Fragoso v. Dupnik et al
Filing
23
ORDER dismissing 1 Petition for Writ of Habeas Corpus (State/2254) filed by Emilio Molina Fragoso. The Clerk of Court should enter judgment and close this case. The Court denies issuance of a certificate of appealability. Signed by Magistrate Judge Lynnette C Kimmins on 6/23/2016. (See Order for details) (DPS)
1
WO
2
3
4
5
6
IN THE UNITED STATES DISTRICT COURT
7
FOR THE DISTRICT OF ARIZONA
8
9
Emilio Molina Fragoso,
Petitioner,
10
11
ORDER
v.
12
No. CV-13-0159-TUC-LCK
Clarence Dupnik, et al.,
13
Respondents.
14
15
Petitioner Emilio Fragoso has filed a Petition for Writ of Habeas Corpus pursuant
16
to 28 U.S.C. § 2254. Before the Court are the Petition (Doc. 1), Respondents’ Answer
17
(Doc. 11), Petitioner’s Reply and Supplement (Docs. 17, 18), Respondents’ Answer to
18
the Supplement (Doc. 19) and Petitioner’s Reply thereto (Doc 20). The parties have
19
consented to Magistrate Judge jurisdiction.1 (Doc. 15.)
FACTUAL AND PROCEDURAL BACKGROUND
20
21
Fragoso was convicted in the Pima County Justice Court on two counts of driving
22
under the influence. (Doc. 11, Ex. H.) On June 23, 2009, he was sentenced to 10 days in
23
jail (9 suspended) and one year probation. (Id., Ex. J.) Fragoso’s sentence was stayed
24
while he pursued review of his conviction in state court and again after he filed the
25
instant Petition. (Id., Ex. I at 6; Exs. AA, BB.)
26
Fragoso appealed his convictions and the fines imposed. (Id., Ex. M.) The
27
Superior Court affirmed Fragoso’s convictions and sentence. After oral argument,
28
1
This case was reassigned to the current judge on May 10, 2016. (Doc. 22.)
1
2
3
Fragoso’s motion for rehearing was denied. (Id., Ex. R.) The Court of Appeals declined
jurisdiction over Fragoso’s Petition for Special Action. (Id., Exs. S, V.) Fragoso filed a
Petition for Review with the Arizona Supreme Court, which was denied. (Id., Exs. W, X.)
4
5
6
7
DISCUSSION
Fragoso raises one claim in his Petition, that his blood was seized in violation of
the Fourth Amendment. On appeal, the Superior Court summarized the facts relevant to
the claim before this Court as follows:
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
The Appellant came to the attention of law enforcement when his
overturned vehicle was discovered in the median on State Route 86. One of
the investigating officers, Officer Perrin, made contact with the Appellant
after the Appellant had been removed from his vehicle and placed in the
back of an ambulance. Officer Perrin smelled a moderate odor of
intoxicants coming from the Appellant. Officer Perrin followed the
ambulance containing the Appellant to University Medical Center. A
sample of the Appellant’s blood had been drawn for medical purposes.
Officer Perrin requested and obtained a sample from this blood draw.
(Doc. 11, Ex. P at 1.) Respondents contend the claim is procedurally defaulted and is
barred by Stone v. Powell, 428 U.S. 465, 494 (1976).
Exhaustion
Principles of Exhaustion and Procedural Default
A writ of habeas corpus may not be granted unless it appears that a petitioner has
exhausted all available state court remedies. 28 U.S.C. § 2254(b)(1); see also Coleman v.
Thompson, 501 U.S. 722, 731 (1991). To properly exhaust, a petitioner must “fairly
present” the operative facts and the federal legal theory of his claims to the state’s highest
court in a procedurally appropriate manner. O’Sullivan v. Boerckel, 526 U.S. 838, 848
(1999); Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 27778 (1971).
In Arizona, there are two primary procedurally appropriate avenues for petitioners
to exhaust federal constitutional claims: direct appeal and PCR proceedings. A habeas
petitioner’s claims may be precluded from federal review in two ways. First, a claim may
be procedurally defaulted in federal court if it was actually raised in state court but found
28
-2-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
by that court to be defaulted on state procedural grounds. Coleman, 501 U.S. at 729-30.
Second, a claim may be procedurally defaulted if the petitioner failed to present it in state
court 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.” Coleman, 501 U.S. at 735 n.1; see also Ortiz v. Stewart, 149 F.3d 923, 931 (9th
Cir. 1998) (stating that the district court must consider whether the claim could be
pursued by any presently available state remedy). If no remedies are currently available
pursuant to Rule 32, the claim is “technically” exhausted but procedurally defaulted.
