 S.Ct. at 786–87) (alterations in original).

Federal courts reviewing a petition for habeas corpus must

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B. Exhaustion of State Remedies

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Prior to application for a writ of habeas corpus, a person in state custody must

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exhaust all of the remedies available in the State courts. 28 U.S.C. § 2254(b)(1)(A). This

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“provides a simple and clear instruction to potential litigants: before you bring any claims

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to federal court, be sure that you first have taken each one to state court.” Rose v. Lundy,

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455 U.S. 509, 520, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982).

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exhaustion doctrine gives the State “the opportunity to pass upon and correct alleged

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violations of its prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct.

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1347, 1349, 158 L.Ed. 2d 64 (2004) (internal quotations omitted). Moreover, “[t]he

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exhaustion doctrine is principally designed to protect the state courts’ role in the

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enforcement of federal law and prevent disruption of state judicial proceedings.” Rose,

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455 U.S. at 518, 102 S.Ct. at 1203 (internal citations omitted). This upholds the doctrine

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of comity which “teaches that one court should defer action on causes properly within its

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jurisdiction until the courts of another sovereignty with concurrent powers, and already

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cognizant of the litigation, have had an opportunity to pass upon the matter.” Id. (quoting

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Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 590, 94 L.Ed. 761 (1950)).

As such, the

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Section 2254(c) provides that claims “shall not be deemed . . . exhausted” so long

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as the applicant “has the right under the law of the State to raise, by any available

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procedure the question presented.” 28 U.S.C. § 2254(c). “[O]nce the federal claim has

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been fairly presented to the state courts, the exhaustion requirement is satisfied.” Picard

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v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). The fair

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presentation requirement mandates that a state prisoner must alert the state court “to the

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presence of a federal claim” in his petition, simply labeling a claim “federal” or expecting

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the state court to read beyond the four corners of the petition is insufficient. Baldwin v.

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Reese, 541 U.S. 27, 33, 124 S.Ct. 1347, 1351, 158 L.Ed.2d 64 (2004) (rejecting

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petitioner’s assertion that his claim had been “fairly presented” because his brief in the

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state appeals court did not indicate that “he was complaining about a violation of federal

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law” and the justices having the opportunity to read a lower court decision addressing the

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federal claims was not fair presentation); Hiivala v. Wood, 195 F.3d 1098 (9th Cir. 1999)

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(holding that petitioner failed to exhaust federal due process issue in state court because

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petitioner presented claim in state court only on state grounds). Furthermore, in order to

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“fairly present” one’s claims, the prisoner must do so “in each appropriate state court.”

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Baldwin, 541 U.S. at 29, 124 S.Ct. at 1349.

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“Generally, a petitioner satisfies the

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exhaustion requirement if he properly pursues a claim (1) throughout the entire direct

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appellate process of the state, or (2) throughout one entire judicial postconviction process

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available in the state.” Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004) (quoting

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Liebman & Hertz, Federal Habeas Corpus Practice and Procedure, § 23.3b (9th ed.

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1998)).

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In Arizona, however, for non-capital cases “review need not be sought before the

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Arizona Supreme Court in order to exhaust state remedies.” Swoopes v. Sublett, 196 F.3d

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1008, 1010 (9th Cir. 1999); see also Crowell v. Knowles, 483 F.Supp.2d 925 (D. Ariz.

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2007); Moreno v. Gonzalez, 192 Ariz. 131, 962 P.2d 205 (1998). Additionally, the

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Supreme Court has further interpreted § 2254(c) to recognize that once the state courts

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have ruled upon a claim, it is not necessary for an applicant to seek collateral relief for

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the same issues already decided upon direct review. Castille v. Peoples, 489 U.S. 346,

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350, 109 S.Ct. 1056, 1060, 103 L.Ed.2d 380 (1989).

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C. Procedural Default

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“A habeas petitioner who has defaulted his federal claims in state court meets the

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technical requirements for exhaustion; there are no state remedies any longer ‘available’

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to him.” Coleman v. Thompson, 501 U.S. 722, 732, 111 S.Ct. 2546, 2555, 115 L.Ed.2d

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650 (1991). Moreover, federal courts “will not review a question of federal law decided

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by a state court if the decision of that court rests on a state law ground that is independent

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of the federal question and adequate to support the judgment.” Id., 501 U.S. at 728, 111

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S.Ct. at 2254. This is true whether the state law basis is substantive or procedural. Id.

