Stanhope #46210 v. Ryan et al

Filing 43

ORDERED that the 1 Petition for Writ of Habeas Corpus (State/2254) filed by Gregory Allen Stanhope is denied with regard to Ground One, and dismissed with regard to Grounds Two through Seven. Further ordered that a Certificate of Appealability i s denied and shall not issue. The Clerk of Court is further directed to enter judgment and close the file in this matter. Signed by Magistrate Judge Bernardo P Velasco on 3/28/2017. (Attachments: # 1 Instructions-Civil Rights Complaint, # 2 Instructions-Leave to Proceed IFP)(BAR)

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1 WO 2 3 4 5 6 7 8 9 10 IN THE UNITED STATES DISTRICT COURT 11 FOR THE DISTRICT OF ARIZONA 12 13 Gregory Allen Stanhope, 14 Petitioner, 15 ORDER v. 16 No. CV-14-00310-TUC-BPV Charles Ryan, et al., 17 Respondents. 18 19 Pending before the Court is Petitioner Gregory Allen Stanhope’s pro se Petition 20 under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody. (Doc. 21 1). In accordance with the provisions of 28 U.S.C. §636(c)(1), all parties consented to 22 proceed before a United States Magistrate Judge to conduct any and all further 23 proceedings in this case, including trial and entry of a final judgment, with direct review 24 by the Ninth Circuit Court of Appeals if an appeal is filed. (Doc. 19). For the following 25 reasons, the Court denies and dismisses Petitioner’s Petition for Writ of Habeas Corpus. 26 I. FACTUAL & PROCEDURAL BACKGROUND 27 A. STATE CONVICTION 28 Petitioner was indicted in Arizona Superior Court, Pima County, cause number 1 CR08635, on July 6, 1982, and charged with two counts of armed robbery, two counts of 2 kidnapping, two counts of aggravated assault, and one count of burglary. (Reply (Doc. 3 31), Exh. 1) The following factual and procedural background is taken from the Arizona 4 10 Court of Appeal’s opinion on Petitioner’s direct appeal: The appellant was found guilty by a jury of two counts each of armed robbery, kidnapping and aggravated assault, and one count of first degree burglary. All of these convictions arose out of an incident at a retail sho[e] store in Tucson on June 23, 1982. The appellant was sentenced to prison for concurrent 21-year terms on each of the robbery counts, concurrent 21-year terms on each of the kidnappings to be served consecutively to the robbery sentences, and concurrent 15-year terms on each of the assaults and the burglary, the latter three sentences to be served consecutively to the robbery and kidnapping sentences.[1] 11 State v. Stanhope, 139 Ariz. 88, 90, 676 P.2d 1146, 1148 (App. 1984). The appellate 12 court affirmed Petitioner’s convictions and sentences. Id. Petitioner filed four petitions 13 for post-conviction relief pursuant to Rule 32 of the Arizona Rules of Criminal Procedure 14 in the state court, and unsuccessfully petitioned this Court for a writ of habeas corpus in 15 March 1998. (See Answer (Doc. 20) at 3). The Ninth Circuit affirmed this Court’s denial 16 of habeas relief in August 2002. Stanhope v. Stewart, 2002 WL 1996510 (9th Cir. 2002). 5 6 7 8 9 17 Petitioner initiated a fifth petition for post-conviction relief in state court on June 18 26, 2000, that was denied in 2001. (Answer, Exhs. A, B). In 2005, Petitioner filed a 19 special action in the trial court alleging due process violations from prison disciplinary 20 proceedings that ended in 2006. (Answer, Exh. C). On June 1, 2005, Petitioner initiated a 21 sixth post-conviction proceeding in the trial court that was denied in 2007. (Answer, 22 Exhs. D, E.) Petitioner filed a second petition for writ of habeas corpus in this Court in 23 January 2007. (See Answer at 4)). This Court found that Petitioner’s due process rights 24 1 25 26 27 28 In sum: the sentences imposed on counts 1 and 2 were to be served concurrent with each other and were to commence on December 1, 1982, the date of sentencing; the sentences imposed on counts 3 and 4 were to be served concurrent with each other but consecutive to the sentences imposed on counts 1 and 2, and were to commence upon completion of the sentences imposed on counts 1 and 2; and the sentences imposed on counts 5, 6, and 7 were to be served concurrent with each other but consecutive to the sentences imposed under counts 1 through 4, and the sentences imposed on counts 5, 6, and 7 were to commence upon completion of the sentences imposed under counts 1 through 4. (Answer, Exh. J (Doc. 21-1 at 11-14)). -2- 1 had been violated at one prison disciplinary proceeding and ordered that the State remedy 2 the violation by either restoring 60 days of earned release credits (“ERC”) or providing 3 Petitioner a new hearing. (See id.). On November 12, 2012, the Ninth Circuit affirmed, 4 and the State subsequently filed a notice of satisfaction of judgment providing evidence 5 that 60 days of ERC had been restored to Petitioner. (Id.). 6 While Petitioner’s appeal of this Court’s decision on his second petition for writ of 7 habeas corpus was pending, Petitioner filed a “Motion for Goodtime Jail Credits Pursuant 8 to ARS § 41-1604.07(A)” in state trial court in February 2011. (Reply, Exh. 2). The 9 court appointed counsel, set a briefing schedule, and a hearing date. (Id.). Two additional 10 motions, unidentified in this record, were subsequently filed by Petitioner and forwarded 11 to his appointed counsel, whom the court referred to as his counsel appointed to represent 12 him in his “Rule 32 proceedings.” (Reply, Exh. 3). On July 12, 2011, Petitioner filed an 13 amended motion asserting that in addition to the ERC to which he was entitled, he was 14 improperly denied a commutation hearing. (Reply, Exh. 4). The procedural path of this 15 proceeding is discussed in more detail below. 16 Petitioner’s request for relief on the merits on October 17, 2012. (Answer, Exh. P). The 17 court further denied Petitioner’s motion for rehearing. (Answer, Exhs. Q-R). Ultimately, the trial court denied 18 Petitioner filed a petition for review from the trial court’s ruling in the court of 19 appeals and the appellate court granted review but denied relief. (Answer, Exhs. S, V). 20 Petitioner’s motion for reconsideration of the appellate court’s decision was denied. 21 (Answer, Exhs. W-X). The Arizona Supreme Court subsequently denied Petitioner’s 22 petition for further review and a request for an evidentiary hearing on December 20, 23 2013. (Answer, Exhs. Y-Z). 24 B. 25 Petitioner filed the instant petition for writ of habeas corpus, which is his third 26 such proceeding in this Court, on January 8, 2014. Petitioner presents seven grounds for 27 relief: 28 Ground One: FEDERAL HABEAS PETITION “Whether the Arizona Dept of Corrections erred in its -3- 1 calculation of Stanhope’s earned release credits (ERC’s). Based on the 2 2002 amendment to the law. The 2002 change in the law was a ‘significant 3 change in the law’ that would affect the amount of time Stanhope would 4 have to spend in prison. The change in law was intended by the Legislature 5 to be applied retroactively, and Stanhope had a fundamental right to have 6 the change in law applied to his sentence, and a due process right under the 7 14th Amend. to the U.S. Constitution to have the change in law applied 8 properly. The ADC did not apply the newly awarded ERC’s to 9 [Petitioner’s] currently served sentence.” 