Coleman, 501 U.S. at 732, 735 n.1; see also Gray v. Netherland, 518 U.S. 152, 161-62
(1996).
Analysis
In his appeal to the Superior Court, Fragoso argued that there was no probable
cause for the police to obtain a blood sample under Arizona’s medical draw statute;
therefore, the trial court should have granted his motion to suppress. (Doc. 11, Ex. M at
3.) Neither in his opening memorandum nor supplemental memorandum, did Fragoso
mention the Fourth Amendment. (Id., Exs. M, O.) He also did not mention any federal
law at oral argument. (Doc. 18-1.) Therefore, Fragoso failed to fairly present this Fourth
Amendment claim. Fragoso’s arguments, addressed below, do not alter this conclusion.
Fragoso argued that he exhausted the claim by citing the Fourth Amendment in his
motion to suppress before the trial court. But, he failed to cite the federal constitution
when raising the claim on appeal to the Superior Court, which is what was required. See
Castillo v. McFadden, 399 F.3d 993, 1000 (9th Cir. 2004) (holding appellate court not
required to review trial court pleadings to identify constitutional claim) (citing Baldwin v.
Reese, 541 U.S. 27, 30-31 (2004)). Fragoso also argues that “‘probable cause’ is
explicitly a Fourth Amendment/federal constitutional principle.” (Doc. 17 at 2.)
However, it is not enough that the federal constitutional ramifications of a claim are
“self-evident,” the petitioner must actually cite the relevant constitutional guarantee. See
28
-3-
1
2
3
4
5
6
7
8
9
10
Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999) (general appeal to the federal
constitutional right to a fair trial did not fairly present a due process claim).
Finally, Fragoso argues that the state cases he cited in his brief discuss federal
constitutional principles and cite to cases that apply a Fourth Amendment analysis.
Citation to state cases analyzing the relevant federal constitutional issue can be sufficient
to fairly present a claim to the state court. See Peterson v. Lampert, 319 F.3d 1153, 1158
(9th Cir. 2003). Fragoso’s appellate brief framed this claim as whether there was
sufficient evidence for an officer to find probable cause of DUI to obtain blood under
Arizona’s medical draw statute, A.R.S. § 28-1388(E). (Doc. 11, Ex. M.) He cited the
following legal principles:
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
Probable cause must be decided on its own facts and on a case-by-case
basis. State v. Marquez, 135 Ariz. 316, 318, 660 P.2d 1243, 1245 (App.
1983). The evidence must lead an officer to believe that guilt is more than a
“mere possibility.” State v. Emery, 131 Ariz. 493, 506, 642 P.2d 838, 851
(1982).
(Id. at 4.) Marquez makes no mention of the Fourth Amendment in its discussion of
probable cause to arrest nor does it cite to any federal case law. 135 Ariz. 316, 660 P.2d
1243. In Emery, the court cites several federal cases for the principle that probable cause
is based on probabilities, but then states, “In Arizona, probable cause has been defined as
. . .” 131 Ariz. 493, 505-06, 642 P.2d 838, 850-51. The Fourth Amendment is mentioned
once for the requirement that sufficient evidence of probable cause must be presented to
obtain a warrant. Id. at 506, 642 P.2d at 851. Here, there was no question of a warrant,
but rather whether there was probable cause for a warrantless blood draw under an
Arizona statute. Because Emery discusses both federal and state issues, and Fragoso
failed to provide any signal in his appellate brief that he was citing it for federal
principles, the Fourth Amendment claim was not fairly presented. See Casey v. Moore,
386 F.3d 896, 912 n.13 (9th Cir. 2004); Arrendondo v. Neven, 763 F.3d 1122, 1138 (9th
Cir. 2014). Further, citation to Emery, which cites cases that conduct the relevant
constitutional analysis is too remote to satisfy fair presentation. See Casey, 386 F.3d at
28
-4-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
911 n.12 (finding that appellate judges are not required to “read[ ] all cases that are cited
in the cases on which a petitioner relies, and instead the burden must be on the petitioner
to be explicit in asserting a federal constitutional right.”).
In sum, Fragoso failed to fairly present this Fourth Amendment claim to the state
court. If he were to return to state court now to litigate this claim it would be found
waived and untimely under Rules 32.2(a)(3) and 32.4(a) of the Arizona Rules of Criminal
Procedure because it does not fall within an exception to preclusion. Ariz. R. Crim. P.
32.2(b); 32.1(d)-(h). This claim is technically exhausted but procedurally defaulted.
Fragoso has not argued cause and prejudice to excuse the default or that there will
be a fundamental miscarriage of justice if this claim is not considered on the merits.