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(citations omitted). Such claims are considered procedurally barred from review. See

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Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

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The Ninth Circuit Court of Appeals explained the difference between exhaustion
and procedural default as follows:
The exhaustion doctrine applies when the state court has never been
presented with an opportunity to consider a petitioner’s claims and that
opportunity may still be available to the petitioner under state law. In
contrast, the procedural default rule barring consideration of a federal claim

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applies only when a state court has been presented with the federal claim,
but declined to reach the issue for procedural reasons, or if it is clear that
the state court would hold the claim procedurally barred. Franklin v.
Johnson, 290 F.3d 1223, 1230 (9th Cir. 2002) (internal quotation marks and
citations omitted). Thus, in some circumstances, a petitioner’s failure to
exhaust a federal claim in state court may cause a procedural default. See
Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002); Beaty v. Stewart,
303 F.3d 975, 987 (9th Cir. 2002) (“A claim is procedurally defaulted ‘if
the petitioner failed to exhaust state remedies and the court to which the
petitioner would be required to present his claims in order to meet the
exhaustion requirement would now find the claims procedurally barred.’”)
(quoting Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546,
115 L.Ed.2d 640 (1991)).

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Cassett v. Stewart, 406 F.3d 614, 621 n. 5 (9th Cir. 2005). Thus, a prisoner’s habeas

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petition may be precluded from federal review due to procedural default in two ways.

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First, where the petitioner presented his claims to the state court, which denied relief

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based on independent and adequate state grounds. Coleman, 501 U.S. at 728, 111 S.Ct.

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at 2254. Federal courts are prohibited from review in such cases because they have “no

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power to review a state law determination that is sufficient to support the judgment,

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resolution of any independent federal ground for the decision could not affect the

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judgment and would therefore be advisory.” Id. Second, where a “petitioner failed to

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exhaust state remedies and the court to which the petitioner would be required to present

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his claims in order to meet the exhaustion requirement would now find the claims

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procedurally barred.” Id. at 735 n.1, 111 S.Ct. at 2557 n.1 (citations omitted). Thus, the

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federal court “must consider whether the claim could be pursued by any presently

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available state remedy.” Cassett, 406 F.3d at 621 n.6 (quoting Ortiz v. Stewart, 149 F.3d

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923, 931 (9th Cir. 1998)) (emphasis in original).

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Where a habeas petitioner’s claims have been procedurally defaulted, the federal

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courts are prohibited from subsequent review unless the petitioner can show cause and

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actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068,

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103 L.Ed.2d 334 (1989) (holding that failure to raise claims in state appellate proceeding

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barred federal habeas review unless petitioner demonstrated cause and prejudice); see

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also Smith v. Murray, 477 U.S. 527, 534, 106 S.Ct. 2661, 2666, 91 L.Ed.2d 434 (1986)

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(recognizing “that a federal habeas court must evaluate appellate defaults under the same

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standards that apply when a defendant fails to preserve a claim at trial.”).

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existence of cause for a procedural default must ordinarily turn on whether the prisoner

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can show that some objective factor external to the defense impeded counsel’s efforts to

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comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488, 106

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S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986); see also Martinez-Villareal v. Lewis, 80 F.3d

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1301, 1305 (9th Cir. 1996) (petitioner failed to offer any cause “for procedurally

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defaulting his claims of ineffective assistance of counsel, [as such] there is no basis on

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which to address the merits of his claims.”). In addition to cause, a habeas petitioner

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must show actual prejudice, meaning that he “must show not merely that the errors . . .

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

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

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477 U.S. at 494, 106 S.Ct. at 2648 (emphasis in original) (internal quotations omitted).

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Without a showing of both cause and prejudice, a habeas petitioner cannot overcome the

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procedural default and gain review by the federal courts. Id., 106 S.Ct. at 2649.

“[T]he

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The Supreme Court has recognized, however, that “the cause and prejudice

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standard will be met in those cases where review of a state prisoner’s claim is necessary

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to correct ‘a fundamental miscarriage of justice.’” Coleman v. Thompson, 501 U.S. 722,

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111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (quoting Engle v. Isaac, 456 U.S. 107, 135, 102

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S.Ct. 1558, 1572–73, 71 L.Ed.2d 783 (1982)). “The fundamental miscarriage of justice

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exception is available ‘only where the prisoner supplements his constitutional claim with

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a colorable showing of factual innocence.’” Herrara v. Collins, 506 U.S. 390, 404, 113

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S.Ct. 853, 862, 122 L.Ed.2d 203 (1993) (emphasis in original) (quoting Kuhlmann v.