10 Ground Two: 11 improperly denied Petitioner a timely commutation hearing.” 12 Ground Three: 13 in ruling on material facts and making conclusions of law when deciding 14 Petitioner[’s] claims without holding an evidentiary hearing.” 15 Ground Four: 16 cognizable under Rule 32.” 17 Ground Five: “Whether the Arizona Dept of Corrections (ADC) “Whether the trial court erred and abused its discretion “Whether the claims[]s raised by Petitioner were “Did Stanhope factually still have more than one year 18 left before earliest release date (PED-2-10-2012) when commute 19 application was submitted on 1-18-2011? With a[n] offense date of 20 June/1982, was the implementation of the ‘one year to earliest release 21 date’ rule used to exclude/deny eligibility for a commute hearing a[n] ‘ex 22 post facto’ change in the law and so unconstitutional when applied to 23 Petitioner? Did AZ Atty. General Tom Horne, Asst. Atty. General Paul E. 24 Carter enter into a conspiracy to coverup the fact the ADC had 25 miscalculated Stanhope’s release date?” 26 Ground Six: 27 finding that Petitioner is not entitled to ERC relief pursuant to the State 28 Rule 32 process in conflict with Div. I of the State Court of Appeals finding “Is the Arizona State Court of Appeals, Div. II’s -4- 1 in State v[]. Davis, 148 Ariz. 62, 64-65 (1985)[,] where they granted relief 2 pursuant to the State Rule 32 process? Would this Court clarify that 3 conflict?” 4 Ground Seven: 5 attorney Emily Danies and the Arizona State Superior Court trial judge, that 6 Rule 32 was the proper venue to bring these ERC and commutation 7 claims?” 8 II. “Was Petition[er] correct to rely on court[-]appointed DISCUSSION 9 Respondents contend that: Petitioner’s Ground One should be dismissed as a 10 successive claim; Grounds Two through Six should be dismissed because they are not 11 cognizable on habeas corpus review; and Ground Seven is procedurally defaulted. 12 Respondents argue, in the alternative, that Grounds One and Two are also procedurally 13 defaulted. 14 A. 15 Because Petitioner’s federal habeas petition was filed after April 24, 1996, this 16 case is governed by the Antiterrorism and Effective Death Penalty Act of 1996, 17 (“AEDPA”), 28 U.S.C. § 2254 (“§ 2254). Lindh v. Murphy, 521 U.S. 320, 336 (1997); 18 see also Woodford v. Garceau, 538 U.S. 202, 210 (2003). STANDARD OF REVIEW 19 Under the AEDPA, a writ of habeas corpus cannot be granted unless it appears 20 that the petitioner has exhausted all available state court remedies. 28 U.S.C. § 21 2254(b)(1); see also Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 22 455 U.S. 509 (1982). To exhaust state court remedies, the petitioner must “fairly present” 23 his claims to the state’s highest court in a procedurally appropriate manner. O’Sullivan v. 24 Boerckel, 526 U.S. 838, 848 (1999). “In cases not carrying a life sentence or the death 25 penalty, ‘claims of Arizona state prisoners are exhausted for purposes of federal habeas 26 once the Arizona Court of Appeals has ruled on them.’” Castillo v. McFadden, 399 F.3d 27 993, 998 n. 3 (9th Cir.2005) (quoting Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 28 1999)). -5- 1 A claim is fairly presented if the petitioner has described the operative facts and 2 the federal legal theory on which his claim is based. Anderson v. Harless, 459 U.S. 4, 6 3 (1982); Picard v. Connor, 404 U.S. 270, 277–78 (1971). A petitioner must clearly alert 4 the state court that he is alleging a specific federal constitutional violation. See Casey v. 5 Moore, 386 F.3d 896, 913 (9th Cir. 2004). He must make the federal basis of the claim 6 explicit either by citing specific provisions of federal law or federal case law, even if the 7 federal basis of a claim is “self-evident,” Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 8 1999), or by citing state cases that explicitly analyze the same federal constitutional 9 claim, Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc). 10 In Arizona, there are two procedurally appropriate avenues for petitioners to 11 exhaust federal constitutional claims: direct appeal and post-conviction relief (“PCR”) 12 proceedings. Rule 32 of the Arizona Rules of Criminal Procedure governs PCR 13 proceedings and provides that a petitioner is precluded from relief on any claim that 14 could have been raised on appeal or in a prior PCR petition. Ariz. R. Crim. P. 32.2(a)(3). 15 The preclusive effect of Rule 32.2(a) may be avoided only if a claim falls within certain 16 exceptions and the petitioner can justify his omission of the claim from a prior petition or 17 18 19 20 21 22 23 24 25 26 27 28 his failure to present the claim in a timely manner. See Ariz. R. Crim. P. 32.1(d)–(h), 32.2(b), 32.4(a). 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 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.” Id. at 735 n.1; see also Ortiz v. Stewart, 149 F.3d 923, 931 (9th Cir. 1998) (explaining that the district court must consider whether the claim could be pursued by any presently available state remedy). Therefore, in the present case, if there are claims that were not raised previously in state court, the Court must determine whether Petitioner has state remedies currently available to him pursuant to Rule 32. See -6- 1 Ortiz, 149 F.3d at 931. If no remedies are currently available, Petitioner’s claims are 2 “technically” exhausted but procedurally defaulted. Coleman, 501 U.S. at 732, 735 n.1. 3 If there are claims that were fairly presented in state court but found defaulted on 4 state procedural grounds, such claims will be found procedurally defaulted in federal 5 court so long as the state procedural bar was independent of federal law and adequate to 6 warrant preclusion of federal review. See Harris v. Reed, 489 U.S. 255, 262 (1989). It is 7 well established that Arizona’s preclusion rule is independent of federal law, see Stewart 8 v. Smith, 536 U.S. 856, 860 (2002), and the Ninth Circuit has repeatedly determined that 9 Arizona regularly and consistently applies its procedural default rules such that they are 10 an adequate bar to federal review of a claim. See Hurles v. Ryan, 752 F.3d 768, 780 (9th 11 Cir.), cert. denied, 135 S. Ct. 710 (2014) (Arizona’s waiver rules are independent and 12 adequate bases for denying relief); Ortiz, 149 F.3d at 932 (Rule 32.2(a)(3) regularly 13 followed and adequate); Poland v. Stewart, 117 F.3d 1094, 1106 (9th Cir. 1997) (finding 14 Arizona not “irregular” in application of procedural default rules); Martinez-Villareal v. 15 Lewis, 80 F.3d 1301, 1306 (9th Cir. 1996) (same). 