Stone v. Powell
Even if not defaulted, this Fourth Amendment claim is not subject to review by
this Court. In Stone, the Supreme Court held that “where the State has provided an
opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may
not be granted federal habeas relief on the ground that evidence obtained in an
unconstitutional search and seizure was introduced at trial.” Pursuant to Stone, a
prerequisite for consideration of Fragoso’s Fourth Amendment claim is the denial of the
chance to fully and fairly litigate the claim in state court.
Before trial, Fragoso filed a Motion to Suppress the blood test results. (Doc. 11,
Ex. C.) The trial court held a hearing at which the parties had an opportunity to present
evidence. (Id., Ex. E.) The court found probable cause for the blood draw and denied the
motion to suppress. (Id., Ex. F.) Fragoso raised the issue on appeal and filed a
supplemental memorandum. (Id., Exs. M, O.) In his appeal opening memorandum and at
oral argument on his appeal, Fragoso stated there was no factual dispute and the issue
was purely legal. (Id., Ex. M at 3; Doc. 18-1 at 4.) In a three-page opinion, the Superior
Court affirmed the justice court ruling. (Id., Ex. P.) After holding oral argument, the court
denied Fragoso’s motion for rehearing. (Id., Ex. R.) Review of the state court proceedings
28
-5-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
demonstrates that not only did Fragoso have an opportunity to fully litigate this claim, he
did so. See Moormann v. Schriro, 426 F.3d 1044, 1053 (9th Cir. 2005) (finding full and
fair opportunity when court held a pre-trial hearing where defendant could present
evidence and it made a factual finding, and decision was reviewed on appeal).
Fragoso argues he did not receive a full and fair review of his claim on appeal
because the court ignored relevant case law and denied the motion for rehearing in one
sentence. This Court looks at whether the opportunity for a full hearing was provided but
does not examine whether the state court’s decision was legally correct. See OrtizSandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996). In other words, inquiry into the
quality of the state courts’ ruling is not warranted under Stone if the state’s procedures for
deciding the question were fair. See Tisnado v. United States, 547 F.2d 452, 455 n.2 (9th
Cir. 1976); Abell v. Raines, 640 F.2d 1085, 1088 (9th Cir. 1981) (finding that federal
court may not re-litigate a Fourth Amendment claim even if it disagrees with the state
court’s resolution); Caldwell v. Cupp, 781 F.2d 714, 715 (9th Cir. 1986) (declining to
examine whether trial court made express findings of fact). Further, the one sentence
denial of rehearing was issued after an initial three-page decision.
Fragoso’s citation to the out-of-circuit case, Gamble v. Oklahoma, is inapposite
because in that case the court found the petitioner did not have a full and fair opportunity
to litigate his claim because the state courts ignored governing constitutional law directly
on point.2 583 F.2d 1161, 1164-65 (10th Cir. 1978). Here, the Fourth Amendment claim
was not directly raised to the state court and the law the state courts are alleged to have
ignored was non-controlling state law from Florida and Colorado. (Doc. 18-1.)
23
24
25
2
26
27
28
Fragoso also relies upon a test for “full and fair” litigation as set forth in Cabrera
v. Hinsley, 324 F.3d 527, 531 (7th Cir. 2003). The court cited that test as the circuit’s
“traditional formulation” for a full and fair opportunity to litigate; however, the court then
stated the test was no longer viable in light of more recent circuit decisions. Id. Therefore,
this Court does not evaluate Fragoso’s claim based on this out-of-circuit case that is no
longer good law.
-6-
1
2
The Court finds Fragoso had a full and fair opportunity to litigate this claim in
state court; therefore, the Court cannot consider the merits of the claim.
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, this Court
must issue or deny a certificate of appealability (COA) at the time it issues a final order
adverse to the applicant. A COA may issue only when the petitioner “has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This
showing can be established by demonstrating that “reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in a
different manner” or that the issues were “adequate to deserve encouragement to proceed
further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463
U.S. 880, 893 & n.4 (1983)). For procedural rulings, a COA will issue only if reasonable
jurists could debate (1) whether the petition states a valid claim of the denial of a
constitutional right, and (2) whether the court’s procedural ruling was correct. Id. The
Court finds that reasonable jurists would not find this Court’s procedural rulings
debatable. Therefore, a COA will not issue.
Accordingly, IT IS ORDERED that the Petition for Writ of Habeas Corpus is
DISMISSED.
IT IS FURTHER ORDERED that the Clerk of Court should enter judgment and
close this case.
IT IS FURTHER ORDERED that, pursuant to Rule 11 of the Rules Governing
Section 2254 Cases, in the event Petitioner files an appeal, the Court denies issuance of a
certificate of appealability.
Dated this 23rd day of June, 2016.
25
26
Honorable Lynnette C. Kimmins
United States Magistrate Judge
27
28
-7-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?