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Wilson, 477 U.S. 436, 454, 106 S.Ct. 2616, 2627, 91 L.Ed.2d 364 (1986)). Thus, “‘actual

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innocence’ is not itself a constitutional claim, but instead a gateway through which a

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habeas petitioner must pass to have his otherwise barred constitutional claim considered

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on the merits.” Herrara, 506 U.S. at 404, 113 S.Ct. at 862. Further, in order to

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demonstrate a fundamental miscarriage of justice, a habeas petitioner must “establish by

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clear and convincing evidence that but for the constitutional error, no reasonable

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factfinder would have found [him] guilty of the underlying offense.”

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2254(e)(2)(B).

28 U.S.C. §

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In Arizona, a petitioner’s claim may be procedurally defaulted where he has

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waived his right to present his claim to the state court “at trial, on appeal or in any

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previous collateral proceeding.” Ariz. R. Crim. P. 32.2(a)(3). “if an asserted claim is of

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sufficient constitutional magnitude, the state must show that the defendant ‘knowingly,

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voluntarily and intelligently’ waived the claim.” Id., 2002 cmt. Neither Rule 32.2. nor

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the Arizona Supreme Court has defined claims of “sufficient constitutional magnitude”

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requiring personal knowledge before waiver. See id.; see also Stewart v. Smith, 202 Ariz.

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446, 46 P.3d 1067 (2002). The Ninth Circuit Court of Appeals recognized that this

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assessment “often involves a fact-intensive inquiry” and the “Arizona state courts are

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better suited to make these determinations.” Cassett, 406 F.3d at 622.

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III.

STATUTE OF LIMITATIONS

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As a threshold matter, the Court must consider whether Petitioner’s petition is

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barred by the statute of limitation. See White v. Klizkie, 281 F.3d 920, 921–22 (9th Cir.

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2002).

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applications for a writ of habeas corpus by a person in state custody. 28 U.S.C. §

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2244(d)(1). Section 2244(d)(1) provides that the limitations period shall run from the

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latest of:

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The AEDPA mandates that a one-year statute of limitations applies to

(A) the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by
the State action in violation of the Constitution or laws of the United States
is removed, if the applicant was prevented from filing by such State action;

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(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly recognized

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by the Supreme Court and made retroactively applicable to cases on
collateral review; or

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(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due diligence.

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28 U.S.C. § 2244(d)(1); Shannon v. Newland, 410 F.3d 1083 (9th Cir. 2005). “The time
during which a properly filed application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim is pending shall not be counted
toward any period of limitation under this subsection.”

28 U.S.C. § 2244(d)(2).

Respondents do not dispute the timeliness of Almon’s petition.

The Court has

independently reviewed the record and finds that the Petition (Doc. 1) is timely pursuant
to 28 U.S.C. § 2244(d)(1)(A).

IV.

ANALYSIS
A. Grounds One and Two: Burden of Proof and Sufficiency of the Evidence
Petitioner alleges that the “criminal burden of proof [was] unproven showing

conspiracy[.]” Petition (Doc. 1) at 6. Petitioner further asserts that there was insufficient
evidence to support a finding that he violated his probation under the appropriate burden
of proof. Id. at 7. Petitioner also takes issue with the form and content of the plea
agreements relied upon. Id. at 19–21. Respondents assert that “Petitioner did not fairly
present these claims to the state courts as federal claims[,]” and as such they are
procedurally defaulted. Answer (Doc. 17) at 9.
The Court agrees with Respondents and finds that Petitioner did not “fairly
present” these claims to the Arizona state courts. See Baldwin v. Reese, 541 U.S. 27, 33,
124 S.Ct. 1347, 1351, 158 L.Ed.2d 64 (2004) (rejecting petitioner’s assertion that his
claim had been “fairly presented” because his brief in the state appeals court did not
indicate that “he was complaining about a violation of federal law” and the justices
having the opportunity to read a lower court decision addressing the federal claims was
not fair presentation); Hiivala v. Wood, 195 F.3d 1098 (9th Cir. 1999) (holding that
petitioner failed to exhaust federal due process issue in state court because petitioner
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presented claim in state court only on state grounds). Petitioner did not assert any

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constitutional claims in his petition to the Arizona Court of Appeals. Indeed, the only

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case that he cited, Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995),

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contemplates actual innocence as a gateway to excuse procedural default and allow a

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federal habeas court to consider the petitioner’s constitutional claims.