16 17 18 19 20 21 22 23 24 25 26 27 28 Nonetheless, because the doctrine of procedural default is based on comity, not jurisdiction, federal courts retain the power to consider the merits of procedurally defaulted claims. Reed v. Ross, 468 U.S. 1, 9 (1984). As a general matter, however, the Court will not review the merits of a procedurally defaulted claim unless the petitioner demonstrates legitimate cause for his failure to exhaust the claim in state court and prejudice from the alleged constitutional violation, or shows that a fundamental miscarriage of justice would result if the claim were not heard on the merits in federal court. Coleman, 501 U.S. at 750. Generally, “cause” for a procedural default exists if the petitioner can demonstrate that “some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986); accord Coleman, 501 U.S. at 753. “Prejudice” is actual harm resulting from the alleged constitutional error or violation. Vickers v. Stewart, 144 F.3d 613, 617 (9th Cir. 1998). To establish prejudice resulting from a procedural default, the petitioner bears the burden of -7- 1 showing not merely that the errors at his trial were possibly prejudicial, but that they 2 worked to his actual and substantial disadvantage, infecting his entire trial with errors of 3 constitutional dimension. United States v. Frady, 456 U.S. 152, 170 (1982). 4 A habeas petitioner “may also qualify for relief from his procedural default if he 5 can show that the procedural default would result in a ‘fundamental miscarriage of 6 justice.’” Cook v. Schriro, 538 F.3d 1000, 1028 (9th Cir. 2008) (citing Schlup v. Delo, 7 513 U.S. 298, 321(1995)). See also Majoy v. Roe, 296 F.3d 770, 776–777 (9th Cir. 2002) 8 (analyzing this exception in a non-capital case). This exception to the procedural default 9 rule is limited to habeas petitioners who can establish that “a constitutional violation has 10 probably resulted in the conviction of one who is actually innocent[.]” Schlup, 513 U.S. 11 at 327; see also, Murray, 477 U.S. at 496; Cook, 538 F.3d at 1028. “‘To be credible, such 12 a claim requires petitioner to support his allegations of constitutional error with new 13 reliable evidence—whether it be exculpatory scientific evidence, trustworthy eye-witness 14 accounts, or critical physical evidence—that was not presented at trial.’” Cook, 538 F.3d 15 at 1028 (quoting Schlup, 513 U.S. at 324). 16 17 B. ANALYSIS 1. GROUND ONE 18 Respondents asserted in their Answer that Petitioner’s first ground for relief was 19 an unauthorized “second or successive” claim that must be dismissed for lack of 20 jurisdiction because the claim was available to Petitioner at the time he filed his second 21 habeas petition. (Answer at 6-7). The Court agreed with Respondents and stayed this 22 matter to allow Petitioner the opportunity to evaluate whether he wished to file an 23 amended petition advancing Grounds Two through Seven only. (March 9, 2015 Order 24 (Doc. 32)). While the stay was pending, Petitioner sought authorization from the Ninth 25 Circuit Court of Appeals to file a second or successive petition. 26 “Motion for Authorization for a ‘Second or Successive’ Habeas Corpus Petition” filed in 27 Stanhope v. Ryan, docketed sub nom. Stanhope v. O’Neil, (9th Cir. April 6, 2015) (No. 28 15-71055), (“Petitioner’s Ninth Circuit Application”); Petitioner’s Filing of Court Order -8- (See Petitioner’s 1 From the Ninth Circuit Court of Appeals (Doc. 39)); see also 28 U.S.C. §2244(b)(3) (a 2 prisoner can file a second or successive habeas petition only after obtaining an 3 authorization order from a three-judge panel in the appropriate court of appeals). The 4 Ninth Circuit denied Petitioner’s request as “unnecessary” to the extent that he sought 5 “authorization to allege a claim that in 2011 the Arizona Department of Corrections 6 (‘ADOC’) erred in the manner in which it recalculated his sentence to include 21 days of 7 presentence credit previously denied[.] See United States v. Buenrostro, 638 F.3d 720, 8 725 (9th Cir. 2011) (per curium) (prisoner may file second-in-time petition raising claim 9 that became ripe for adjudication after conclusion of first habeas proceeding).” Stanhope 10 v. O’Neil, No. 15-71055 (9th Cir. June 25, 2015 Order at 1) (“Ninth Circuit’s Order”).2 11 The Ninth Circuit denied Petitioner’s request to the extent that he sought “authorization 12 to allege that ADOC erred by failing to award [him] earned release credits in accordance 13 with a 2002 change in Arizona law. . .” because that claim was “subject to 28 U.S.C. 14 §2244(b)(2)” which prohibits the filing of a second or successive habeas petition. (Id. at 15 1-2). 16 Ground One includes Petitioner’s contention that due to a 2002 change in Arizona 17 law, he became eligible to receive 21 days of ERC3 for time spent in presentence 18 incarceration. In February 2011, Petitioner filed in state court a pro se “Motion for 19 Goodtime Jail Credits Pursuant to ARS § 41-1604.07(A)” advancing his claim that 20 ADOC had not awarded the 21 days of credit. (See Reply, Exh. 2 (Doc. 31 at 21-22); see 21 also id. at Exh. 4 (Petitioner’s Amended Motion for Good Time Jail Credits, which 22 included a claim that Petitioner was improperly denied a commutation hearing) (Doc. 31 23 at 28-35)). Petitioner requested that the 21 days of ERC at issue be applied to the 24 sentences that he was currently serving, which were the sentences on counts 3 and 4. 25 26 27 2 The Ninth Circuit’s Order is attached to Petitioner’s Filing of Court Order from the Ninth Circuit Court of Appeals (Doc. 39). 3 28 Review of Petitioner’s Petition and Reply, the state court filings in the record, and Petitioner’s Ninth Circuit Application reflects that the amount of ERC at issue is 21 days. -9- 1 (Reply, Exhs. 2, 4). The state trial court appointed counsel, Emily Danies, Esq., who on 2 August 9, 2011, filed a “Notice of Relief from Department of Corrections in Lieu of Rule 3 32 Petition” stating that the ADOC had informed her that Petitioner was not eligible for 4 commutation since it was within one year of the conclusion of the first part of the 5 consecutive sentence, and that ADOC had recalculated Petitioner’s sentence to include 21 6 days of presentence credit previously denied. (Answer, Exh. I; Reply, Exh. 2 (Doc. 31 at 7 23)). Ms. Danies also sent Petitioner a letter informing him that his ERC would be 8 included in the next calculation of his time, and that the commutation hearing could not 9 occur during the last year of a sentence. (Reply, Exh. 8.) 10 Thereafter, Petitioner, acting pro se, initiated a seventh post-conviction proceeding 11 in the state trial court on January 6, 2012. (Answer, Exh. F). The trial court ordered that 12 Petitioner’s previous counsel, Ms. Danies, transfer her records to Petitioner. (Id., Exh. G). 13 Ms. Danies filed a notice of transmittal of file. (Id., Exh. H; see also id., Exh. I (Response 14 to Petitioner’s Notice of Receipt of Documentation from Attorney Emily Danies)). She 15 also filed a response to a notice she had received from Petitioner. (Id., Exh. I). 16 On April 11, 2012, Petitioner filed a pro se Rule 32 Petition (“Seventh PCR 17 Petition”) asserting that the ADOC failed to properly credit him with the 21 days at issue 18 and also improperly failed to provide him with a commutation hearing. (Answer, Exh. J). 19 Petitioner asserted that ADOC should have credited the sentence he was serving in 2002, 20 when the amendment came into effect which made him eligible to receive such credit. 21 (Id.). According to Petitioner, none of his sentences were credited. (Id.). Petitioner 22 requested that the court award the 21 days of credit to the sentences for counts 5, 6, and 23 7, which he was serving at the time he filed his Seventh PCR Petition. (Id.). Petitioner 24 simultaneously filed a “Motion to Have Witnesses Called to Testify a[t] the Rule 32 25 Evidentiary Hearing, Production of Documents Request.” (Answer, Exh. K). 26 The trial court denied Petitioner’s Motion to Have Witnesses Called to Testify at 27 the Rule 32 Evidentiary Hearing and for documents as premature. (Answer, Exh. N). On 28 October 17, 2012, the trial court denied Petitioner’s Seventh PCR Petition. (Answer, - 10 - 1 Exh. P). With regard to Petitioner’s claim concerning the ERC, the trial court denied the 2 claim based upon the Notice of Relief filed by Ms. Danies, Petitioner’s previously 3 appointed counsel, and a letter from the Attorney General’s office to Ms. Danies stating 4 that ADOC “has in fact recalculated Petitioner’s sentence to include 21 days of 5 presentence credit previously denied.” (Answer, Exh. P). 6 Petitioner filed a motion for a rehearing, which the trial court denied. (Answer, 7 Exhs. Q, R). Petitioner next filed a petition for appellate court review. (Answer, Exh. S). 8 In opposing Petitioner’s petition for review of the denial of his Seventh PCR 9 Petition, the state argued that the credit had been included in the earned release credit 10 calculation concerning Petitioner’s sentence on counts 1 and 2 which, according to the 11 state, resulted in an ERC date of April 6, 1998. (Answer, Exh. T at 4). The state also 12 pointed out that before Petitioner reached that ERC date, he was granted parole to his 13 consecutive sentences on counts 3 and 4, effective January 17, 1997. (Id.). The state 14 argued that Petitioner, therefore, was awarded the credits and, in any event, the issue was 15 moot because Petitioner “was paroled to his consecutive sentence before he even reached 16 his ERC date.” (Id. at 7). Petitioner countered that the state had not carried its burden 17 of showing that the 21 days had in fact been included in the earned release credit 18 calculation, especially because the calculation pertained to a sentence that ended long 19 before the 2002 change in the law permitting the additional 21 days of ERC. (See 20 Answer, Exh U). Petitioner also objected to the state opening an expired sentence to 21 apply the ERC at issue. (Id.). The appellate court granted review but denied relief 22 because Petitioner’s claims were not cognizable under Rule 32. (Answer, Exh. V). 23 Although the Ninth Circuit denied Petitioner authorization to allege that ADOC 24 failed to award earned release credits in accordance with a 2002 change in the law, the 25 court also stated that Petitioner did not require authorization “to allege a claim that in 26 2011 the….[ADOC] erred in the manner in which it recalculated his sentence to include 27 21 days of presentence credit previously denied[.]” (Ninth Circuit Order at 1). Thus, to 28 any extent that Petitioner alleges in Ground One that ADOC did not award him ERC in - 11 - 1 accordance with the 2002 change in Arizona law, such a claim is successive. However, 2 based upon the Ninth Circuit’s Order, Petitioner may proceed to the extent that he alleges 3 in Ground One that the 21 days of ERC awarded pursuant to the 2002 change were not 4 properly applied to his sentence. According to Petitioner, the ERC should have been 5 applied to the sentences on counts 3 and 4 that he was serving when the law came into 6 effect in 2002, not to his sentences on counts 1 and 2 that had expired before the law 7 changed. (Petition at 6). Petitioner asserts that because the ERC was not applied to the 8 sentences on counts 3 and 4, the credit should be applied to the sentences he is currently 9 serving on counts 5, 6, and 7. (Id.). 10 Respondents assert that Ground One is procedurally defaulted because the state 11 appellate court found Petitioner’s claims were not cognizable under Ariz.R.Crim.P. 32. 12 According to Respondents, that ruling constitutes a procedural bar to Petitioner raising 13 the same claim on federal habeas review and results in procedural default. (Answer at 14 13-14 ). 15 Generally, “[f]ederal courts ‘will not review a question of federal law decided by a 16 state court if the decision of that court rests on a state law ground that is independent of 17 the federal question and adequate to support the judgment.” Bennett v. Mueller, 322 F.3d 18 573, 580 (9th Cir. 2003) (quoting Coleman, 501 U.S. at 729). “To be deemed adequate, 19 the state law ground for decision must be well-established and consistently applied.” Id. 20 593 (citing Poland v. Stewart, 169 F.3d 573, 577 (9th Cir.1999) (“A state procedural rule 21 constitutes an adequate bar to federal court review if it was []firmly established and 22 regularly followed[] at the time it was applied by the state court.”). Arizona case law 23 appears to consistently hold that the appropriate vehicle to raise claims concerning good 24 time credits similar to those advanced by Petitioner is a special action. See State v. 25 Davis, 148 Ariz. 62, 64, 712 P.2d 975, 977 (App 1985) (claim concerning computation of 26 good time credits was not cognizable under Rule 32 and was construed as a special 27 action); see also Tittle v. State, 169 Ariz. 8, 815 P.2d 267 (App. 1991) (addressing claim 28 regarding eligibility for good time credits as a special action); cf. State v. Goldin,239 - 12 - 1 Ariz. 12, 17, 365 P.3d 364, 369 (App. 2015) (“a miscalculation by DOC, without more, 2 would not be grounds for relief under Rule 32”) (citing Ariz.R.Crim.P. 32.1(d) & cmt.; 3 Davis, 148 Ariz. at 64, 712 P.2d at 977). Yet, for a claim to be procedurally defaulted so 4 as to preclude federal habeas review, the petitioner must not be able to return to state 5 court to properly exhaust the claim. Respondents have not shown that Petitioner is 6 unable to return to state court to file a special action. In such circumstances, Petitioner’s 7 claim remains unexhausted, but is not procedurally defaulted. Consequently, in this case, 8 Petitioner’s failure to exhaust state remedies does not render the claim unreviewable 9 because this Court may deny a petition for writ of habeas corpus on the merits, 10 notwithstanding the petitioner’s failure to exhaust. See 28 U.S.C. §2254(b)(2); Cassett, 11 406 F.3d at 623-24 (a federal court may deny an unexhausted petition on the merits when 12 the petition does not raise a colorable federal claim).4 13 Regardless of whether the claim is exhausted, it is without merit. When the law 14 was changed in 2002 so as to make Petitioner eligible for the 21 days of ERC, he was 15 serving concurrent sentences on counts 3 and 4. Even if it was improper for ADOC to 16 apply the 21 days of ERC to a sentence that had expired before the law came into effect 17 (as ADOC claimed it did before the state appellate court), the record reflects that 18 Petitioner was ultimately granted parole on his sentences on counts 3 and 4 on December 19 19, 2011. (See Answer, Exh. Q, internal exh. 2 at 2 (Doc. 22-1 at ¶¶10, 12)). Had 20 Petitioner not been granted parole on sentences 3 and 4, the sentences were calculated to 21 expire on January 16, 2018, and the projected earned release credit date was calculated to 22 fall on October 16, 20125. (See id.). Therefore, even if ADOC improperly failed to grant 23 Petitioner credit for the 21 days at issue on sentences 3 and 4, his early grant to parole— 24 4 25 26 27 28 It is also arguable that Petitioner’s claim is actually exhausted given that the appellate court did not sua sponte exercise discretion to treat Petitioner’s Seventh PCR Petition as a special action despite having authority to do so, see Davis, 148 Ariz. at 64, 712 P.2d at 977, and the court also denied Petitioner’s motion for reconsideration requesting in part that the matter be remanded to the trial court as a special action (Answer, Exhs. W, X). 