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irrelevant federal or state cases does not provide a state court with a ‘fair opportunity to

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apply controlling legal principles to the facts bearing upon [a Petitioner’s] constitutional

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claim.’” Castillo v. McFadden, 399 F.3d 993, 1001 (9th Cir. 2004). Moreover, [i]t is not

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enough that all the facts necessary to support the federal claim were before the state

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courts . . . or that a somewhat similar state-law claim was made.” Anderson v. Harless,

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459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982) (per curiam).

“Citation of

12

As such, the Petitioner’s claims regarding the burden of proof and sufficiency of

13

the evidence are unexhausted, and would now be precluded. Ariz. R. Crim. P. 32.2(a)(3).

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Petitioner’s first two claims are therefore procedurally defaulted. Coleman v. Thompson,

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501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d 640 (1991) (“petitioner

16

failed to exhaust state remedies and the court to which the petitioner would be required to

17

present his claims in order to meet the exhaustion requirement would now find the claims

18

procedurally barred”).

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defaulted, the federal courts are prohibited from subsequent review unless the petitioner

20

can show cause and actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298, 109

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S.Ct. 1060, 1068, 103 L.Ed.2d 334 (1989) (holding that failure to raise claims in state

22

appellate proceeding barred federal habeas review unless petitioner demonstrated cause

23

and prejudice).

24

prejudice. Murray v. Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397

25

(1986) (Petitioner “must show not merely that the errors . . . created a possibility of

26

prejudice, but that they worked to his actual and substantial disadvantage, infecting his

27

entire trial with error of constitutional dimensions”) (emphasis in original) (internal

28

quotations omitted); see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir.

Where a habeas petitioner’s claims have been procedurally

Petitioner has not met his burden to show either cause or actual

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1996) (petitioner failed to offer any cause “for procedurally defaulting his claims[,] . . .

2

[and as such,] there is no basis on which to address the merits of his claims.”).

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The Court notes that even if it were to find that Petitioner had properly raised this

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claim to the state court, it would still be procedurally defaulted. The Arizona Court of

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Appeals, relying on State v. Lee, 189 Ariz. 590, 603, 944 P.2d 1204, 1217 (1997), held

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that “[t]o the extent [Petitioner] suggests the evidence was insufficient to support the trial

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court’s finding that he violated § 13-2310, he essentially asks us to reweigh the evidence,

8

which we will not do.” Answer (Doc. 17), Exh. “X” at 3. The court of appeals went on

9

to state:

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15

Almon claims he is ‘actually innocent’ because the evidence did not
support a conviction beyond a reasonable doubt, and the trial court erred in
applying a preponderance of the evidence standard. But the law is clear
that, when alleging a person has violated his or her probation, the state need
prove those allegations only by a preponderance of the evidence, not by a
reasonable doubt. Ariz. R. Crim. P. 27.8(b)(3); State v. Russell, 226 Ariz.
416 ¶¶ 10–12, 249 P.3d 1116, 1118 (App. 2011) (preponderance standard
applies to probation revocation based on alleged felony).

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Answer (Doc. 17), Exh. “X” at 3. In a footnote, the court of appeals also noted that

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Petitioner’s reliance on Schlup was misplaced. Id., Exh. “X” at 3 n. 2. When a Petitioner

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presents his claim to the state court, and is denied upon independent and adequate state

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grounds, this Court is prohibited from review.

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determination [] is sufficient to support the judgment, [and] resolution of any independent

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federal ground for the decision could not affect the judgment and would therefore be

22

advisory.” Coleman, 501 U.S. at 728, 111 S.Ct. at 2254. Accordingly, Petitioner is not

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entitled to habeas relief.