5 Granting Petitioner the benefit of the doubt, the Court will presume that the projected earned release credit date does not take into account the 21 days at issue here. - 13 - 1 which occurred more than 21 days prior to the end of his calculated ERC release date— 2 moots the issue. Consequently, Petitioner’s Ground One claim with regard to ADOC’s 3 2011 calculation concerning the 21 days of presentence credit is denied on the merits. 4 2. GROUNDS TWO AND FIVE 5 Petitioner’s Grounds Two and Five raise issues relating to ADOC’s denial of 6 Petitioner’s January 2011 request for a commutation hearing. In Ground Two, Petitioner 7 argues that the ADOC improperly denied him a timely computation hearing in violation 8 of his right to due process under the Fourteenth Amendment. In Ground Five, Petitioner 9 argues that he was eligible for a commutation hearing and that then Arizona Attorney 10 General Tom Horne and Assistant Arizona Attorney General Paul Carter “conspire[d] 11 with the AD[O]C to cover up and hide the fact that the AD[O]C violated Stanhope’s 12 sentence and due process rights by not complying with the terms of his sentence. . . .” 13 (Petition at 10). Petitioner requests that the Court direct ADOC to award him “336 days 14 time served on his current sentence pursuant to their refusal to allow him a commutation 15 hearing per the proper commute application submitted on 11-18-2011 that they 16 improperly ruled him ineligible for and was then paroled on 12-19-11.” (Id. at 14). 17 Respondents contend that both grounds for relief are not “cognizable on habeas 18 review because a prisoner has ‘no constitutional or inherent right to commutation of his 19 sentence.’” (Answer at 8 (quoting Connecticut Board of Pardons v. Dumschat, 452 U.S. 20 458, 464 (1981)). Respondents also point out that “Arizona’s clemency statutes do not 21 provide a state prisoner with a protected liberty interest in having his sentence 22 commuted.” (Id. (citing Woratzeck v. Stewart, 118 F.3d 648, 653 (9th Cir. (1997) 23 (“There is no constitutional right to a clemency hearing.”)). 24 It is well-settled that “when a state prisoner is challenging the very fact or duration 25 of his physical imprisonment, and the relief he seeks is a determination that he is entitled 26 to immediate release or a speedier release from that imprisonment, his sole federal 27 remedy is a writ of habeas corpus.” Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); see 28 also Skinner v. Switzer, 562 U.S. 521, 525 (2011) (“Habeas [corpus] is the exclusive - 14 - 1 remedy. . . for the prisoner who seeks ‘immediate or speedier release’ from 2 confinement.”) (quoting Wilkinson v. Dotson, 544 U.S. 74, 82 (2005)); Nettles v. 3 Grounds, 830 F.3d 922 (9th Cir. 2016) (en banc), cert denied, __ U.S. __, 137 S.Ct. 645 4 (2017). However, a habeas corpus action is not the proper method to address issues that 5 will not necessarily impact the fact or duration of an inmate’s confinement. See Nettles, 6 830 F.3d 934-35. 7 In Nettles the petitioner challenged a disciplinary proceeding that resulted in delay 8 of his parole hearing and constituted grounds for future denial of parole. Id. at 927. The 9 court held that because the challenged disciplinary proceeding would not necessarily 10 impact the fact or duration of his conferment, Nettles’s claims did not fall within “the 11 core of habeas corpus” and, therefore, were not appropriately brought as a habeas corpus 12 action. Id. at 927-31. In so holding, the Nettles court recognized that: Success on the merits of Nettles’s claim would not necessarily lead to immediate or speedier release because the expungement of the challenged disciplinary violation would not necessarily lead to a grant of parole. Under California law, the parole board must consider “[a]ll relevant, reliable information’ in determining suitability for parole. Cal. Code Regs. tit. 15, § 2281(b). A rules violation is merely one of the factors shedding light on whether a prisoner ‘constitutes a current threat to public safety,” In re Lawrence, 44 Cal.4th 1181, 82 Cal.Rptr.3d 169, 190 P.3d 535, 553 (2008). Because the parole board has the authority to deny parole “on the basis of any of the grounds presently available to it,” Ramirez [v. Galaza], 334 F.3d [850,] at 859 [(9th Cir. 2003)], the presence of a disciplinary infraction does not compel the denial of parole, nor does an absence of an infraction compel the grant of parole. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Id. at 935. Arizona law is clear that regardless of any recommendation by the Arizona Board of Executive Clemency, (“the Board”) “‘[t]he governor retains ultimate authority to grant or deny a recommended commutation.’” State v. Vera, 235 Ariz. 571, 576, 334 P.3d 754, 759 (App. 2014) (quoting McDonald v. Thomas, 202 Ariz. 35, 40 P.3d 819, 824 (2002) and citing Wigglesworth v. Mauldin, 195 Ariz. 432, 990 P.2d 26, 33 (App.1999) (under present law, “an Arizona governor’s discretion to act on the Board’s recommendations remains unfettered, subjective, arbitrary, and a matter of grace.”)); see also Banks v. - 15 - 1 Arizona State Board of Pardons and Paroles, 129 Ariz. 199, 201, 629 P.2d 1035, 1037 2 (App. 1981) (“[T]he Arizona courts have held that commutation is a matter of grace, not 3 of right.”). Consequently, even if Petitioner were to succeed on his claim that he was 4 improperly denied a commutation hearing, it does not necessarily follow that such a 5 determination would result in his immediate release from custody or the shortening of his 6 sentence. As in Nettles, the absence of a commutation hearing in this case does not 7 compel the grant of clemency. 8 allegation that he was improperly denied a commutation hearing do “not fall within the 9 core of habeas corpus” and are not properly brought pursuant to §2254. See Nettles, 830 10 11 Accordingly, Petitioner’s claims arising from the F.3d at 935 (internal quotation marks and citation omitted). 3. GROUND THREE 12 Petitioner argues the state court “abused its discretion. . .” by not holding an 13 evidentiary hearing on his Seventh PCR Petition, which he contends violated his right to 14 due process under the Fourteenth Amendment. 15 dismissal of Ground Three because it is not cognizable on habeas corpus review. 