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13
14

This is because the “state law

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B. Ground Three: Excessive Sentence

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Petitioner asserts that his sentence was “illegal and improper[.]” Petition (Doc. 1)

26

at 8. Petitioner also asserts that the statute cited in the charging documents related to his

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case, and those cited in his plea agreement did not match. Id. at 22–24. Respondents

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again assert that “Petitioner did not fairly present th[is] claim[] to the state courts as [a]

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federal claim[][,]” and as such it is procedurally defaulted. Answer (Doc. 17) at 9.

2

The Court agrees with Respondents, and finds that Petitioner did not address this

3

claim to the Arizona state courts. See Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347,

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1349, 158 L.Ed.2d 64 (2004) (in order to “fairly present” one’s claims, the prisoner must

5

do so “in each appropriate state court”). As such, the claim is unexhausted, and would

6

now be precluded.

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procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546,

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2557 n. 1, 115 L.Ed.2d 640 (1991) (“petitioner failed to exhaust state remedies and the

9

court to which the petitioner would be required to present his claims in order to meet the

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Ariz. R. Crim. P. 32.2(a)(3).

Therefore, Petitioner’s claim is

exhaustion requirement would now find the claims procedurally barred”).

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Where a habeas petitioner’s claims have been procedurally defaulted, the federal

12

courts are prohibited from subsequent review unless the petitioner can show cause and

13

actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068,

14

103 L.Ed.2d 334 (1989) (holding that failure to raise claims in state appellate proceeding

15

barred federal habeas review unless petitioner demonstrated cause and prejudice).

16

Petitioner has not met his burden to show either cause or actual prejudice. Murray v.

17

Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986) (Petitioner

18

“must show not merely that the errors . . . created a possibility of prejudice, but that they

19

worked to his actual and substantial disadvantage, infecting his entire trial with error of

20

constitutional dimensions”) (emphasis in original) (internal quotations omitted); see also

21

Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer

22

any cause “for procedurally defaulting his claims[,] . . . [and as such,] there is no basis on

23

which to address the merits of his claims.”). Petitioner’s claim as to count three is

24

denied.

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C. Ground Four: Prosecutorial Misconduct

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Petitioner alleges that “[p]rosecutorial misconduct caus[ed] unknowing complicity

27

of the grand jury as to presented evidence by Mr. Garcia the Government agent.”

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Petition (Doc. 1) at 9. Petitioner further alleges that the prosecutor “enter[ed] into a

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1

fraudulent scheme . . . in order to acquire foundation and validity to the unmerited

2

claim[.]”

3

prosecutorial misconduct at the grand jury proceedings pertain[] to a different criminal

4

matter that is not the subject of this habeas petition.” Answer (Doc. 11) at 4; see also

5

Petition (Doc. 1) at 40–44. Respondents further assert that “because Petitioner pled

6

guilty, habeas relief is not available for alleged defects in the grand jury proceedings.”

7

Answer (Doc. 17) at 5.

Id. at 9, 25–28.

Respondents assert that this “Petitioner’s claim of

8

As an initial matter, Petitioner did not address this claim to the Arizona state

9

courts. See Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64

10

(2004) (in order to “fairly present” one’s claims, the prisoner must do so “in each

11

appropriate state court”).

12

precluded.

13

Petitioner’s guilty plea precludes habeas relief for any alleged grand jury irregularities is

14

correct. See Tollet v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d

15

235 (1973) (“when a criminal defendant has solemnly admitted in open court that he is in

16

fact guilty of the offense with which he is charged, he may not thereafter raise

17

independent claims relating to the deprivation of constitutional rights that occurred prior

18

to the entry of the guilty plea.”). As such, Petitioner is not entitled to habeas relief as to

19

ground four.

20

...

21

...

22

...

23

...

24

...

25

...

26

...

27

...

28

...

As such, the claim is unexhausted, and would now be

Ariz. R. Crim. P. 32.2(a)(3).

Furthermore, Respondents’ assertion that

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1

V.

CONCLUSION

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For the reasons delineated above, IT IS HEREBY ORDERED that:

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1) Petitioner’s Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a

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5
6

Person in State Custody (Doc. 1) is DENIED;
2) A certificate of appealability is DENIED, because reasonable jurists would not
find the Court’s ruling debatable. See 28 U.S.C. § 2253;

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3) This matter is DISMISSED with prejudice; and

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4) The Clerk of the Court shall close its file in this matter.

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10

Dated this 15th day of September, 2015.

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13

Honorable Bruce G. Macdonald
United States Magistrate Judge

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