16 (Answer at 8). (Petition at 8). Respondents seek 17 Respondents are correct. The Ninth Circuit “has specifically stated that federal 18 habeas relief is not available to redress alleged procedural errors in state post-conviction 19 proceedings.” Ortiz,, 149 F.3d at 939 (citations omitted). See also Gerlaugh v. Stewart, 20 129 F.3d 1027, 1045 (9th Cir. 1997) (errors allegedly occurring during state post- 21 conviction proceedings are not cognizable in a federal habeas action); Franzen v. 22 Brinkman, 877 F.2d 26, 26 (9th Cir.1989) (“A [habeas corpus] petition alleging errors in 23 the state post-conviction review process is not addressable through habeas corpus 24 proceedings.”); Leon v. Ryan, 2014 289980, at *9-10 (D. Ariz. Jan 27, 2014) (claim that 25 state court errored by not granting an evidentiary hearing during post-conviction review 26 proceeding was not cognizable on habeas review). Ground Three is dismissed. 27 28 4. GROUND FOUR In denying relief on review of Petitioner’s Seventh PCR Petition, the appellate - 16 - 1 court held that Petitioner’s claims were not properly brought as a post-conviction review 2 petition under Ariz.R.Cr.P. 32.1, because “[c]hallenges to the ADOC’s computation of 3 credit ‘are not cognizable under Rule 32 unless they result in the defendant remaining in 4 custody when he should otherwise be free.’” (Answer, Exh. Y at 3 (quoting Davis, 148 5 Ariz. at 64, 712 P.2d at 977)). Petitioner argues in Ground Four that his Seventh PCR 6 Petition, which contained his claims that ADOC improperly denied him ERC and a 7 timely commutation hearing, was properly brought pursuant to Ariz.R.Crim.P. 32. 8 (Petition at 9). According to Petitioner, he has a “due process right and liberty interest in 9 his ERC[] and how long he’ll spend in prison. That due process rights extends to his 10 receiving a timely [and] meaningful commutation hearing[,] too.” (Id.). 11 “[I]t is not the province of a federal habeas court to reexamine state-court 12 determinations on state-law questions. In conducting habeas review, a federal court is 13 limited to deciding whether a conviction violated the Constitution, laws, or treaties of the 14 United Sates.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also Wilson v. 15 Corcoran, 562 U.S. 1, 5 (2010); Bonin v. Calderon, 59 F.3d 815, 841 (9th Cir. 1995). 16 Alleged errors in the application of state law are not cognizable in federal habeas corpus. 17 Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Souch v. Schaivo, 289 F.3d 616, 623 (9th Cir. 18 2002); Bonin v. Calderon, 59 F.3d 815, 841 (9th Cir. 1995). Nor may a petitioner 19 “transform a state-law issue into a federal one merely by asserting a violation of due 20 process.” Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996) (citations omitted). 21 Instead, on habeas review, the federal courts are to “accept a state court’s interpretation 22 of state law, . . . and alleged errors in the application of state law are not cognizable in 23 federal habeas corpus.” Id.; see also Franzen, 877 F.2d at 26 (assertions of error in the 24 state post-conviction proceeding are not proper grounds for habeas relief). 25 Moreover, even if the Court were to consider Plaintiff’s assertion of due process 26 violation at face value, his allegations do not demonstrate a violation. Petitioner argued 27 to the state court that he was entitled to relief under Rule 32.1(d), which permits relief 28 only if he were “being held in custody after the sentence imposed has expired.” - 17 - 1 Ariz.R.Crim.P. 32.1(d); see also Ariz.R.Crim.P. 32.1(d) cmt (“Paragraph (d) is intended 2 to include claims of more traditional types--e.g., miscalculation of sentence, questions of 3 computation of good time--which result in the defendant’s remaining in custody when he 4 should be free.”). Petitioner did not argue that he would be entitled to immediate release, 5 nor did he request same. Instead, he requested an award of 21 days of earned release 6 credit plus an additional 336 days of credit for the time between when he applied for a 7 commutation hearing and when he began serving his next set of consecutive sentences. 8 Further, although Petitioner argued to the state court that the denial of a commutation 9 hearing violated his constitutional rights, Rule 32.1 does not apply to claims of an alleged 10 constitutional violation occurring during a petitioner’s incarceration. See Davis, 148 11 Ariz. at 64, 712 P.2d at 977. In sum, Petitioner advances no federal claim and, to any 12 extent this claim is somehow within the province of federal habeas relief, examination of 13 Rule 32.1 and the comments thereto supports the conclusion that his claims were not 14 cognizable under that Rule. Petitioner’s Ground Four is dismissed. 15 5. GROUND SIX 16 Petitioner’s statement of claim in Ground Six reads: “Is the Arizona State Court 17 of Appeals, Div. II’s finding that Petitioner is not entitled to ERC relief pursuant to the 18 State Rule 32 process in conflict with Div. I of the State Court of Appeals finding in State 19 v[]. Davis, 148 Ariz. 62, 64-65 (1985)[,] where they granted relief pursuant to the State 20 Rule 32 process? Would this Court clarify that conflict?” (Petition at 11). According to 21 Petitioner, “with the constitutional guarantee to habeas corpus, the Davis case should be 22 controlling.” (Id.). 23 In Davis, like the instant case, the Arizona appellate court held that a prisoner’s 24 challenge regarding computation of good time credit was not cognizable under 25 Ariz.R.Crim.P. 32.1 because even if the claim was meritorious, the prisoner would not be 26 entitled to immediate release from imprisonment. Davis, 148 Ariz. at 64, 712 P.2d at 27 977. The court went on to consider the matter “as an appeal from a denial of special 28 action relief in the trial court[]” and ultimately granted relief. Id. at 64-65, 712 P.2d at - 18 - 1 977-78 (recognizing that “where relief may be granted by extraordinary writ (special 2 action), this court may grant the appropriate relief even though the writ applied for or the 3 motion is not aptly titled.”). In Arizona, “[a]cceptance of special action jurisdiction is 4 highly discretionary.” Pompa v. Superior Court, 187 Ariz. 531, 533, 931 P.2d 431, 433 5 (App. 1997). 6 “conflict” between Davis and the appellate court’s decision in his case. In Petitioner’s 7 case, the appellate court did not discuss in its decision whether special action jurisdiction 8 was appropriate. The appellate court also subsequently denied Petitioner’s motion for 9 reconsideration requesting, among other things, that the court remand the matter to the 10 Petitioner requests that this Court “clarify” what he perceives as a trial court as a special action. (Answer, Exhs. W, X). 11 As with Ground Four, Petitioner’s Ground Six involves questions of state law and, 12 at best, allegations of error in the interpretation or application of state law. In Ground 13 Six, Petitioner does not identify any specific federal constitutional violation. Petitioner’s 14 Ground Six, like Ground Four, is not cognizable on habeas review. As discussed above, 15 federal habeas relief is not available for alleged error in the interpretation and application 16 of state law. Wilson, 562 U.S. at 5; Estelle, 502 U.S. at 62; Souch, 289 F.3d at 623; 17 Bonin, 59 F.3d at 841. Petitioner’s Ground Six is dismissed. 18 6. GROUND SEVEN 19 Petitioner claims that the trial court abused its discretion and his court-appointed 20 counsel, Ms. Danies, “committed ineffective assistance of counsel . . .” by improperly 21 treating his claims as arising under Rule 32. 22 concerning the trial court’s abuse of discretion does not state a violation of federal 23 constitutional law. 24 failed to exhaust his Ground 7 claims because he did not present them to the trial court. 25 Although Petitioner indicates that he presented this claim in his Motion to Reconsider 26 filed in the appellate court, (Petition at 12), PCR claims presented for the first time on 27 discretionary appeal are not fairly presented. Casey, 386 F.3d at 918. 28 (Petition at 12). Petitioner’s claim Additionally, Respondents persuasively point out that Petitioner Further, Petitioner’s claim is procedurally defaulted because he cannot return to - 19 - 1 state court to properly exhaust the claim. Petitioner would no longer have a remedy if he 2 returned to the Arizona courts to present the claims he raises here. Rule 32.2(a)(3) of the 3 Arizona Rules of Criminal Procedure provides that a defendant is precluded from post- 4 conviction relief on any ground that was waived in any previous collateral proceeding. 5 Further, the time has now passed to seek such review. See Ariz.R.Crim.P. 32.4(a); see 6 also Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir 2002) (a state post-conviction action is 7 futile when it is time-barred). Nor do the claims qualify for any of the timeliness 8 exceptions. See Ariz.R.Crim.P. 32.1(d)-(h). Thus, any additional petition would be 9 subject to summary dismissal. See State v. Rosario, 195 Ariz. 264, 266, 987 P.2d 226, 10 228 (App. 1999); State v. Jones, 182 Ariz. 432, 897 P.2d 734 (App. 1995); Moreno v. 11 Gonzalez, 192 Ariz. 131, 135, 962 P.2d 205, 209 (1998) (timeliness is a separate inquiry 12 from preclusion). On the instant record, Petitioner’s claims raised in his federal habeas 13 Petition are procedurally defaulted.6 Smith v. Baldwin, 510 F.3d 1127, 1139 (9th Cir. 14 2007) (“[W]here a petitioner did not properly exhaust state remedies and ‘the court to 15 which the petitioner would be required to present his claims in order to meet the 16 exhaustion requirement would now find the claims procedurally barred,’ the petitioner's 17 claim is procedurally defaulted.”) (quoting Coleman, 501 U.S. at 735 n. 1 ); Park v. 18 California, 202 F.3d 1146, 1150–51 (9th Cir. 2000) (federal habeas review is precluded 19 where petitioner has not raised his claim in the state courts and the time for doing so has 20 expired); Parra v. Ryan, No. 2014 WL 3747635 at *4 (D. Ariz. July 30, 2014) (same). 21 Petitioner has not established cause or prejudice to overcome the procedural 22 default in this case. Nor has he argued that a fundamental miscarriage of justice has 23 6 24 25 26 27 28 Because these claims are procedurally defaulted pursuant to Rule 32.4(a) of the Arizona Rules of Criminal Procedure, this Court need not determine whether the claims are of “sufficient constitutional magnitude” to require a knowing, voluntary, and intelligent waiver. See e.g. Cassett, 406 F.3d 614. Moreover, the procedural timeliness bar of Rule 32.4(a) is clear, consistently applied, and well established. Powell v. Lambert, 357 F.3d 871 (9th Cir. 2004); see e.g., Rosario, 195 Ariz. 264, 987 P.2d 226 (where petitioner did not raise claims pursuant to Rule 32.1(d) through (g), the petition could be summarily dismissed if untimely); Jones, 182 Ariz. at 434, 897 P.2d at 736; see also Wagner v. Stewart, 2008 WL 169639, *9 (D.Ariz. Jan. 16, 2008). - 20 - 1 occurred which would require this Court to address his claims on the merits. 2 Accordingly, Petitioner’s procedural default cannot be excused. Petitioner’s Ground 3 Seven as procedurally defaulted. 4 Moreover, the only federal constitutional claim set out in Ground Seven concerns 5 Petitioner’s allegation of ineffective assistance of PCR counsel who represented him 6 during his Seventh PCR proceeding. Petitioner cannot raise ineffectiveness of PCR 7 counsel as a freestanding constitutional claim. See Martinez v. Ryan, __ U.S. __, 132 8 S.Ct. 1309, 1315 (2012); Coleman,, 501 U.S. at 756–57 (“a criminal defendant has no 9 right to counsel beyond his first appeal in pursuing state discretionary or collateral 10 review[.]”). See also 28 U.S.C. § 2254(i). Instead, a claim that PCR counsel was 11 ineffective can support an equitable remedy to allow a federal habeas petitioner in 12 particular circumstances to attempt to overcome procedural bars to a claim that trial 13 counsel was ineffective. See Martinez, 132 S.Ct. at 1320 (“Where, under state law, claims 14 of ineffective assistance of trial counsel must be raised in an initial-review collateral 15 proceeding, a procedural default will not bar a federal habeas court from hearing a 16 substantial claim of ineffective assistance at trial if, in the initial-review collateral 17 proceeding, there was no counsel or counsel in that proceeding was ineffective.”). Thus, 18 even if Petitioner had exhausted his claim, he would still not be entitled to federal habeas 19 relief. 20 III. CONCLUSION 21 Petitioner is not entitled to habeas relief on any of the claims presented. As 22 discussed above, Grounds Two and Five do not fall within the core of habeas corpus. 23 Generally, a habeas petition may be construed as a complaint alleging civil rights 24 violations under 42 U.S.C. § 1983 where the pleading “is amenable to conversion on its 25 face, meaning that it names the correct defendants and seeks the correct relief[.]” Nettles, 26 830 F.3d at 936 (internal quotation marks and citation omitted) (before a petition may be 27 converted, the petitioner should also grant informed consent to convert the pleading). 28 Here, the Court declines to exercise its discretion to convert the Petition to a civil rights - 21 - 1 complaint. First, “the Court cannot construe a habeas corpus petition as a § 1983 2 complaint if it contains claims that fall within the ‘core of habeas corpus,’. . . .” Lyles v. 3 Los Angeles County Courts, 2016 WL 4472934 at *4 (quoting Nettles, 830 F.3 at 927); 4 see also Nettles, 830 F.3d at 927 (“The [U.S. Supreme] Court has long held that habeas is 5 the exclusive vehicle for claims brought by state prisoners that fall within the core of 6 habeas, and such claims may not be brought in a § 1983 action.”). 7 Second, it does not appear that Petitioner has named “the correct defendants” and 8 seeks “the correct relief.” See Rizzo v. Goode, 423 U.S. 362, 371-73, 377 (1976) (To 9 state a valid claim under §1983, the plaintiff must allege that he suffered a specific injury 10 as a result of specific conduct of a defendant and show some affirmative link between the 11 injury and that defendant’s conduct.); Barren v. Harrington, 152 F.3d 1193, 1194 (9th 12 Cir. 1998) (“Liability under § 1983 must be based on the personal involvement of the 13 defendant.”). Moreover, to the extent that Plaintiff names ADOC Director Charles Ryan, 14 to establish liability under § 1983 for Director Ryan in his official capacity, the plaintiff 15 must allege injuries resulting from a policy, practice, or custom of the agency over which 16 that individual has final policy-making authority. See Cortez v. County of Los Angeles, 17 294 F.3d 1186, 1188 (9th Cir. 2002). Further, there is no respondeat superior liability 18 under § 1983, which means that a defendant’s position as the supervisor of someone who 19 allegedly violated a plaintiff’s constitutional rights does not make him liable. Monell v. 20 N.Y. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978); Taylor v. List, 880 F.2d 1040, 1045 21 (9th Cir.1989) (citation omitted). A supervisor in his individual capacity “is only liable 22 for constitutional violations of his subordinates if the supervisor participated in or 23 directed the violations, or knew of the violations and failed to act to prevent them.” 24 Taylor, 880 F.2d at 1045. To any extent that Petitioner would seek to sue Charles Ryan 25 in his official capacity as Director of ADOC, Petitioner must allege facts showing that 26 ADOC’s policy or custom led to the alleged violation. See Hafer v. Melo, 502 U.S. 21, 25 27 (1991). 28 Additionally, a “habeas corpus action and a prisoner civil rights suit differ in a - 22 - 1 variety of respects—such as the proper defendant, filing fees, the means of collecting 2 them, and restrictions on future filings—that may make recharacterization impossible or, 3 if possible, disadvantageous to the prisoner compared to a dismissal without prejudice of 4 his petition for habeas corpus.” Nettles, 830 F.3d at 935 (internal quotation marks and 5 citation omitted). For instance, the congressionally mandated filing fee for a prisoner 6 civil rights complaint is currently $350, whereas the fee for a habeas petition is $5. See 7 28 U.S.C. § 1914(a). While a civil rights action may proceed despite the prisoner’s 8 inability to prepay the entire $350 if he is granted leave to proceed in forma pauperis 9 (“IFP”) under 28 U.S.C. § 1915(a), he must still agree to pay the entire filing fee in 10 installments, even if his complaint is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & 11 (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002). Here, Petitioner has neither 12 paid the required fee to file a civil rights action nor filed an IFP request to proceed with a 13 § 1983 action.7 In addition, if Petitioner files an IFP request, the Court would be 14 obligated to screen the converted petition under 28 U.S.C. § 1915(e)(2) to determine 15 whether the action is frivolous or malicious, fails to state a claim on which relief might be 16 granted, or seeks monetary relief against a defendant who is immune from such relief. 17 And if the converted petition were ultimately dismissed on the grounds that it is 18 frivolous, malicious, or fails to state a claim, that dismissal would count as a “strike” 19 against Petitioner for purposes of 28 U.S.C. § 1915(g), which provides that a prisoner 20 who has three “strikes” may not bring an action or appeal without prepayment of the full 21 filing fee “unless the prisoner is under imminent danger of serious physical injury.”8 22 Consequently, the Court finds that it is appropriate to dismiss Grounds Two and 23 Five of the Petition without prejudice so that Petitioner has the opportunity to decide 24 7 25 26 27 28 The form to proceed in forma pauperis in a habeas proceeding, which Petitioner submitted at the commencement of this action (Doc. 2), differs from that required of prisoner’s in civil rights actions. 8 Nor do any statute of limitations implications give this Court pause. Grounds Two and Five arose in 2011 and Petitioner did not file his habeas petition until 2014. See TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999) (two-year statute of limitations applies). To the extent that the statute of limitations may be implicated, the same equitable tolling arguments that Petitioner could raise were the petition converted, remain available upon refiling of the claims. - 23 - 1 whether he wishes to incur the required filing fee and raise his claims through a civil 2 rights complaint.9 See Reyes v. California Dep’t of Corrections, 2017 WL 104313 (C.D. 3 Cal. Jan. 9, 2017) (declining to exercise discretion to convert habeas petition to §1983 4 complaint under Nettles); Allsworth v. Langford, 2016 WL 4975132 (C.D. Cal. Sept. 15, 5 2016) (same). IV. CERTIFICATE OF APPEABILITY 6 In the event Petitioner appeals from this Court’s judgment, and in the interests of 7 8 9 10 11 12 conserving scarce resources that otherwise might be consumed drafting an application for a certificate of appealability to this Court, the Court on its own initiative has evaluated the claims within the Petition for suitability for the issuance of a certificate of appealability. See 28 U.S.C. § 2253(c); Fed.R.App.P. 22(b); Turner v. Calderon, 281 F.3d 851, 864–65 (9th Cir. 2002). Pursuant to 28 U.S.C. § 2253(c)(2), a Certificate of Appealability (“COA”) may 13 14 15 16 17 18 19 20 issue only when a petitioner “has made a substantial showing of the denial of a constitutional right.” 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). For procedural rulings, a COA will issue only if reasonable jurists could debate whether the petition states a valid claim of the denial of a constitutional right and whether the court's procedural ruling was correct. Id. 21 22 23 Upon review of the record in light of the standards for granting a certificate of appealability, the Court concludes that a certificate shall not issue as the resolution of the //// 24 25 26 27 28 9 If Petitioner elects to bring a civil rights action based on the instant claims, he must complete the applicable federal complaint forms and submit them with either the $350 filing fee (plus the $50.00 filing fee imposed by this Court, for a total filing fee of $400) or a properly supported IFP request. See 28 U.S.C. § 1915(a)(1). He should not use the case number from this action, as the Clerk will assign a new case number to the civil rights action. - 24 - 1 instant Petition is not debatable among reasonable jurists and does not deserve further 2 proceedings. 3 Accordingly, for the foregoing reasons, 4 IT IS ORDERED that Petitioner’s Petition under 28 U.S.C. § 2254 for Writ of 5 Habeas Corpus by a Person in State Custody (Doc. 1) is: 6 (1) DENIED with regard to Ground One; and 7 (2) DISMISSED with regard to Grounds Two through Seven. 8 IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED and 9 shall not issue. 10 The Clerk of Court is DIRECTED to send to Petitioner: 11 (1) 12 a copy of the Instructions for a Prisoner Filing a Civil Rights Complaint in the U.S. District Court for the District of Arizona; and (2) 13 a copy of the Instructions for Prisoners Applying for Leave to Proceed In 14 Forma Pauperis Pursuant to 28 U.S.C. § 1915 in a Civil Action (Non-habeas) in Federal 15 Court. 16 17 18 The Clerk of Court is FURTHER DIRECTED to enter judgment consistent with this Order and to close the file in this matter. Dated this 28th day of March, 2017. 19 20 21 22 23 24 25 26 27 28 - 25 -

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